By C. A. Chandraprema Courtesy The Island

August 15, 2018, 10:40 pm

Under the provisions of Appendix I of the 9th Schedule, which was introduced by the 13th Amendment to the Constitution, police and public security are a subject devolved to the provincial councils. However, for more than three decades, no government has implemented these provisions due to the fear that the country would be rendered ungovernable. Despite this history of non-implementation, the proposed draft constitution also has provisions relating to the devolution of police powers which are, if anything, even worse than the provisions brought in by the 13th Amendment. Under the proposed draft constitution, the Sri Lanka Police are to be divided into the Sri Lanka National Police and the Sri Lanka Provincial Police. The type and quantity of firearms, ammunition and armaments for the Provincial Police Services will be determined by the National Police Commission after consulting the Inspector General of Police and the Provincial Police Commissions as to the requirements of the respective Provincial Police Services.

The wording of this provision indicates that it will be the provincial police commission that will have the final say as to what they require. Though it will be the Central Government that procures and issues such armaments, it will not be able to prevent the provincial police forces from getting what they want. Under the 13th Amendment as well, the type and quantity of fire-arms for the Provincial Divisions were to be determined by the National Police Commission after consultation with the Provincial Police Commission. However the 13th Amendment was somewhat better than the present constitutional proposals in that it had the provision that “uniform standards and principles shall be applied for all Provincial Divisions”. The latter provision is absent in the present proposals and there need not be any uniformity in the armaments used by the provincial police forces. In a country that had a terrorist army trying to take over the North and East, no provincial police force can be allowed to bear arms that other provincial police forces do not have.

As in the case of the 13th Amendment, in the proposed draft constitution, too, the national police force is to have jurisdiction only over a limited number of specified offences, Viz.:

1. Offences against the Republic, including waging war against the state, collecting men, arms and ammunition for same, helping prisoners escape, offences relating to the armed forces such as the abetment of mutiny, assault of a superior officer, abetting desertion, harbouring deserters, impersonation of armed forces personnel, and offences prejudicial to national security, territorial integrity and sovereignty; Terrorism and related offences.

2. Any offence committed against the President, Prime Minister, and Minister or Member of Parliament, any judicial officer; any officer of the Attorney General’s Department; a member of the Constitutional Council; a member of any National Commission etc.

3. Offences relating to Elections.

4. Offence against a diplomatic or consular representative of a foreign state, or a visiting foreign Head of State or Head of Government; Any offence against an officer of an inter-governmental organization.

5. Offences relating to coins, currency and government stamps

6. Offences relating to property belonging to the Republic or a public corporation, or company established the whole of part of the capital whereof has been provided by the Republic, above a particular value.

7. Any offence committed wholly or partly within the Capital Territory and the Colombo Metropolitan Area. (This is a new feature which was not in the 13A.)

The offences coming under the jurisdiction of the national police are those that seldom occur. Hence the provincial police have effective charge of all day to day police work pertaining to crime, fraud, narcotics, traffic, public order etc. This was the main weakness in the 13th Amendment which has prevented police powers from being devolved for the past 30 years and we see the same issue in the proposed draft constitution as well. Under the provisions of the proposed draft constitution, the National Police Commission is to be responsible for the recruitment, promotion, transfer, disciplinary control and dismissal of all officers of the National Police Service and officers down to the rank of ASP in the provincial police forces. This appears to be slight improvement over the 13th Amendment where the provincial police division was to have such control over all officers in the province other than the DIG of the provincial police.

Some useful provisions in the 13th Amendment have been dropped in the proposed draft constitution. One such provision is that the cadre of all ranks of the provincial police divisions could be fixed only with the approval of the National Police Commission, based on criteria relating to the area and population of the province. Another provision that has been dropped is that the National Police Commission will set standards for the recruitment and promotion of Police Officers of all Divisions and such standards shall be uniform for all Provincial Divisions. Furthermore, under the 13th Amendment, the central government of Sri Lanka was to be responsible for the training of all recruits of the Sri Lanka police force – which provision too has been dropped in the proposed draft constitution.

