Checks and Balances in the Present Constitution

Moreover, the recent ruling given by the Speaker in Parliament on January 9, 2026, on the Opposition Motion to appoint a Select Committee to review recent appointments made by the JSC to the Judiciary further buttresses the explicit recognition of the SOP and the independence of the Judiciary. The Speaker reiterated the commitment of Parliament to the doctrine of the SOP and refused the Motion on the basis inter alia that Parliament was not hierarchically superior to the Judiciary and cannot be permitted to control the judiciary by creating an oversight mechanism with regard to the JSC.

Professor G.L. Peiris (Prof. GLP) in a speech delivered on December 12, 2025 at the International Research Conference at the Faculty of Law, University of Colombo published in The Island of December 15, 2025 under the caption “Presidential authority in times of emergency – A contemporary appraisal” has critiqued the majority judgment of the Supreme Court of Sri Lanka in Ambika Sathkunanathan V. A.G. on the declaration of emergency by Ranil Wickremesinghe as Acting President on July17, 2022 in response to the Aragalaya. The majority held that Wickremasinghe had violated the Fundamental Rights of the people by a Declaration of a State of Emergency. The author was to attend this event but was unable to do so due to a professional commitment out of Colombo.

After citing authority from several foreign jurisdictions in support of his view of judicial deference to the Executive on matters relating to an Emergency, he advances as one of the grounds as to why the majority were wrong in the Sri Lankan context is that the predisposition to judicial deference is reinforced by a firmly entrenched constitutional norm – “a foundational principle of our public law is the vesting of judicial power not in the courts but in parliament, which exercises judicial power through the instrument of the courts. This is made explicit by Article 4(c) of the constitution which provides “the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its members, wherein the judicial power of the People may be exercised directly by Parliament according to law” . Prof GLP opines that the majority judgment constitutes “judicial overreach which has many undesirable consequences” including “traducing constitutional traditions; subverting the specific model of separation of powers reflected in our Constitution”.

Prof. GLP, is in effect advancing the view that the Sri Lankan Courts in the present constitutional framework of the Second Republican Constitution 1978 are subservient to the Executive or Parliament.

This view of Prof. GLP is with respect, wrong on both constitutional principle and policy. There are no constitutional restraints on the judicial review of executive action in relation to declarations of emergency. Self-imposed judicial restraint may well constitute an abdication of judicial responsibility.

Unlike the Independence Constitution where a Separation of Powers (SOP) was found by judicial interpretation with the concomitant judicial power to even strike down post enacted legislation, the 1^st Republican Constitution of 1972 explicitly did away with the concept of an SOP and instead whilst vesting sovereignty in the people, nevertheless made the National State Assembly the supreme instrument of state power exercising the Executive, Legislative and Judicial power of the people (vide Article 5). Resultantly the judicial review of enacted legislation was expressly done away with and instead pre-enactment review of a Bill tabled in Parliament by a Constitutional Court was provided for.

Indisputably, this fundamental departure introduced by the First Republican Constitution was a direct response to the Queen V. Liyanage and the other judicial power cases where the Courts expressly recognised an SOP and the jurisdiction to even review the constitutionality of post enacted legislation.

But this doctrine of the abolishing of the SOP was subsequently abandoned, and one of the significant and welcome departures introduced by the Second Republican Constitution of 1978 was the explicit reintroduction into our constitutional framework of the principle of an SOP. This is made explicit by Articles 3 and 4 of the Constitution which vests Sovereignty in the people but proceeds to delineate how that sovereignty is exercised in terms of the trichotomy of the Executive, Legislative and Judicial powers and the further recognition of franchise and Fundamental Rights as also integral components of the sovereignty of the people.

Although the twin principles introduced in 1972 of a constitutional bar on the post-enactment review of legislation was retained together with the pre-enactment review of legislation in the present 1978 Constitution, nevertheless the reintroduction of the SOP which guarantees the independence of the Judiciary is a fundamental feature of the present Constitution.

Although Article 4(c) of the present Constitution does state that “the judicial power of the People shall be exercised by Parliament through courts … recognised by the Constitution … except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law”, nevertheless there is a cursus curiae (practice of the court) of judicial authority by the Sri Lankan superior Courts that have recognised both the concepts of the SOP and the independence of the Judiciary from Executive or Legislative encroachment.

Leading cases which have recognized an SOP include Premachandra V. Monty Jayawickrema (1994) 2 SLR 90 (SC) and the Supreme Court Determination on the 19^th Amendment to the Constitution (2002) in which the author appeared as Junior Counsel to the late Deshamanya H.L. de Silva P.C. The Supreme Court has recognised that the independence of the Judiciary is an intrinsic component of the present Constitution in several cases including the Court’s Determination on the Industrial Disputes Act (Special Provisions) Bill 2022. In fact, a more explicit pronouncement was made in Hewamanne V. De Silva where the Supreme Court held that judicial power vested solely and exclusively in the Judiciary (1983) 1 SLR 1 at 20.

