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After me, no deluge! President sitting pretty after passing budget

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by Rajan Philips

Ranil Wickremesinghe is the third President to sequester the finance portfolio instead of assigning it as an exclusive portfolio to a cabinet minister, but he is the first, perhaps after Ronnie de Mel, to prepare and author most or the entirety of the budget speech. He is also the first leader of a political party with only a single listed MP in parliament, to not only present a budget in parliament but also have it passed quite comfortably. In passing the Second Reading of the Budget with 121 MPs voting for and 37 against, parliament reverted to nearly the same division (134-82) it showed when it elected Ranil Wickremesinghe as President on July 20. The President now seems to be well positioned to assemble different majorities in parliament for different purposes.

The majorities for his election and now his budget are based mainly on the support of SLPP MPs acting in solidarity with the Rajapaksa family. The same pattern was seen for the vote on the Emergency Resolution (120-63) and the passage of the Petroleum Products Amendment Bill (77-17), two votes which were marked by disappointingly large absentees (41 and 134) – mostly from the Opposition.

On the other hand, there was rousing support for the passage of the 21st Amendment – 179 for, only one against, and the rest being overseas or no shows. The division on 21A involved the punishing isolation of the Rajapaksas, especially Basil Rajapaksa whose apparent efforts to call the shots from the US were spurned by his own MPs including some family members. Basil returned on Sunday (Nov. 20th) and may have had a hand in securing the majority on Monday.

So, the President with only one MP belonging to his Party (UNP) in parliament, would appear to have gotten into a groove in creating different majority vote blocks for different legislative initiatives. That is the way a legislature is supposed to work in a presidential system – through principled compromises, as well as trading in favours, between legislators. It has taken 45 years for this to come to pass, but more by circumstances and opportunism than by conviction or persuasion. How long can the President keep this going?

After me, no deluge

Put another way, the President would seem to have been able to stabilize himself politically far more than he and his government have been able to stabilize the country’s economy. He is keeping his detractors guessing on the timing of the local government elections, and more so about dissolving parliament and calling for a general election soon after March next year (2023). He also seems to be testing the waters through inspired rumours that a presidential election (which could not be before November 16, 2023) might be held before the next parliamentary election (which could be as early as April 2023, or as late as August or September 2025). He could even call for the two elections to be held concurrently any time after November 16, 2023.

That would throw the cat among the opposition pigeons, and Mr. Wickremesinghe will have more than a fair chance of becoming an elected President, finally fulfilling his 45 year old ambition. There will be the small rub about abolishing the presidency, but Mr. Wickremesinghe can stand tall and handsomely promise that as elected President he would preside over the amendment to the constitution to end the system of having an elected President. “After me, no deluge,” he could deadpan. The matter itself could be put to the people as a referendum question as they go to vote to elect simultaneously a new President and a new Parliament.

All of this seems too fanciful to be likely, but not at all impossible. As well, November 2023 is an eternity in politics and anything can happen between now and then. For now, the President seems to be sitting on a deck of opportunities, holding all the cards he needs to finesse MPs into voting in ways he wants them to vote. There is one political caveat to all this, and that is the President would be well advised not to use the goodwill circumstances he is enjoying now to try to resurrect the UNP as an electoral force. And worse would be to strike an electoral alliance with the Rajapaksas in a local government or parliamentary elections. A presidential election would be a different battlefield where all manner of alliances has become common.

The President’s ambidexterity is on full display. He is coming on both sides of the law and order fence and can have enough MPs to support any of his opposing positions. He has declared in parliament during the current Committee stage debate on the budget, that “he would not allow another Aragalaya and that he would use security forces to prevent such a move.” He has been quoted as saying – “I will declare even emergency and call in security forces to thwart any such move.” He seems to be confident that he can rely on Basil Rajapaksa to get a majority in parliament for cracking down on protesters.