Provincial police force

Under the proposed draft Constitution, there will be a Provincial Police Commission in every Province. The Constitutional Council is to be empowered to make recommendations to appoint members of the Provincial Police Commissions after considering nominations received from the public, as well as the Chief Minister and Leader of the Opposition of the respective Provincial Council. Under the 13th Amendment, the Provincial Police Commission was to be composed of three members – the DIG of the Province, a person nominated by the Public Service Commission in consultation with the President, and a nominee of the Chief Minister of the Province. Thus we see that the arrangement under the 13th Amendment gave the centre a better hold over the Provincial Police Commissions than the provisions of the proposed draft constitution.

The Provincial Police Commission shall be responsible for the recruitment, promotion, transfer, disciplinary control and dismissal of officers of the Provincial Police below the rank of Assistant Superintendent. In respect of officers of the rank of ASP and above, within the Provincial Police Service, the Provincial Police Commission may exercise powers of transfer within the Province, and of disciplinary control (not extending to dismissal). One area in which the proposed draft constitution is an improvement over the 13th Amendment is probably the appointment of the provincial head of police. Under the 13th Amendment, the IGP was to appoint the provincial DIG with the concurrence of the Chief Minister and if they are unable to agree, the matter was to be referred to the National Police Commission which once again would have to consult the Chief Minister before making the appointment. Under the proposed draft constitution, the Provincial Police is be headed by a Senior DIG rank Provincial Police Commissioner appointed by the National Police Commission on a recommendation made by the Chief Minister from a list provided by the National Police Commission. If the Commission and Chief Minister are unable to agree on a candidate, the National Police Commission will refer its recommendation to the Constitutional Council and the latter body will consult the IGP, Chief Minister and National Police Commission and make its choice.

Thus, we see that the provisions in the proposed draft constitution have mitigated somewhat the inordinate power that the Chief Minister was accorded by the 13th Amendment in the matter of appointing the provincial head of police. As in the case of the 13th Amendment, under the proposed draft constitution, too, the Provincial Police will have jurisdiction over all offences other than those coming under the National Police and any offence contained in a Statute enacted by the respective Provincial Council. A new feature in the proposed draft constitution is that the provincial police will be able to investigate into any and all offences which the National Police is empowered to investigate, unless and until the National Police commences an investigation into such matter. Where the National Police so commences an investigation, the Provincial Police shall forthwith hand over such investigation to the National Police.

There are some important areas covered by the 13th Amendment and the proposed draft constitution is silent thereon. For example, there is a provision in the 13th Amendment which states that there shall be one uniformed police force in each Province, comprising the members of the Provincial Division and the officers seconded thereto from the national police. Members of the National Division shall ordinarily be in plain clothes provided that they may wear uniforms when performing duties in respect of the maintenance or restoration of public order. This is an important matter relating to the manner in which the police was supposed to function but the proposed draft constitution is silent on the matter.

Public Security

Under the proposed draft constitution, the President may declare a state of emergency on the advice of the Prime Minister if there is danger to public security or during natural disasters and epidemics and the like. A Governor of a Province, on the advice of the Chief Minister may advise the Prime Minister that a situation warranting a state of emergency has arisen within his Province. Where the Emergency Regulations vest special powers in the Police, Provincial Police officers shall, for the purpose of the exercise of such powers be under the control of the National Police. The President may, in consultation with the Prime Minister, where a situation has arisen, in which a provincial administration, is promoting armed rebellion or insurrection or engaging in an intentional violation of the Constitution which constitutes a clear and present danger to the territorial integrity and sovereignty of the Republic, by proclamation assume all or any functions of the Governor, the Chief Minister, the Board of Ministers or anybody or authority in the Province; and if necessary, even dissolve the Provincial Council.

