Image: Security personnel on duty at a checkpoint in Minuwangoda of Gampaha in the outskirts of Colombo, Sri Lanka on Oct. 4, 2020. (Photo by A.Hapuarachchi/Xinhua/MaxPPP)
Sri Lanka’s present constitution has been amended 19 times since its enactment in 1978. Last month the newly elected government tabled the 20th amendment (20A) to the constitution.
This amendment seeks to grant more powers to the already powerful executive president, weakens parliament, the prime minister and ministers, reduces the independence of the judiciary and statutory institutions and makes it difficult for citizens to be part of law-making and challenging the executive.
This is similar to the 18th amendment to the constitution under the previous Rajapaksa administration, which was reversed by the previous government through the 19th amendment.
Under the 20A, the chief justice and judges to the Supreme and Appeal Courts, the auditor general, the attorney general and the ombudsman are to be appointed by the president.
The 20A also gives the president sole discretion to appoint persons to the Judicial Service Commission, the Public Service Commission, the Human Rights Commission and the Police Commission, which is likely to undermine their independence.
The powers of the Election Commission are reduced and the president has ultimate discretion in appointing the Chair and members of the Election Commission.
The Commission to Investigate Bribery and Corruption is stripped of its constitutional recognition and the National Procurement Commission and the National Audit Service Commission are abolished.
Judiciary and statutory commissions that are independent of the executive are essential for the rule of law, particularly to prevent and respond to excesses of a powerful executive elected by the majority.
The Constitutional Council, a body that includes MPs from different parties and citizens of eminence and integrity, is replaced with a Parliamentary Council, a body that will only have MPs from the government and opposition, with the president having powers to remove the nominee of the opposition leader.
At present, appointments to the Right to Information Commission, Office of Missing Persons and Office of Reparations should be based only on recommendations of the Constitutional Council and there is a question mark whether these institutions will survive once the present members’ terms expire, as the 20A seeks to scrap the Constitutional Council.
The 20A will limit the auditing of the Offices of Secretaries to the president and prime minister and state-owned companies, which will also reduce parliament’s financial oversight.
The 19A enabled citizens to file fundamental rights petitions against the president in the Supreme Court, but the 20A takes this away, denying citizens the opportunity to seek judicial redress for rights violations by the president.
The 20A weakens parliament, the prime minister and ministers, and increases the president’s hold over them.
According to the present constitution, the president can only dissolve parliament six months before its term expires or based on a resolution of two-thirds of MPs, but the 20A allows the president to dissolve parliament four years before its five-year term expires or at request of the majority of MPs.
The proposed amendment increases the powers of the president to appoint and remove ministers, including the prime minister and empowers the president to submit referendum bills rejected by parliament. The present constitution does not allow the president to hold ministerial portfolios, but the 20A will reverse this.
The 20A reduces the time draft bills to be tabled in parliament are accessible to the public from 14 days to seven days.
And the 20A facilitates “urgent bills” that do not have to be gazetted and citizens may not know the contents of such bills until they are passed by parliament. The president has discretion to refer urgent bills to the Supreme Court, but even if citizens come to know of such a bill, they have no right to intervene.
Media has reported that the government has promised to make changes when the 20A is debated at the committee stage in parliament. However, changes proposed at the committee stage will not be subjected to public and judicial scrutiny before they are adopted.
Back in 2013, through a landmark Pastoral Letter, all Catholic bishops in the country took the position that in the revision of a constitution, a broad consensus among civil society, religious leaders, various ethnic and political groups should be sought and that it should not only be approved by two-thirds of parliament, but at a referendum devoid of political interference.
They also said power should not be centered around the president and stressed the importance of checks and balances.
The Catholic bishops also insisted the president should not be immune from prosecution as that would hinder any citizen from challenging any undemocratic or illegal actions of the executive.
The bishops also said a constitutional council should approve or propose names for important appointments.
In 2015, the Catholic bishops said the repeal of the 18A will strengthen the independence of the judiciary and uphold the principles of the rule of law, and called on all parties to support the 19A. But strangely, the Catholic bishops have been silent about the 20A.
However, opposition politicians, lawyers, journalists, human rights activists and the Sri Lanka Audit Service Association have voiced opposition to the 20A.
They have been raising awareness about the dangers of the proposed amendment and as this is being written, 39 cases filed against the 20A are being heard in the Supreme Court.
A key demand has been the need for a referendum, citing provisions in the 20A that violate the existing constitution.
The National Christian Council of Sri Lanka has expressed deep concerns about the contents as well as the process related to the 20A. The Christian Solidarity Movement, an ecumenical group, has also opposed the 20A, joining other activists in going to courts, distributing leaflets and organizing a public prayer service and discussion.
The 20A is blatantly promoting authoritarianism and tyranny and is an obstacle to building God’s reign in Sri Lanka.
Christians must follow the biblical teaching “You will not be led into wrong-doing by the majority nor, when giving evidence in a lawsuit, side with the majority to pervert the course of justice” (Exodus 23:2) and join hands with all like-minded persons and groups to oppose the 20A.