At the same time, he is executively dissociating himself from the actions of the Defence Ministry officials under the Prevention of Terrorism Act (PTA). The President is reported to have refused to sign on new Detention Orders under the Prevention of Terrorism Act (PTA), even though he did not stop previous orders being signed by the Defence Secretary, a retired Army Major General. The PTA was adopted in 1979 as a “temporary” measure has survived through many government changes and promises to repeal it. As Prime Minister in 2015, now President Wickremesinghe was committed to repealing it but nothing happened.

The official position now is that the government has placed a “de facto moratorium on arrests being made under the PTA.” With convenient exceptions for deeming protesters terrorists and arresting them under PTA. Aragalaya protesters have been so arrested and the President seems to be on both sides of the fence. He is running with the Human Rights hare and hunting with the National security hound. Under pressure from both local rights groups and international agencies, the government is reportedly drafting a new counter-terrorism law to replace the controversial Prevention of Terrorism Act (PTA). And the President might be able to assemble a different majority in parliament, similar to the one that passed the 21st Amendment. He could also get the Foreign Minister to drop the IMF scare in parliament as he did for 21A – that there would be no IMF help if PTA is either not repealed or drastically defanged.

More than dealing with PTA, the President is looking for a bigger fish to fry, one that was also left unaccomplished during the yahapalana government. That is the ever elusive project of national reconciliation. He seems to have all the Sri Lankan Tamil, Muslim and Upcountry Tamil parties on board for this initiative, of course with varying shades of interest, commitment and engagement. The President has proposed yet another All Party Conference and managed to prise out a public affirmation from Sajith Premadasa that he and the Samagi Jana Balawegaya (SJB) will not only participate in the All Party Conference (APC), but “will (also) lead from the front and finalise a solution to the ethnic problem by the time Sri Lanka celebrates its 75th Independence Day” through a system of power devolution based on the 13th Amendment.

If the President is able to maintain the current trend of voting permutations in parliament, he should have no difficulty in getting a parliamentary majority for a legislative approval if one is required for whatever reconciliation package that the President might be having in mind. It is too early to anticipate how the new reconciliation initiative will unfold, except to say that the dubious devise of an All Party Conference is always fraught with uncertainties, if not unwelcome developments. The first of them after July 1983 was convened in January 1984, but as it turned out it was not for the purpose of finding a solution but for avoiding one. Hopefully, the intentions behind the newest initiative now are not devious as they were then.

It’s the Economy

Any or all of the above political possibilities happening or not happening will of course depend on how the country’s economy turns and, along with it, how people’s economic circumstances change. The fundamentals of the economy are not going to improve any time soon. The government’s, really the President’s, challenge is to keep them from worsening and to keep the people’s living conditions from further deteriorating. All bets are off if essential supplies are not maintained, prices are not contained or subsidized, and scarcities and lineups return. Such deterioration will take away the President’s options and flexibility that I am speculating here.

Far from having the luxury of not holding parliamentary elections before November 2023, he could be forced to hold them as soon as possible after March 2023. If frustrated and angered, the people will find ways of forcing his hand to dissolve parliament without giving him the excuse to draw out the army or declare emergency. On the other hand, if the economy starts ticking as he seems convinced it would as a result of his new budget, he will have the luxury of playing his cards the way he wants. But it will likely succeed only if he aligns his game with advancing the public good and not for restoring the electoral fortunes of the UNP.

As a ‘crisis’ President, as he has been calling himself, the President could have taken a different route and facilitated a ‘consociational budget’ by nominating/appointing an outside technical expert as Finance Minister to build parliamentary consensus on details while providing overarching leadership as President. Such an exercise would have won broad political support at home and significant credibility abroad. But that has never been his wont. So, the President made his own budget and now has got his own majority in parliament.

That said, the President’s budget is a politically clever piece of work in the most trying circumstances. It straddles, rather than balance, the restructuring demands of the IMF and the livelihood requisites of Sri Lanka’s growing poor. It even placates the army by downsizing through retirement. The budget is also clever in totally avoiding any mention of the Rajapaksas and their contributions to Sri Lanka’s debt and economic distress. He could not have blamed them in the budget and expected them to vote for it at the same time.

