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Thinking about constitutional amendments as Christians

by Sanjit Dias

Go Home Gota!

Three words that have been plastered all over our social media feeds, television screens and posters all over the country. Since 9th April 2022, Galle Face has hosted Sri Lanka’s latest real estate project - not a swanky new 7-star hotel (for once), but a village of protest established by, for and of the common people: Gotagogama. For the first time in Sri Lanka’s recent history, average citizens have been fearless about making their voices heard, to sound out the hardships they face on a daily basis, and to disparage in the harshest terms the politicians who have brought this fate upon them.

How did we get here? There are too many political and historical developments to list, and if I attempted to provide the full background to these events, you would not read this to the end! However, those who wish to trace these developments may want to look at: Mahinda Rajapakse’s election as President in 2005, the end of the war in 2009, the second Rajapakse administration from 2010, the 18th amendment to the constitution, public discontent over large-scale corruption and nepotism towards the end of that regime, the election of President Maithripala Sirisena and the Yapalanaya government in 2015, the 19th amendment, the Central Bank bond scam, the emergence of the Sri Lanka Podu Jana Peramuna (SLPP), the constitutional coup of 2018, the Easter Sunday attacks of 2019, the election of President Gotabaya Rajapakse, COVID-19, the election of the Pohottuwa (SLPP) government in 2020, the 20th amendment, the tax cuts of 2019, and the chemical fertilizer ban.

Public anger has been directed primarily against President Gotabaya Rajapakse and the Rajapakse family. But amidst the anger there has emerged a consensus on the evils of the executive presidential system, in which a vast amount of power is concentrated in the hands of one person. This is why one of the common refrains at Gotagogama has been for a “system-change”. Though ambiguous, one of its interpretations has been a call for a 21st amendment which would abolish the executive presidency altogether. This call has received support from all quarters, including from President Rajapakse himself.

Two drafts have now been gazetted: the 21st amendment presented as a Private Member’s Bill by Ranjith Madduma Bandara, the General-Secretary of the Samagi Jana Balavegaya (SJB), and the “22nd” amendment (so labelled because of parliamentary practice) presented by Wijeyedasa Rajapakshe, now the new Minister of Justice. I will consider focus on the former, because it is much broader, and - as I will demonstrate - much more responsive to the people’s demands, though .it appears that the 22nd amendment may be what is taken forward by the cabinet of ministers. I will first summarise the key changes introduced by this the 21st amendment, and discuss their significance. I will thereafter suggest a frame through which we may view these changes as Christians. 

The significant amendments can be categorized as follows: (1) abolition of the presidential system, and transfer of power to a parliamentary system; (2) increasing accountability of members of parliament by restricting the freedom to ‘cross-over’ for personal gain; (3) reintroduction of democratizing institutions.

 

Abolition of the presidential system

The presidential system, introduced by the 2nd Republican Constitution (1978), envisioned a president directly elected by the people, whose tenure would not be disturbed by shifting majorities in parliament. This was seen as a way to ensure that long-term government policies (particularly on economic development) could be carried out. This saw the concentration of a lot of power in the hands of the president, including the power to appoint ministers, ministry secretaries, and other high officers of government. 

The constitution thereafter see-sawed between the 17th to 20th amendments, with the constitutional council acting as a check on the president’s power to make certain appointments (17th and 19th) and the parliamentary council which was - effectively - a mere rubber-stamp (18th and 20th).

The 21st amendment (“21A”) goes all the way and abolishes the presidential system. The president will no longer be elected directly by the people, but by parliament. Parliament can elect an MP, or any other citizen to that post, but as long as that person is president, they cannot hold office in or be a member of any political party.  He is thus intended to act in an apolitical, non-partisan manner. This is a significant change, as it eliminates the president’s control over members of parliament. 

The reduction in the powers and functions of the president is accompanied by the strengthening of the prime minister (“PM”) and parliament. The prime minister will be the head of the cabinet of ministers. In many of the president’s decisions, including the determination of ministries and the assignment of subjects and functions, he must act on the advice of the PM. The president can also be removed by a resolution passed by half of the total number of members of parliament, without the long-drawn out process of impeachment that exists at present.

For decades, presidential candidates have promised to abolish the executive presidential system, only to fail to deliver when they are elected. This amendment responds to the people’s demand both past and present, and finally accomplishes this long overdue change. The 22nd amendment (“22A”), in comparison, does not abolish this system, and seeks to return to the position after the 19th amendment, where power was shared (read: fought over) between the president and prime minister. This is the most crucial distinction between the two, and is the reason why 22A falls short of meeting the present demands of the public. 

 

Restrictions on ‘cross-overs’

21A includes amendments which work to disincentivize ‘cross-overs’ for personal benefit. This has long been a weakness in the existing system, and a point of particular displeasure among the public. MPs from the opposition are lured to cross over and join the government with the offer of various ministerial portfolios. This has taken place in almost every parliamentary cycle since 1978, and was seen during the constitutional coup of 2018, at the 20th amendment in 2020, and even very recently, with the “new” interim government formed by prime minister Ranil Wickremesinghe.

The amendments reduce the scope for courts to interfere with disciplinary action taken by political parties against members who cross over, and - regardless of the court’s decision - disqualify such MPs from accepting ministerial portfolios in a government formed by any political party except the party from which they were elected in that cycle. This means that the government will have significantly less room to lure opposition MPs to cross ranks, and oppositions MPs will have significantly less incentive to do so in the future. The result? They are more likely to stay true to the mandate given by the people who voted them in. 22A does not deal with this issue. 