Moreover, the explicit vesting in the Supreme Court of Sri Lanka under Articles 125 and 126 of the exclusive jurisdiction to interpret the Constitution and in respect of Fundamental Rights underscores the preeminent role of the Judiciary in our constitutional framework. Foundational principle of the present Constitution as recognized by our Courts include the Rule of Law, power is a trust, and there are no unfettered discretion in public law. Regrettably, Prof. GLP assails these welcome advances made in our public law jurisprudence.

In our constitutional setting of checks and balances and judicial oversight it is the function of the Judiciary to review the legality of Executive action, including matters relating to the declaration of a State of Emergency and Emergency Regulations. The duty of interpreting an Act of Parliament is a function of Courts and not of Parliament (Court of Appeal in C.W.C. V. Superintendent, Beragala Estates 76 NLR 1). The author cited this decision to the Supreme Court in challenging the Inland Revenue Bill introduced by the late Mangala Samaraweera. That Court reiterated this principle and agreeing with the author, ordered a referendum on a particular Clause.

Even in the pre-independence period up to 1948, when vide powers were conferred on the Governor who exercised Executive authority, the Courts have unequivocally reviewed the legality of executive action as manifest by the significant decision of the Supreme Court in 1937 in “In Re. Mark Anthony Lester Bracegirdle“, where the executive act of the Governor of arrest and deportation of Bracegirdle to Australia was reviewed by the Supreme Court and quashed. This decision was a striking assertion of judicial independence and is the first significant judicial review of executive action.

Moreover, the recent ruling given by the Speaker in Parliament on January 9, 2026, on the Opposition Motion to appoint a Select Committee to review recent appointments made by the JSC to the Judiciary further buttresses the explicit recognition of the SOP and the independence of the Judiciary. The Speaker reiterated the commitment of Parliament to the doctrine of the SOP and refused the Motion on the basis inter alia that Parliament was not hierarchically superior to the Judiciary and cannot be permitted to control the judiciary by creating an oversight mechanism with regard to the JSC.

(The author is a President’s Counsel and a Professor of Law)

By Nigel Hatch1

Trump is full of surprises; he is both leader and entertainer. Nearly nine hours into a long flight, a journey that had to U-turn over technical issues and embark on a new flight, Trump came straight to the Davos stage and spoke for nearly two hours without a sip of water. What he spoke about in Davos is another issue, but the way he stands and talks is unique in this 79-year-old man who is defining the world for the worse. Now Trump comes up with the Board of Peace, a ticket to membership that demands a one-billion-dollar entrance fee for permanent participation. It works, for how long nobody knows, but as long as Trump is there it might. Look at how many Muslim-majority and wealthy countries accepted: Saudi Arabia, Turkey, Egypt, Jordan, Qatar, Pakistan, Indonesia, and the United Arab Emirates are ready to be on board. Around 25–30 countries reportedly have already expressed the willingness to join.

The most interesting question, and one rarely asked by those who speak about Donald J. Trump, is how much he has earned during the first year of his second term. Liberal Democrats, authoritarian socialists, non-aligned misled-path walkers hail and hate him, but few look at the financial outcome of his politics. His wealth has increased by about three billion dollars, largely due to the crypto economy, which is why he pardoned the founder of Binance, the China-born Changpeng Zhao. “To be rich like hell,” is what Trump wanted. To fault line liberal democracy, Trump is the perfect example. What Trump is doing — dismantling the old façade of liberal democracy at the very moment it can no longer survive — is, in a way, a greater contribution to the West. But I still respect the West, because the West still has a handful of genuine scholars who do not dare to look in the mirror and accept the havoc their leaders created in the name of humanity.

Democracy in the Arab world was dismantled by the West. You may be surprised, but that is the fact. Elizabeth Thompson of American University, in her book How the West Stole Democracy from the Arabs, meticulously details how democracy was stolen from the Arabs. “No ruler, no matter how exalted, stood above the will of the nation,” she quotes Arab constitutional writing, adding that “the people are the source of all authority.” These are not the words of European revolutionaries, nor of post-war liberal philosophers; they were spoken, written and enacted in Syria in 1919–1920 by Arab parliamentarians, Islamic reformers and constitutionalists who believed democracy to be a universal right, not a Western possession. Members of the Syrian Arab Congress in Damascus, the elected assembly that drafted a democratic constitution declaring popular sovereignty — were dissolved by French colonial forces. That was the past; now, with the Board of Peace, the old remnants return in a new form.

