By Shivanthi Ranasinghe Courtesy Ceylon Today
Joint Opposition MP Shehan Semasinghe is concerned with the Electoral System Committee’s proceedings, in which he is a member.
“The government,” he states, “is still not clear whether executive powers should continue with the President or transfer to the Prime Minister, and President to be ceremonial. But without deciding how and who will manage the executive powers the discussions are centred on devolution and what the electoral system, what the Constitution and how the country should be.”
“I think the government has already made up its minds to go ahead with the full implementation of the 13th Amendment (13A). To the public, they are showing that an effort is made to follow a democratic process. But, they already have their framework and they are just trying to get it endorsed. Then, what’s the point of even appointing these committees and steering committees?”
Exactly a month since Semasinghe shared his concerns with this writer, US Assistant Secretary of State, Nisha Biswal visits the Eastern Province with US Assistant Secretary of State for Democracy, Human Rights and Labour, Tom Malinowski and Charge d’affaires of the US Embassy, Robert Hilton. There, at the Eastern Provincial Council, she had a closed door conference with main political party representatives.
Afterwards, Eastern Province Chief Minister, Hafeez Nazeer Ahamed revealed, “We have emphasized that the 13A fully must be implemented as soon as possible…no discussion needed. Any constitutional reforms needed, must be done without further delay.
Devolution of power
When it comes to devolution of power, there had always been delaying tactics. So, we emphasized that for genuine process to take place and to sustain the peace we have achieved, there should be no further delays. Land and police powers must be given in full. Also, the monies for these must be given directly instead of through the Central Government. Otherwise, we’ll not be able to carry out our duties.”
Retired Senior DIG Gamini Gunawardane, writes to ‘The Island’, that in a unitary Constitution, it is not possible to devolve the function of internal security and maintenance of law and order to Chief Ministers.
He explains, “Law and order and internal security in the country are a fundamental precondition necessary for all other activities. All economic, political, social and cultural activity could take place in a community only in a secure environment. For that matter, even the basics of life, food, clothing and shelter, could be enjoyed by a person only if one could have them in a secure environment.
Thus, maintenance of law and order becomes a fundamental responsibility of governance. That may be the reason why the subject of defence and internal security, is kept directly under the President and earlier, under the PM, under the previous Constitutions. It is thus a basic/core responsibility of the Head of State, in governance. Therefore, it could be construed as an ‘inalienable’ responsibility.
Responsibility and accountability
“With responsibility goes accountability. This means accountability for the preservation of law and order in the country lies directly on the government and more specifically, on the Head of State. He is primarily accountable for the whole country’s peace, law and order. Hence, is it practical or legitimately possible for him to devolve this responsibility and accountability to somebody (viz. Chief Minister) who is independent of him and over whom he has no effective or direct control?” Presidential Counsel Manohara de Silva agrees.
“Especially, looking at the Sri Lankan situation with its separatist elements,” he says, “It’s essential that there’s some kind of presidential control, so no one abuses power.
“We ought to practise good governance, which is something separatists don’t want us to do. Their first step is to create a weak Central Government and a strong provincial government. Then, it is a hop, skip and a jump to separation. The amendments to the Constitution expose this thinking clearly.”
13A divided the police as the National Division and the Provincial Division. “This,” DIG Gunawardane and PC de Silva explain “created structural problems, that subsequent amendments, chiefly 17A and 19A, seeks to exploit.”
DIG Gunawardane questions whether “The IGP, as head of the Sri Lanka Police Force – now divided as the National Division and Provincial Divisions – remain responsible for the policing of the whole country, when he had lost his Territorial Policing Arm, which is the core police activity and responsibility, to the Provincial Division?”
“National Police are concerned with offences,” explains PC de Silva, “of the nature committed against the State, currency, elections, public officers and ministers.”
“Then, through whom does the President exercise his total responsibility and accountability,” asks DIG Gunawardane, “for the other aspects of law and order, especially at territorial level?”
“Here lies the problem,” agrees PC de Silva. “According to section 11.1 of the Constitution, “The DIG of the province shall be responsible to and under the control of the Chief Minister of the Province.”
“Though the national defence and national security are with the Central Government, there is a limitation in item K of the reserved list under national security. It states that without the consent of the Provincial Council, members of a police force belonging to any province to any area outside that province, cannot exercise powers and jurisdiction.”
Though the IGP is instrumental in appointing the DIG, it is only with the concurrence of the Chief Minister. The DIG is not only accountable to, but also is under Chief Minister’s control.
