Implications of Provincial Police Departments
Posted on October 19th, 2017

By Faizer Shaheid Courtesy Ceylon Today

Law enforcement agencies are the most crucial element in maintaining law and order in any country, not just in Sri Lanka. In almost all countries, the primary force of law enforcement is the Police. Should the Police be mediocre, the nation fails and criminals will rule. So, it does matter to Sri Lanka how the Police enforce the law, and how any changes will affect the country.

Sri Lanka always had a singular and united Police Department, which operated under a common banner. This continued up until 1987 when the Prime Minister of India at the time, Rajiv Gandhi, coerced Sri Lanka into signing the Indo-Sri Lanka Pact and purported to devolve the Police Force. Following the 13th Amendment which was forced upon Sri Lankans by Gandhi, the Ninth Schedule to the Constitution segregated the powers of the country into three, namely, the Provincial List, the Reserved List and the Concurrent List.

The Provincial List contained the powers to be held by a Provincial Council and it also included legislative powers over Police and Public Order. However, despite significant debate and demands, especially by the Northern Provincial Council, such Police powers are yet to be devolved.

Under the present Constitution

Law and Order is contained in the Ninth Schedule and set out comprehensively under Appendix I. It states that public order and exercise of Police powers will not include national defence, national security or the use of any armed forces under the control of the Government of Sri Lanka.

The Inspector General of Police (IGP) is to head the Police Department, and there is to be a National Division and a Provincial Division. The IGP, together with Deputy Inspectors General (DIGs), Superintendents (SPs) and Assistant Superintendents (ASPs) are to form a part of the National Division, while the Provincial Division is said to include DIGs and all other ranks below. A Police Officer would be entitled to be promoted to the National Division. All recruitments are to be made by a National Police Commission. There must also be a Provincial Police Commission which will comprise three members who will administer the recruitment of Police personnel to the Provincial Divisions. The three persons are to be the DIG of the Province, a person nominated by the Public Service Commission of the Province and a nominee of the Chief Minister of the Province.

The DIG is appointed by the IGP after consulting the Chief Minister of the Province. If they can’t agree on a decision, the National Police Commission will take control and will make an appointment after consulting the Chief Minister. The cadre of officers are also to be fixed by the Provincial Administration, with the approval of the National Police Commission. This fixation is performed after having due consideration of the area of the Province, population and other related criteria.

The Members of the National Division and the Provincial Division must wear the same uniform and insignia of rank. Each of the Police Officers will have to follow the command of the DIG of the Province. However, maintenance of law and order will have to be performed in consultation with the Chief Minister of the Province.

This may change under two circumstances. Firstly, upon declaration of emergency, the President assumes all powers of the Chief Minister of the Province. Secondly, if there is a grave disturbance within the province, without declaring an emergency, the President can direct the Provincial Police Division with the consent of the Chief Minister. In a state of emergency, the IGP takes charge and directs the Police Force as he thinks suitable to contain the situation.

Any investigation that is to be investigated by the Provincial Police can then be taken over by the Criminal Investigation Division (CID). However, such a transfer of an investigation can only happen at the discretion of the Chief Minister. Even if the IGP feels it necessary to transfer an investigation to the CID, he must consult the Chief Minister. Under the present Constitution, the National Police Commission has only limited discretion. Offences against the State, offences relating to the security forces, offences relating to elections, offences relating to currency and stamps, offences against the President, an offence of a public officer or a judicial officer or an elected representative or an offence relating to public property would all fall under the purview of the National Police.

Further to that, the National Police will be mandated to investigate offences compromising national security, or any offence on a subject included in the Reserved List. They will also have discretion to investigate if the crime is multi-provincial or of international nature.

Despite the far-reaching implications of the Thirteenth Amendment, especially in devolving Police powers, certain parts were refuted and denied by successive Governments. Particularly considering the dangers of secession. The North has repeatedly insisted on having the Thirteenth Amendment fully implemented, yet the dangers of this nature are foreseen.