Trump got one thing very clear among many others: Western liberal ideology is nothing but sophisticated doublespeak dressed in various forms. They go to West Asia, which they named the Middle East, and bomb Arabs; then they go to Myanmar and other places to protect Muslims from Buddhists. They go to Africa to “contribute” to livelihoods, while generations of people were ripped from their homeland, taken as slaves and sold.

How can Gramsci, whose 135^th birth anniversary fell this week on 22 January, help us escape the present social-political quagmire? Gramsci was writing in prison under Mussolini’s fascist regime. He produced a body of work that is neither a manifesto nor a programme, but a theory of power that understands domination not only as coercion but as culture, civil society and the way people perceive their world. In the Prison Notebooks he wrote, “The crisis consists precisely in the fact that the old world is dying and the new cannot be born; in this interregnum a great variety of morbid phenomena appear.” This is not a metaphor. Gramsci was identifying the structural limbo that occurs when foundational certainties collapse but no viable alternative has yet emerged.

The relevance of this insight today cannot be overstated. We are living through overlapping crises: environmental collapse, fragmentation of political consensus, erosion of trust in institutions, the acceleration of automation and algorithmic governance that replaces judgment with calculation, and the rise of leaders who treat geopolitics as purely transactional. Slavoj Žižek, in his column last year, reminded us that the crisis is not temporary. The assumption that history’s forward momentum will automatically yield a better future is a dangerous delusion. Instead, the present is a battlefield where what we thought would be the new may itself contain the seeds of degeneration. Trump’s Board of Peace, with its one-billion-dollar gatekeeping model, embodies this condition: it claims to address global violence yet operates on transactional logic, prioritizing wealth over justice and promising reconstruction without clear mechanisms of accountability or inclusion beyond those with money.

Gramsci’s critique helps us see this for what it is: not a corrective to global disorder, but a reenactment of elite domination under a new mechanism. Gramsci did not believe domination could be maintained by force alone; he argued that in advanced societies power rests on gaining “the consent and the active participation of the great masses,” and that domination is sustained by “the intellectual and moral leadership” that turns the ruling class’s values into common sense. It is not coercion alone that sustains capitalism, but ideological consensus embedded in everyday institutions — family, education, media — that make the existing order appear normal and inevitable. Trump’s Board of Peace plays directly into this mode: styled as a peace-building institution, it gains legitimacy through performance and symbolic endorsement by diverse member states, while the deeper structures of inequality and global power imbalance remain untouched.

Worse, the Board’s structure, with contributions determining permanence, mimics the logic of a marketplace for geopolitical influence. It turns peace into a commodity, something to be purchased rather than fought for through sustained collective action addressing the root causes of conflict. But this is exactly what today’s democracies are doing behind the scenes while preaching rules-based order on the stage. In Gramsci’s terms, this is transformismo — the absorption of dissent into frameworks that neutralize radical content and preserve the status quo under new branding.

If we are to extract a path out of this impasse, we must recognize that the current quagmire is more than political theatre or the result of a flawed leader. It arises from a deeper collapse of hegemonic frameworks that once allowed societies to function with coherence. The old liberal order, with its faith in institutions and incremental reform, has lost its capacity to command loyalty. The new order struggling to be born has not yet articulated a compelling vision that unifies disparate struggles — ecological, economic, racial, cultural — into a coherent project of emancipation rather than fragmentation.

To confront Trump’s phenomenon as a portal — as Žižek suggests, a threshold through which history may either proceed to annihilation or re-emerge in a radically different form — is to grasp Gramsci’s insistence that politics is a struggle for meaning and direction, not merely for offices or policies. A Gramscian approach would not waste energy on denunciation alone; it would engage in building counter-hegemony — alternative institutions, discourses, and practices that lay the groundwork for new popular consent. It would link ecological justice to economic democracy, it would affirm the agency of ordinary people rather than treating them as passive subjects, and it would reject the commodification of peace.

Gramsci’s maxim “pessimism of the intellect, optimism of the will” captures this attitude precisely: clear-eyed recognition of how deep and persistent the crisis is, coupled with an unflinching commitment to action. In an age where AI and algorithmic governance threaten to redefine humanity’s relation to decision-making, where legitimacy is increasingly measured by currency flows rather than human welfare, Gramsci offers not a simple answer but a framework to understand why the old certainties have crumbled and how the new might still be forged through collective effort. The problem is not the lack of theory or insight; it is the absence of a political subject capable of turning analysis into a sustained force for transformation. Without a new form of organized will, the interregnum will continue, and the world will remain trapped between the decay of the old and the absence of the new.

by Nilantha Ilangamuwa ✍️

Designed by the victors and led by the US, its institutions — from the United Nations system to Bretton Woods — were shaped to preserve western strategic and economic primacy. Yet despite their self-serving elements, these arrangements helped maintain a degree of global stability, predictability and prosperity for nearly eight decades. That order is now under strain.