Instead, the President picked on SWRD Bandaranaike using a quote from Singapore’s Lee Kuan Yew that has been a longstanding table talk topic among Colombo middle classes. He even adds a measure of self-deprecation by alluding to the shortcomings, if not failures, of the 1977 economic changes under JR Jayewardene and calling for a new direction defined by the so called Social Market Economy. The President made a point in repeatedly emphasizing that it was time for governments in Sri Lanka to move away from making ‘popular’ decisions to making ‘right’ decisions. To make a different point, it is time political leaders moved away from blaming the people for their so called popular decisions.

The President deftly sidestepped the issue to say whether the decision of the Gota-regime to do away with taxes was meant to be popular among the people who are now being called upon to pay the price for it with interest. Or was the decision on organic fertilizer meant to be politically unpopular and economically right? Welfare economists are familiar with the false dichotomy between equity and efficiency in economics. Equity with efficiency is amply possible, and efficiency without equity is socially unsustainable. Ranilonomics appears to be expressing the same falsehood using common vocabulary.

The budget is also strikingly optimistic both in regard to economic expectations and in its assumptions about Sri Lanka’s factor endowments – of land, labour and capital. And there are significant omissions of details on the pressing issues of the day: timelines for, and even the likelihood of, securing IMF assistance and debt restructuring; stock and price status of food supplies and backup plans to deal with current and future scarcities; the state of affairs in the petroleum sector which is becoming a costly circus under a runaway cabinet minister; and lastly, no mention of what he plans to do deal with corruption, let alone eliminate it.

A not so curious omission is the deafening silence on the utilization of Port City in the new economic order that the President is assiduously promoting. It is no longer curious because after nearly two decades of political gestation, environmental fudging and oceanic landfilling, the vaunted Port City is virtually dead on arrival. Then there is this singular gem in the budget to feed one’s curiosity – the President’s proposal “to establish an Institution to undertake and facilitate research on the history of Sri Lanka. Accordingly, I propose to allocate Rs. 50 million for this purpose.” Go, figure.



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Devolution under 13A

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by Neville Ladduwahetty

(This is an updated version of an article which first appeared in The Island on 16 March 2009. It is republished because of its relevance to the intention of the current government to implement the13th Amendment fully.

The defeat of the LTTE is not expected to bring a closure to Sri Lanka’s national question. It would, however, create the space for the evolution of a political solution, free of threat and intimidation. It would also create the space for the government to totally focus on issues, relating to resettlement, rehabilitation and development. Public opinion is that both issues need to be addressed, concurrently, if the military gains are to be consolidated.

The emphasis of the International Community has been on a political solution that addresses the concerns of all communities. While endorsing this view, India has been particular that such a solution should be based on the concept of devolution, as contained in the 13th Amendment, and, if necessary, beyond. These readings have influenced the deliberations of the All Party Repesentative Committee (APRC). Consequently, the approach of the APRC has been to evolve a new and, in their view, an improved version of the Provincial Council system, under the 13th Amendment.

After experiencing the functioning of the Provincial Council system, for two decades, consensus is that its costs outweigh the benefits. Irrespective of the explanations for its below expected performance, it would be worth the cost if it served its intended purpose of addressing the concerns of all the communities. Since Law and Order affects all members of all communities, it would be appropriate to assess whether the current provisions in the 13th Amendment would assure fairness and impartiality in its dealings with the Provincial Police Commissions.

Provincial Police Commission (PPC)

Appendix I of the Provincial Council List (List I of the Ninth Schedule of the 13th Amendment) describes the devolved powers, relating to Law and Order.

According to Clause 4, the PPC is to consist of three members: the D.I.G 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.

Clause 6 states: “The I.G.P shall appoint the D.I.G. for each Province, with the concurrence of the Chief Minister of the Province. However, where there is no agreement between the Inspector General of Police and the Chief Minister, the matter will be referred to the President, who, after due consultation with the Chief Minister, shall make the appointment.”

Clause 11.1 states: “The D.I.G. shall be responsible to and under the control of the Chief Minister thereof in respect of the maintenance of public order in the Province…”.