On the face of it, such provisions may seem more than adequate to ensure public security but there are serious caveats to these provisions. All such proclamations under the public security laws will be subject not only to Parliamentary approval but also to judicial review. A Declaration of a State of Emergency, will not be applicable for more than one month at a time. The President will summon Parliament mandatorily within four days upon a state of emergency being declared, or a proclamation being issued taking over the functions of a provincial council. If Parliament does not approve the declaration of emergency by simple majority, the declaration of emergency will lapse. The State of Emergency, Proclamation or any Emergency Regulations promulgated shall be reviewed by parliament monthly. There shall be a standing committee of parliament to review such declarations of emergency and which shall periodically review and report to parliament. A state of emergency may continue in excess of three months or a period of more than 90 days within a 180 day period only if it is approved by two-thirds of the members of Parliament.

This requirement of a two-thirds majority to continue a state of emergency beyond three months is a recipe for disaster. One can only imagine what would have happened if such provisions had been in place during the armed insurrections and rebellions that this country had to face in the past. Furthermore, to subject a declaration of emergency to judicial review is a suicidal course of action. A declaration of emergency is an executive act taken in extreme situations to ward off a threat. If interested parties go to court over the declaration of the emergency, the first thing the court will do will be to suspend the order until the case is heard. Even if there is a provision saying that the case has to be heard while the declaration remains in effect, there is always the danger that the judiciary may order the lifting of the emergency. The judiciary is not competent to judge whether a particular situation warrants a declaration of emergency. That is not the function of the judiciary. Besides the executive will have to reveal even sensitive information to convince the court to allow the emergency to continue. How conducive will such a situation be to national security? These caveats placed on public security laws will naturally give wings to the oft-heard charge that the whole purpose of the proposed draft constitution is to facilitate separatism in this country.

Land powers and public finance New draft constitution 

Under the provisions that were introduced to our present Constitution by the 13th Amendment, rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement, was said to be a subject devolved to the provinces. However, according to Appendix II of the 9th Schedule of the Constitution, State land shall continue to be vested in the Republic and may be disposed of in accordance with the powers vested in the President to dispose of land under the public seal. State land required for the purposes of the government in a Province, in respect of a national or concurrent subject may be utilised by the government after consulting the relevant Provincial Council. The government shall make available to every Provincial Council State land within the Province required by such Council for a Provincial Council subject. The alienation or disposition of the state land within a province to any citizen or to any organisation shall be by the President, on the advice of the relevant Provincial Council, in accordance with the laws governing the matter. There was a degree of ambiguity in the wording of these provisions.

The definitive Supreme Court interpretation in relation to land powers in our present Constitution is contained in the judgment of the 2013 case of Solaimuttu Rasu vs State Plantations Corporation where a three-member Bench held that under the provisions of the 13th Amendment, State land comes under the central government and not the provincial councils. The argument was that the unequivocal opener of Appendix II of the Ninth Schedule of the Constitution -“State Land shall continue to vest in the Republic and may be disposed of, in accordance with Article 33 (d) and written laws governing the matter.” points to the fact that State Land belongs to the Republic and not to the Provinces because Article 33(d) of the constitution (before the 19th Amendment) refers to the president’s exclusive power to dispose of land belonging to the Republic. Furthermore, the list of powers of the government in the Ninth Schedule of the constitution clearly states that “State Lands and Foreshore” comes under the government.

The provincial councils list of powers in the Ninth Schedule of the Constitution specifies that PCs will only have “rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement”. Furthermore, the government is to make available to every Provincial Council State Land within the Province required for a Provincial Council subject. Only after such land is provided to the provincial council by the government, does the Provincial Council have the power to ‘administer, control and utilize’ such State Land. This implies that a Provincial Council cannot appropriate state land without the government making that land available to it. The 2013 Supreme Court judgment in Solaimuttu Rasu vs State Plantations Corporation is thus the Sri Lankan equivalent of the Indian Supreme Court judgment in the 1962 case of State of West Bengal vs Union of India, which upheld the powers of the Indian Central government over State land in the whole of India.

Provinces to have complete power over land

What the proposed draft constitution aims to do with regard to powers over land is nothing less than the complete upending of the situation that prevails at present with regard to land powers. If this constitution is implemented, the provincial councils in Sri Lanka will have much greater powers over land than the States in India. According to the proposed changes, all State land within the Province shall be at the disposal of the Provincial Administration for the purposes set out in the Provincial List. The Provincial Administration will exercise rights in or over such land, including land tenure, transfer and alienation of land, land use, land settlement and land improvement. Where the government requires State land in a Province for the purpose of a subject on the National List, they may require the Provincial Administration to make that land available to the government and the Provincial Administration shall comply with such requirement.

