By Neville Ladduwahetty Courtesy The Island

February 14, 2017, 8:32 am

The primary reason for devolution is to address the national question. The national question is seen by the Tamil leadership in terms of greater political power for them while for the people it is how devolved powers are organized to “operate effectively”. The current situation in the Northern Province as reported in the media vividly demonstrates that devolution is not operating effectively for the people. The report states: “The details on the surveys carried out on alcohol consumption in the North is disheartening with Jaffna Peninsula being rated as number one region in the country as far as alcohol consumption is concerned.

The common perception is that except for Police Powers and Land Powers all other powers assigned under the 13thAmendment have already been devolved. Consequently, the demand is for the full implementation of the 13th Amendment

The facts presented below demonstrate that constitutional provisions relating to Police Powers under the 13th Amendment are such that it is not possible to devolve Police Powers due to lack of clear demarcation of responsibilities between competing agencies responsible for security.

Regarding State Land however, since a panel of 3 Judges of the Supreme Court determined that “State Land shall continue to vest in the Republic”, devolving powers over State Land to Provinces would need a Constitutional revision.

1. POLICE POWERS

Article 42 of the 1978 Constitution and the 33A of the 19th Amendment state that the President “shall be responsible to Parliament for the due exercise, performance and discharge … of any written law …relating to public security”.

Thus, while the President is responsible for “public security” as stated in articles cited above, List 1 which itemizes the powers devolved to the Provinces states that the Provincial Police would be responsible for “Public order and the exercise of police powers”. Furthermore, Appendix 1 of List 1, states that upon the declaration of an emergency, the President may “assume powers and responsibilities of the Chief Minister and the Provincial Administration in respect of public order within the Province”.

It is clear from the foregoing that while public order and police powers are exercised by the D.I.G of the Province responsible to and under the control of the Chief Minister, public security and the declaration of an emergency are exercised by the President and the Governor as the President’s representative in the Province. Furthermore, the fact that a declaration of an emergency could be based “on receipt of a report by the Governor” (Article 154L) and that “the President may give directions to the Governor …in which executive power exercisable by the Governor is to be exercised” (154J), both reflect the nexus between the President and the Governor relating to matters of public security.

Article 4(b) of the Constitution states: “the Executive powers of the People, including defence of Sri Lanka, shall be exercised by the President…”. Article 154 B of the13th Amendment states that the Governor “…shall hold office in accordance with Article 4 (b)”. Furthermore, the Provincial Councils Act No. 42 of 1987 Article 15 (2) states that “…all executive action of the Governor, whether taken on the advice of his Ministers or otherwise, shall be expressed to be taken in the name of the President”.

It is clear from all of the above that the Governor represents and acts in the interests of the President in the Province. In such a context, conflicts of interest between the Governor and the Provincial Police are bound to arise as to when public order reaches the threshold of public security. The tendency would be for the Provincial Police, supported by the Chief Minister, to claim that its resources and capabilities are sufficient to meet challenges relating to public order and for the Governor to claim that timely intervention would prevent threats from escalating to levels that would warrant declarations of emergencies. Therefore, devolution of Police powers should be avoided until these respective areas of responsibility are clearly defined.

PUBLIC SECURITY and PUBLIC ORDER

The Public Security Ordinance is the law governing Public Security and its Preamble states:

“An ordinance to provide for the enactment of emergency regulations or the adoption of other measures in the interests of the public security and the preservation of public order and for the maintenance of supplies and services essential to the life of the community’.

Although the Ordinance governs emergencies it is empowered to “adopt measures in the interests of public

security and the preservation of public order”. Therefore, since the Ordinance permits intervention to “preserve public order”, there is a clear necessity to establish guidelines as to when public order deteriorates to the point of reaching the threshold of public security.

Even in countries such as the USA and others that have divided powers relating to Law and Order between Provincial Police and National Police, Law Enforcement Agencies continue to experience difficulties in this regard. In the Sri Lankan context these complexities would be compounded by ethnic differences between Provincial Police and National Police in the Northern and Eastern Provinces. Intervention by the National Police over public security concerns would be perceived as a Sinhala Police attempting to override Tamil /Muslim Police. Measures adopted to contain threats to public order would invariably be seen upon review to be excessive, influenced more by ethnic biases than security concerns. Therefore, for the collective reasons cited above and considering the existential realities in the Sri Lankan scene it is best that Police Powers are not devolved.

However, the difficulty of establishing such clear distinctions is evident in countries where issues relating to Law and Order are divided between Provincial Police and National Police. This is often the case between Federal Agencies and the local police in the USA and vividly demonstrated in India during the terrorist attack in Bombay due to the need for the National Police to seek permission before intervening to restore public security under provisions of devolution. In the Sri Lankan context, distinctions between Provincial and National Police in the Northern and Eastern Provinces would invariably be ethnic based thus compounding existing complexities relating to jurisdictional responsibilities. Therefore, if powers relating to Law and Order are to be devolved it should be limited only to community policing. Since this would entail revisions to the Constitution it would be best not to devolve powers relating to Law and Order as currently provided in the 13th Amendment.