This was evident even at Davos, where US President Donald Trump — despite deep differences with most western allies — framed western power and prosperity as the product of a shared and “very special” culture, which he argued must be defended and strengthened. The emphasis on cultural inheritance, rather than shared rules or institutions, underscored how far the language of the old order has shifted.

As China’s rise accelerates and Russia grows more assertive, the US appears increasingly sceptical of the very system it once championed. Convinced that multilateral institutions constrain American freedom of action, and that allies have grown complacent under the security umbrella, Washington has begun to prioritise disruption over adaptation — seeking to reassert supremacy before its relative advantage diminishes further.

What remains unclear is what vision, if any, the US has for a successor order. Beyond a narrowly transactional pursuit of advantage, there is little articulation of a coherent alternative framework capable of delivering stability in a multipolar world.

The emerging great powers have not yet filled this void. India and China, despite their growing global weight and civilisational depth, have largely responded tactically to the erosion of the old order rather than advancing a compelling new one. Much of their diplomacy has focused on navigating uncertainty, rather than shaping the terms of a future settlement. Traditional middle powers — Japan, Germany, Australia, Canada and others — have also tended to react rather than lead. Even legacy great powers such as the United Kingdom and France, though still relevant, appear constrained by alliance dependencies and domestic pressures.

st Asia, countries such as Saudi Arabia and the UAE have begun to pursue more autonomous foreign policies, redefining their regional and global roles. The broader pattern is unmistakable. The international system is drifting toward fragmentation and narrow transactionalism, with diminishing regard for shared norms or institutional restraint.

Recent precedents in global diplomacy suggest a future in which arrangements are episodic and power-driven. Long before Thucydides articulated this logic in western political thought, the Mahabharata warned that in an era of rupture, “the strong devour the weak like fish in water” unless a higher order is maintained. Absent such an order, the result is a world closer to Mad Max than to any sustainable model of global governance.

It is precisely this danger that Canadian Prime Minister Mark Carney alluded to in his speech at Davos on Wednesday. Warning that “if great powers abandon even the pretense of rules and values for the unhindered pursuit of their power and interests, the gains from transactionalism will become harder to replicate,” Carney articulated a concern shared by many middle powers. His remarks underscored a simple truth: Unrestrained power politics ultimately undermine even those who believe they benefit from them.

Carney’s intervention also highlights a larger opportunity. The next phase of the global order is unlikely to be shaped by a single hegemon. Instead, it will require a coalition — particularly of middle powers — that have a shared interest in stability, openness and predictability, and the credibility to engage across ideological and geopolitical divides. For many middle powers, the question now is not whether the old order is fraying, but who has the credibility and reach to help shape what comes next.

This is where India’s role becomes pivotal. India today is no longer merely a balancing power. It is increasingly recognised as a great power in its own right, with strong relations across Europe, the Indo-Pacific, West Asia, Africa and Latin America, and a demonstrated ability to mobilise the Global South. While India’s relationship with Canada has experienced periodic strains, there is now space for recalibration within a broader convergence among middle powers concerned about the direction of the international system.

One available platform is India’s current chairmanship of BRICS — if approached with care. While often viewed through the prism of great-power rivalry, BRICS also brings together diverse emerging and middle powers with a shared interest in reforming, rather than dismantling, global governance. Used judiciously, it could complement existing institutions by helping articulate principles for a more inclusive and functional order.

More broadly, India is uniquely placed to convene an initial core group of like-minded States — middle powers, and possibly some open-minded great powers — to begin a serious conversation about what a new global order should look like. This would not be an exercise in bloc-building or institutional replacement, but an effort to restore legitimacy, balance and purpose to international cooperation. Such an endeavour will require political confidence and the willingness to step into uncharted territory. History suggests that moments of transition reward those prepared to invest early in ideas and institutions, rather than merely adapt to outcomes shaped by others.

The challenge today is not to replicate Bretton Woods or San Francisco, but to reimagine their spirit for a multipolar age — one in which power is diffused, interdependence unavoidable, and legitimacy indispensable. In a world drifting toward fragmentation, India has the credibility, relationships and confidence to help anchor that effort — if it chooses to lead.

(The Hindustan Times)

(Milinda Moragoda is a former Cabinet Minister and diplomat from Sri Lanka and founder of the Pathfinder Foundation, a strategic affairs think tank. this article can read on

https://shorturl.at/HV2Kr and please contact via email@milinda.org)

by Milinda Moragoda ✍️
For many middle powers, the question now is not whether the old order is fraying,
but who has the credibility and reach to help shape what comes next