Where a Provincial Council does not comply with such requirement, the President shall refer the matter for arbitration to a tribunal consisting of a member appointed by the Prime Minister, a member appointed by the Chief Minister and a Chairman nominated by the two appointed members. If there is no agreement, the Chairman will be appointed by the constitutional council. The decision of such a tribunal may be challenged in the Constitutional Court. Thus the final power over land is with the province and there are various mechanisms including the Constitutional Court to enforce that provision. Even when it comes to land required for security related matters, there is no diminution in the powers of the provinces. Where following consultations between the central government and the Provincial Administration, the President on the advice of the Prime Minister is satisfied that State land in a Province is needed for National Security or Defence, the President may, on the advice of the of the Prime Minister, direct the Provincial Administration to make available that land to the Central Government. A Provincial Council, aggrieved by such decision may appeal to the Constitutional Court.

Under the provisions of the 13th Amendment, the allotment of lands in major irrigation schemes was to be on the basis of the national ethnic ratio. In the distribution according to such ratios, priority will be given to persons who are displaced by the project, landless of the District in which the project is situated and thereafter the landless of the Province. Under the proposed draft constitution, this is to be changed so that priority in land settlement schemes after the commencement of the Constitution shall be accorded to landless persons in the following order – (a) firstly, to persons of any sub-division, recognized by law, of the relevant District, (b) secondly, to persons of the relevant District, (c) thirdly, and to persons of the relevant Province, and (d) fourthly, to other persons.

Our present constitution has provision for a National Land Commission which will be responsible for the formulation of national policy with regard to the use of State land. The Commission is to include representatives of all Provincial Councils in the Island. The National policy on land use will be based on technical aspects having regard to soil, climate, rainfall, soil erosion, forest cover, environmental factors, economic viability etc. In the exercise of the powers devolved on them, the Provincial Councils will have due regard to the national policy formulated by the National Land Commission. Thus, under the present constitution, land use policy is firmly in the hands of the government and the provincial councils are mandatorily required to abide by the directives of the National Land Commission. What is envisaged in terms of the National land Commission under the proposed draft constitution, is very different.

The proposed draft constitution envisages the setting up of a National Land Commission with equal representation for the government and the Provinces. This body is to formulate national land use policy, taking into account standards relating to the appropriate amount of forest cover, exploitation of natural resources, the quality of the environment and other relevant matters. In formulating such policy the National Land Commission shall afford ‘a margin of appreciation’ within which the Central Government or Provincial Administrations may pursue their respective policies. Where, after affording the Central Government or the Provincial Administration an opportunity to be heard, the Commission forms the opinion that the Central Government or a Provincial Administration is acting in deliberate non-compliance with guidelines or directions made by the Commission, the Commission may refer the matter to the Constitutional Court.

These provisions indicate quite clearly that the authority that the present Land Commission has, is to be whittled down under the proposed draft constitution. The Constitutional Court may, where it is of the view that it is necessary to do so, make permanent or interim orders directing the Central Government or the Provincial Administration (or specified officers / authorities thereof) to comply with such guidelines or directions or such parts thereof, as the Constitutional Court may direct. Where the Provincial Administration acts in contravention of a permanent or interim order made by the Constitutional Court, the Constitutional Court may make order that the Central Government shall assume control over such extent of specified land as necessary to ensure compliance, for a specified period. What these provisions are meant to look like safeguards are actually meant to allow the provinces to dance circles around the central government in terms of land use policy. Ecologically, how feasible is it for a country like Sri Lanka to NOT have a centrally planned and administered land policy?