 

Reintroduction of democratizing institutions

The 21st amendment reintroduces the constitutional council: a crucial institution which allows greater participation in the decision-making process of appointments to the independent commissions and high government offices. Currently, the president can make these appointments unilaterally, as the parliamentary council can only give its “observations” on prospective nominees. The constitutional council mechanism thus gives greater legitimacy to the appointments, and can restore public confidence in the relevant officers and institutions.

21A also reintroduces constitutional recognition for the Commission to Investigate Allegations of Bribery or Corruption (CIABOC), and reintroduces the Audit Service Commission and the National Procurement Commission. These are crucial institutions which must be built up and strengthened in order to fight corruption - especially large-scale corruption which increases public indebtedness and is borne by the poorest tax-payer. These provisions were removed by the 20th amendment, which further delegitimized the governance of the present regime.

Finally, 21A introduces two new institutions - the National Security Council and the Council of State. These can be seen as responses to events in Sri Lanka’s recent history. The Easter Sunday attacks have been blamed in part on the dysfunctional operation of the National Security Council; 21A makes it clear who should be involved, and makes it a constitutional requirement that it function. Furthermore, the recent public protests have shown citizen activism on a scale never seen before, and a desire for more direct involvement in policy-making. The Council of State will facilitate direct public participation in governance by allowing the public to provide advice to the government.

 

Approaching 21A as Christians

What should we think about all of this? Should any of this matter to us as Christians at all? I think it should.

Jesus’ incarnation was the starting point of his saving work. He left the glory of heaven to take human form, so that he could live among us, experience all our emotions, and share our pain and suffering. As followers of Jesus, we too are called to live incarnationally - not to stand apart from our fellow citizens, but to share their joys and sufferings and to stand in solidarity with them. This means that whatever disturbs those around us should also disturb us. This includes poor governance. 

What does the Bible have to say about governance in 21st century Sri Lanka? Quite a lot - but only if we read it carefully. We cannot replicate Old Testament models, nor are we expected to. The nation of Israel was originally a theocracy ruled directly by God, and subsequently a monarchy with a King who was expected to be obedient to God and his commandments. Obviously, this is not what Christians should lobby for today. But there is plenty in the Bible that speaks about what a good system of governance should look like.

First, the whole Bible speaks of the fallibility of humans, and their sinful nature. This is a key principle that should inform the way Christians think about governance and leadership. Particularly in Sri Lankan politics, there has always been a tendency for people to look for a ‘saviour’ figure: one man or woman who will solve every problem and deliver economic prosperity and human flourishing. Time and again, we have been disappointed by the results - and Christians should not be surprised. The people who enter these roles are fallible - they consult the wrong people, they prioritise what is popular over what is right, and they turn a blind eye to corruption and injustice. Thus, when we think about systems of government, we should bear in mind that all people are sinful, and that no one can be trusted to do everything right. 

Second, when the Israelites first asked for a king, the prophet Samuel expressed in very clear terms the dangers of concentrating such power in one man (1 Sam. 8:10-22). He showed how such a figure would inevitably enrich themselves, and would trample on their freedoms. These things would happen even if the king were someone who followed God’s expectations. However, the nation of Israel rejected these warnings and wanted to trade their distinctiveness as God’s people to be “like all the nations.” The warnings about concentration of power ring true even today: all over the world, and even at home, we have seen the effects of giving too much power to a single person, and have experienced how fallible people with too much power can easily abuse it to the detriment of society at large, especially the worst off. This also offends God’s special concern for the weak and vulnerable, the ‘widow, orphan, and alien’ (Leviticus 19:34, Deuteronomy 10:18).

Third, the Bible is full of the importance of accountability. With the Old Testament kings, this crucial role was performed by the prophets, who held kings accountable to God, and expressed God’s displeasure when they led the people of Israel astray. In a sense, they were the ‘opposition’ of the time (think of how Nathan confronted King David’s sin with Bathsheba with the strong words “You are the man!” - 2 Sam. 12:7). In Acts, the Council of Jerusalem gave leadership to spreading the new message of Christianity (Acts 15), and Paul held himself accountable by taking his revelation to them to confirm that it was in keeping with what they had seen and experienced (Galatians 2). Similarly, we read of how Paul openly confronted Peter about his double standards in the treatment of Gentiles (Galatians 2:11-21). Thus, we must bear in mind that all people must be held to account, as were the great King David (a man after God’s own heart), and Peter - the first leader of the church. Whether or not the people in power are our ‘preferred’ leaders, where they fall short, we must be willing to be impartial and speak truth to power.

Human fallibility. The danger of concentrating power. The importance of accountability. The 21st amendment can be seen to engage all three, as it disempowers the all-powerful president, shifts power to the more accountable branch that is parliament, and establishes crucial institutions that promote democracy and accountability. The church has a role to play in speaking out about these aspects of constitutionalism, and in calling for their inclusion in whatever amendment is finally presented and adopted. It can also work to raise awareness among its members, and to get them to see these issues through a Christian lens, and to engage in citizen activism to support this process. But the amendment alone will not solve all our problems. As Christians, living incarnationally means we must continue to be immersed in these challenges. We must support these institutions in whatever way we can, and work to promote a new political culture that allows all citizens - especially those on the margins - to flourish and lead lives of meaning and dignity.