2. STATE LAND

Extracts of the judgment by a Supreme Court Panel of 3 Judges relating to State Land are presented below for the benefit of those who are unaware of this judgment and for others who find the judgment wrong in Law. The logic and the reasoning of the Court that “State Land shall continue to vest in the Republic” are self evident. However, the lack of due diligence on the part of those who have not accepted this judgment and the pertinent facts, has caused the credibility and the integrity of the Court to be challenged. See details below.

S.C. Appeal No. 21/13

Before: Mohan Pieris, P.C., C.J., Sripavan, J., Wanasundera, P.C., J.

Judgment written by: Sripavan, J.

Relevant extracts of the judgment are:

“It must be noted that the demarcation between the Centre and the Provinces with regard to “State Land” must be clearly identified…. As far as possible, an attempt must be made to reconcile entries in Lists I, II, III of the Constitution and the Court must avoid attributing any conflict between the powers of the Centre and the Provinces”

“On an examination of the Provincial List, it would appear at item 18 as follows:

“Land – Land that is to say, rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement, to the extent set out in Appendix II” (emphasis as in judgment)

Appendix II sets out as follows:

Land and Land Settlement

“State Land shall continue to vest in the Republic and may be disposed of in accordance with Article 33 (d) and written law governing this matter…” (Ibid)

Thus it is important to bear in mind that “land” is a Provincial Council subject only to the extent set out in Appendix II. This Appendix imposes the restriction on the land powers given to Provincial Councils. The Constitutional limitations imposed by the legislature shows that in the exercise of its legislative powers, no exclusive power is vested in the Provincial Councils with regard to the subject of “land”.

“According to 1.2 (in Appendix II) it is important to note that a Provincial Council can utilize “State Land” only upon it being made available to it by the government.

Devolution Of …

It therefore implies that a Provincial Council cannot appropriate to itself without the Government making “State Land” available to such Council. Such “State Land” can be made available by the Government only in respect of a provincial Council subject. The only power cast upon the Provincial Council is to administer, control and utilize such “State Land” in accordance with the laws passed by Parliament and the statutes made by the Provincial Council.”

“In view of foregoing analysis, and considering the true nature and character of the legislative powers given to Provincial Councils one could safely conclude that “Provincial Councils can only make statutes to administer, control and utilize State Land, if such State Land is made available to the Provincial Council by the Government for a Provincial Council subject.”

CONCLUSION

The demand is for full implementation of the 13th Amendment, meaning the devolution of Police and Land powers. The material presented above demonstrates that Police Powers should not be devolved given the particular context of Sri Lanka in which the normal overlap of functions between Provincial Police and National Police relating to public order and public security is compounded, particularly in the Northern and Eastern Provinces due to ethnic biases; a fact that could compromise national security.

As for Land powers the Supreme Court determination cited above is that “State land shall continue to vest in the Republic”. Those who are unaware of this judgment and others who have failed to acquaint themselves of the reasoning behind the conclusions reached by the Court, have indulged in comments that cast aspersions on the credibility and integrity of the Court; a tendency that has affected other judgments as well.

In the meantime, the September 2015 UNHRC Resolution Clause 16 states: “…encourages the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka”. The focus should therefore be on how to make devolution operate effectively instead of resorting to diversions by way of demanding the right of self-determination or recognition of distinct Tamil nationhood, and clamoring for more and more devolved powers as reflected in the proposed Constitutional reforms.

The primary reason for devolution is to address the national question. The national question is seen by the Tamil leadership in terms of greater political power for them while for the people it is how devolved powers are organized to “operate effectively”. The current situation in the Northern Province as reported in the media vividly demonstrates that devolution is not operating effectively for the people. The report states: “The details on the surveys carried out on alcohol consumption in the North is disheartening with Jaffna Peninsula being rated as number one region in the country as far as alcohol consumption is concerned. Drug trafficking in the North has also increased in recent years, Seizure of narcotics such as Kerala cannabis and heroin by the Police and Security Forces take place almost daily in the Northern Province” (February 6, 2017).

This is only a hint as to the situation in the Northern Province; a situation reported several times earlier. The plight of the people in the North has a direct bearing on the seriously deteriorating security situation. In such a context even contemplating devolving Police powers with political patronage is foolish. What is disturbing is that without addressing these real life situations that have a direct bearing on the people, the Tamil leadership is preoccupied with how to consolidate power to be as independent as possible from the rest of Sri Lanka.

The Tamil leadership is projecting the notion that the reason for the current state of affairs of the Tamil people is due to lack of devolved political powers. It appears that the UNHRC has seen through this charade when they resolved that the priority should be for the 13th Amendment to “operate effectively”. In the meantime, if the South is genuine about reconciliation they should canvas the International Community and jointly prevail on the Tamil leadership to focus on delivery systems that benefit the people, without pandering to their self seeking interests through Constitutional reforms. By not doing so the South has become partners in the charade. Overall, there is disingenuousness and a leadership deficit all around.