Public Finance

Under the provisions of our present Constitution, Parliament has unequivocal control over public finance. Article 148 of the Constitution clearly states that “No tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by Parliament or of any existing law.” As has been made clear in previous instalments of this series, aim of the proposed draft constitution is to have a weak centre and very powerful quasi-independent provinces and the provisions relating to public finance are also to be changed appropriately. For example, the present Article 148 of the Constitution is to be amended to read as follows: “No tax, rate, or any other levy shall be imposed by Parliament, Provincial Councils, Local Authorities or by any public authority, except by or under the authority of an Act or Statute passed in accordance with the Constitution.” It will be noted that authority over public finance is thus to be shared between the centre and the provinces.

Under the present Constitution, there is a Consolidated Fund to which is paid the produce of all taxes, imposts, rates and duties and all other revenues and receipts of the Republic not allocated to specific purposes. Withdrawals from the Consolidated Fund will be by the Minister of Finance on the basis of a resolution of Parliament allocating the money for that purpose. Under the proposed draft constitution, the exclusive powers of Parliament over public finance is to be diluted by enabling both Parliament and the Provincial Councils to withdraw money from the Consolidated Fund and to impose taxes. The PCs are also to have their equivalent of the Consolidated Fund in the form of ‘provincial funds’ to which revenues raised and all fees accruing to the Provincial Council, all loans raised by such Council and all other monies received by such Council will be credited. Furthermore, Provincial Councils are also to have Contingency Funds on the same model as the Contingency Fund of the central government.

 

According to Article 154R of the present Constitution the Finance Commission consists of the Governor of the Central Bank, the Secretary to the Treasury and three other members appointed by the President on the recommendation of the Constitutional Council, to represent the three major communities. The task of the Finance Commission is to make recommendations on allocations to meet the needs of the provinces. In making such recommendations, the Commission is to take into account – (a) the population of each Province (b) the per capita income of each Province; (c) the need to progressively reduce social and economic disparities ; and (d) the need to progressively reduce the difference in the per capita incomes of the Provinces. Under the proposed Constitution, the Finance Commission is to be expanded and consist of the Governor of the Central Bank of Sri Lanka, the Secretary to the Treasury, five distinguished financial experts, appointed by the President on the recommendation of the Constitutional Council, three members to represent the Provinces, and one member to represent local government institutions.

The task of the Commission will be to make recommendations to the government on the allocation of finances to the National, Provincial and Local spheres of government and allocation of funds to individual Provinces and Local Authority areas, taking into account factors such as the national interest, any provision that must be made in respect of the national debt, the needs and interests of the national government, the need to ensure that the provinces and local authorities are able to provide basic services, the fiscal capacity of the provinces and local authorities, the developmental needs of the provinces and local authority areas, economic disparities within and among the provinces, etc. The most important thing to note is that under the present constitution, the Finance Commission has only a consultative role and it can only make recommendations.

But under the proposed draft constitution, there is a provision which reads as follows: “Parliament shall take due cognizance of the recommendations of the Finance Commission in making decisions in the exercise of its powers and duties relating to public finance.” What this means is that the Finance Commission is to become a decision making body which can actually dictate terms to Parliament. The Provincial Councils will make allocations to the local authorities in accordance with the guidelines and criteria or directives specified by ‘the Finance Commission, or Parliament, as the case may be’. In addition to this powerful Finance Commission, under the proposed new constitution, there is to be a ‘Forum of Finance Ministers’ composed of provincial finance ministers and chaired by the Finance Minister in the central government which will meet bi-annually for consultation between the national, provincial and local spheres of government in matters relating to finance.

A lesson in how not to draft a constitution New draft constitution –

We traced the contours of the government’s new draft constitution in seven parts over the past several weeks. What becomes obvious, at first sight, with regard to the present government’s attempts at constitution making, is that it has been trying to do too much at the same time. It has sought to abolish the executive presidency, change the system of elections, create a federal state out of a unitary state by giving the provinces more powers and whittling down the powers of the centre, devolve police and land powers, completely change the structure of the judiciary and place the provinces and the centre on an equal footing with regard to public finance. Even J. R.Jayewardene with a five-sixth majority in Parliament would not have attempted as radical change as that. The only new feature that Jayewardene introduced was the executive presidency which was a very radical change, no doubt, but that was done while retaining elements of the old parliamentary system of governance as well. Even the introduction of the presidential form of government was done piecemeal with the institution being introduced as an amendment to the 1972 Constitution before it was incorporated in the 1978 Constitution.