“Then where is the Territorial Command of the IGP?” questions DIG Gunawardane. “What is he responsible for, beyond the appointment of the DIG, whom he cannot remove without the Chief Minister’s concurrence? How could the DIG be held accountable to the IGP who in turn, is accountable for policing the whole country?
“This situation becomes further complicated when the Chief Minister happens to be a member of a political party that is different to that of the President/Defence Minister/Internal Security.”
“If a perpetrator,” explains PC de Silva, “is under the Chief Minister’s protection of another Province, they can simply cross the border and evade the law. We had a similar experience in mid 2000, when a police unit from the National Child Protection Authority crossed over to LTTE infested area in pursuit of a paedophile. The terrorists allowed the paedophile to escape, even though the victim was a Tamil, and forcibly kept the police officers for nearly a year.
“Actually, this is a very dangerous situation. If a Provincial Council supports an attack against the State, then that ground level activities can be effectively kept from reaching the National Police.
“As the department head, the IGP can be expected to act somewhat fairly. But can we expect the same from our politicians and rest assured that the system will not be compromised?”
“The delay of more than 12 hours caused in moving the Special Forces to Mumbai to deal with the deadly terrorist attack on the major tourist hotel there,” says DIG Gunawardane, shows how dysfunctional the Indian police was because of the command chain breakdown. “How many unnecessary deaths were caused as a result of this delay? Then, how in the ’80s, the IGP of Tamil Nadu behaved under Chief Minister M.G. Ramachandran whenever his police arrested Sri Lankan terrorists operating there – he was virtually a lump of clay in the Chief Minister’s hands!”
On the other hand, he argues, “We were able to have the World Cup matches in 1996, even in the midst of the battle with the LTTE terrorists going on in full cry. Similarly, Sri Lanka Police has been able to develop a countrywide rapid police response system where any citizen anywhere in the country could activate the police through a mere telephone call to 119.
“This is because of the Police Ordinance provides by section 56, for any police officer to exercise his police powers in any part of the country and intervene trans-provincial or otherwise, without the permission of anyone – leave alone Chief Minister or even the PM.”
“The 13A was bad enough,” exclaims PC de Silva, “that divided the Police and placed the DIG directly under the Chief Minister. But, when the 17A was introduced, the composition of the National Police Commission was amended, but not the composition of the Provincial Police Commission. Surely, that couldn’t have been an oversight.
“In the 13A, the National Police Commission was composed of, the IGP, a person nominated by the Public Service Commission in consultation with the President and a nominee of the Chief Justice.
The Provincial Police Commission is composed of 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.
“Under the 1978 Constitution, the President appoints the IGP. So, he’s under the President’s total control. The Public Service Commission is also appointed by the President.
So, the nominee would also be under the President’s control. The Chief Justice’s nominee cannot be said to be under the President’s control. So, in the National Police Commission, two members were directly or indirectly under the control of the President.
“On the other hand, except for the nominee of the Public Service Commission, in the Provincial Police Commission, the other two members are under the Chief Minister’s control.
“In the 17A, the National Police Commission composition was changed to seven members appointed by the President on the recommendation of the Constitutional Council (CC), who may consult the Public Service Commission in making its recommendations. The CC’s controlling vote is with the PM and the Opposition Leader, who at most represent only two districts as opposed to the President.
The President, on the CC’s recommendation shall appoint one member as the Chairman.
“This goes to prove that the 17A seeks to weaken the Centre whilst strengthening the Provinces.
“In the 13A, there is another curious clause. Section 10.1 states, “Member of the National Division shall ordinarily be in plain clothes provided that they may wear uniforms when performing any duties in respect of the maintenance or restoration of public order as set out in paragraph 12:2, 12:3 and 12:4.
“To be in plain clothes when off duty is one thing, so let’s see what 13A omits – 12:1, which states the Provincial Division shall be responsible for the preservation of public order and prevention, detection and investigations of all offences within the Province, where as the National Division responsibilities are separate.
“Now Tamil politicians claim that they don’t have sufficient security under what they call a ‘Sinhala government’. Having said that, the Provincial Council is empowered for the entire Provincial Division, which is to be under the Chief Minister and the National Police have no powers to protect a regional minority of that Province.
“We’re trying to copy a system,” points out Semasinghe, “from a country whose smallest state is larger than Sri Lanka.
“If police powers are given, then for my security to come to Anuradhapura from Colombo, I’ll have to take permission from three Provincial Councils – from Western, North Western and North Central Provincial Councils.
At each, I’ll have to surrender my weapon, take permission from all these three to carry my weapon and only then take it back.”