The North has often proudly displayed their separatist tendencies, and have not quite deviated from their standpoints. Even after the conclusion of the war, under the Mahinda Rajapaksa reign, the North demanded the full implementation of the Thirteenth Amendment, but it failed to materialize. Not even after the downfall of the last regime.

If the North was capable of commanding a Police Force, they could as easily rule over their own land. The moles within the Police Force will be aplenty and national security would be compromised. The ability to control law enforcement within a separate state would have been easier if the LTTE had control of the Police Force in the province. Thus has been the prevailing fear for the past thirty years since the enactment came to force.

New Constitution

The interim report of the Steering Committee of the Constitutional Assembly, which was earlier leaked, had contained intentions to have an Independent National Police Commission and a Provincial Police Commission. They did not contain a comprehensive list of powers but did specify separate Police forces for each province.

The recommendation for a separate Police force for each province does not appear in the Steering Committee report that was officially released. However, there has been increased speculation that the recommendation has not been completely withdrawn. Concerns have been raised that the current terminology in its exact form can be retained and given effect to in a subsequent Constitution.

It is expected that the powers contained under the Provincial List and the Reserved List in the Ninth Schedule of the present Constitution should be carried forth into the new Constitution, while the Concurrent List is to be split and distributed to the State and Provincial Councils.

Therefore, Appendix I of the Ninth Schedule on maintenance of law and order, which is currently inoperative, will be enforced under a new Constitution.

Granting of Police powers instils the same fears of secession as was prevailing under the Thirteenth Amendment when it was enacted. However, under the present circumstances, secession could be far easier. If Police powers are to be devolved to Provincial Councils in the manner prescribed in the Ninth Schedule of the present Constitution, any faction controlling the Provincial Council will have a certain amount of control over the Police Force. Particularly considering the amount of influence vested in the Chief Minister of a Province in relation to appointments and promotions.

A Provincial Police Force will choose people from within the same province to carry out the tasks. There is every possibility of political influence, and it is completely possible that right minded Police Officers may be side-lined while those who grant political favours to politicians will be gifted with promotions. Over a few years, the entire Provincial Police Force will turn into a State-sponsored set of goons for the Chief Minister of a Province, who will dictate terms as he pleases.

It is far worse if a political faction has separatist tendencies. Granting of Police powers to a Provincial Council that has power to make insubordinate law and powers to control State land and distribute it as it pleases will almost inevitably declare a separate State for the separatists. Especially if the Government wishes to unite the North and East as a single Province. Then it would make secession so much easier.

Conclusion

The Government plans on a model to have maximum devolution within a unitary State. However, although maximum devolution appears to be truthful, the recommendations of a new Constitution spell many foreseen dangers – A provincial Police force, insubordinate law making powers and in particular and the obvious moves to once again merge the two provinces that was once declared an independent Tamil Eelam. The new Constitution now appears to have all the ingredients necessary to cede the North and East to separatists.

(The writer is a Political Analyst and an independent researcher of laws. He holds a postgraduate degree in the field of human rights and democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom)

3 Responses to “Implications of Provincial Police Departments”

  1. Dilrook Says:

    In other words, we will have provincial militias.

    13A has devolved police powers to provinces. However, even provinces are not very keen to take them. This should not be worsened.

    If the north and east can merge, the others too must have the same right to merge.

  2. Senerath Says:

    In other words, there will be Elam in th enorth and east , Malayanadu at the centre , Muslimstan in Ampara Baticaloa, Islamistan in Puttlam, Mannar , Wilpattu, Dakune Rajjaya in Matara , Kandy kingdom and Kolamba Goyyo endless number of states.
    Angoda shall be declared the Capital of United Racist Republics of Ceylon(URRC).

    Velu ! Where are you ? Please come back as the President !

  3. SA Kumar Says:

    If the north and east can merge, the others too must have the same right to merge.- Correct
    NPC & EPC is Saiva/Muslim TE, Other 7 PCS is Bhuddist Sinhela Lanka-
    United Sinhela Lanka !!!

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