But what we have now in the present constitution making process is an attempt to erase Sri Lanka as we know it and to design it anew, which is overambitious. If this government had concentrated on the two main political pledges they gave the public at the 2015 presidential election––abolishing the executive presidency and reforming the electoral system––during its election campaign, it would have made a lot of political capital, which may have facilitated further reform.

During the early years of this government, to have captured power by hoodwinking the public and then reneging on their main promise, may have seemed a mighty clever thing. But by such subterfuge this government frittered away its political capital and that has affected the constitutional reform process as well.

While the constitution making process was hampered by yahapalana perfidy from the beginning, another factor which is hampering the process is the scarcely disguised bias in the whole exercise towards the northern Tamil lobby. For example, even this latest draft of the constitutional proposals, incorporates one of the prime demands of the that lobby––a provision for the merging of the Northern and Eastern provinces after holding referendums in the relevant provinces. This despite the stiff resistance that this proposal has encountered from the Muslim and Sinhala population in the North and East for the past thirty or more years. We see in the drafters of this new constitution have gone out of their way to uphold the articles of faith of the Northern Tamil lobby, which is not going to endear the process to the other communities in this country. Witness the manner in which Section 190 the draft constitution has brought in an unelaborated provision whereby two or more provincial councils may ‘cooperate’ with one another in ‘implementing their executive functions’. Though it has not been explained how exactly this ‘cooperation in implementing executive functions’ is to take place in practice, this can be recognized as a hardly disguised attempt to provide a way for the merger of the North and East through the back door if the referendum goes against the formal merger of the provinces.

Indeed, one could say that other than the provisions to abolish the executive presidency and to reform the system of elections, all other provisions are aimed at placating just the Northern Tamil lobby. There is the change, proposed in the public security laws, making it near impossible to continue a state of emergency beyond three months or a period of 90 days within a period of 180 days unless Parliament votes in favour of it with a two-thirds majority. This combined with other provisions in the draft constitution which envisages the creation of provincial, ethnicity-based police forces bearing weapons of their choice, would give an indication of where things are heading. On top of all these is the provision which makes even a declaration of emergency subject to judicial review which would make it almost impossible for a government to handle any kind of disturbance in the country.

One cannot but observe that there is an element of revenge taking inherent in this whole process of drafting a new constitution. On the one hand this government which was elected to power through a majority provided by the North and East, has been imprisoning members of the armed forces on flimsy pretexts. Then through the constitution making process we see an attempt to dismantle the entire legal framework which enabled the armed forces to defeat the separatist terrorist group in the North.

Most people would naturally come to the conclusion that these processes are interlinked. As we pointed out in our previous article, the proposed draft constitution seeks to make the provincial Council the key arbiter in the use and disposal of state owned land while, at the same time, creating a parity between the central government and the provinces when it comes to public finance. What we have in the form of this draft constitution is a complete change in Sri Lanka’s status as a nation state.

Even the colonial powers never tried to make as radical a change of this nature, in the structure of the state and the manner Sri Lanka was governed. Such unrealistic and impractical ambitions are the result of the gung-ho attitude that prevailed within the yahapalana camp after the unexpected victory at the 2015 presidential elections. The victorious coalition divided up the government and the opposition among themselves with the SLFP and the UNP taking over the government and the TNA and the JVP taking over the opposition. Both sides working together stuffed the 10 member Constitutional Council with their supporters and these cronies in turn filled all high positions and independent commissions with yahapalana supporters. The present government has committed outrages against democracy, hitherto unseen in this country, and are probably unprecedented in the democratic world. The proposed draft constitution is a product of this mindset – that they can do just about anything and get away with it.

A Constitutional Assembly has been constituted but there is no transparency in the process that has been going on. There is an attempt by a cabal within the constitution making process to nudge things in the direction it desires. Secret drafts are being circulated among a limited group while the wider public is kept in the dark. What we have seen here is a prime example of how NOT to make a constitution.

(Concluded)