Thus, in addition to the D.I.G. being under the control of the Chief Minister, two out of two members of the PPC would in all likelihood have political affiliations which would make them lean towards the “interests” of the Chief Minister. To expect fairness and impartiality under such provisions is to be naïve. In the real world, the tendency for the PPC, as presently constituted, would be to encourage a high degree of partiality in favour of the Chief Minister’s interests, not to mention the interests of his/her loyalists, as well. While attempts are being made to depoliticize Presidential powers, through the 17th Amendment, and Independent Police Commission, provisions in the 13th Amendment would not deter the politicization of issues relating to Law and Order. This is a serious anomaly that needs to be corrected. However, the task is a daunting one because of the inbuilt procedural labyrinth.

Amendments to the 13th Amendment

Any amendment to provisions in the 13th Amendment requires conformance to the procedures set out in Article 154G:

“Every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province for which it is established, with respect to any matter set out in List 1…”

No Bill for the amendment or repeal of the provisions of this Chapter or the Ninth Schedule shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed in the Order paper of Parliament, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference, and –

where every such Council agrees to the amendment or repeal, such Bill is passed by a majority of the Members of Parliament present and voting; or

(b)where one or more Councils do not agree to the amendment

or repel such Bill is passed by the special majority required by Article 82.

According to the mentioned procedure, it is unlikely that a President would initiate action unless there is a public demand. This would mean that the public would have to organize themselves to give expression to such a demand. Assuming a President is convinced that an amendment is needed, the process involves drafting appropriate legislation, Gazetting it, and then circulating it to the Provincial Councils for comment. If even one out of the nine Councils objects, a 2/3 majority of the Parliament would be needed before it could become law.

Since no Provincial Council would agree to relinquish the advantages it possesses, under current provisions, as regards the composition of the PPC, one can be certain that any amendment in respect of Law and Order would require a “special majority”, meaning 2/3 of those present in Parliament voting for the amendment. The fact that it is near impossible to secure a 2/3 majority, under the proportionate representation scheme, is a fact that has to recognized and accepted. Furthermore, in the course of his determination, Justice Wanasundara stated: “Factually speaking, even the President has said recently that under the proportionate scheme, no political party would be able to secure anything more than a bare majority in the future” (Supreme Court case on The 13th Amendment to the Constitution, 1987, p. 347).

Thus, the reality is that the public may not succeed in securing the needed 2/3 majority to redress a provision that has the potential to seriously undermine its right to equality before the law when it comes to provincial matters. In such an eventuality, would not the sovereignty of the People be compromised? As stated by Justices L.H. de Alwis and H.A.G. de Silva, in their determinations: “Article 154G (2) therefore imposes a fetter on the Parliament in amending or repealing Chapter XVIIA or the Ninth Schedule and thereby abridges the Sovereignty of the People in the exercise of its legislative power by Parliament, in contravention of Article 3 and 4(a) of the Constitution” (Ibid.).

The determination of the Chief Justice and three other Justices, however, were: “…the legislative competence is not exclusive in character and is subordinate to that of Central Parliament which in terms of Article 154G (2) and 154G (3) can, by following the procedure set out therein, override the Provincial Councils. Article 154G conserves the sovereignty of Parliament in the legislative field…In our view 154G (2) and (3) do not limit the sovereign powers of Parliament. They only impose procedural restraints” (Ibid., p. 320).

There is no doubt whatsoever that “procedural constraints” imposed by 13A is a fetter to the unrestrained Legislative powers of Parliament that existed under Article 4 (a) and since Article 4 must be read with Article 3 these procedural constraints violate the sovereignty of the People whenever Parliament is unable to muster the 2/3 majority needed to amend any provision in 13A.

RECENTLY, SCOTLAND’S GENDER RECOGNITION REFORM BILL WAS VETOED BY THE U.K. GOVERNMENT BY USING SECTION 35 OF THE SCOTLAND ACT, THUS ENDORSING THE SUPREMACY OF THE U.K. PARLIAMENT OVER THAT OF SCOTLAND. THIS WAS POSSIBLE BECAUSE “PROCEDURAL RESTRAINTS”, SUCH AS THOSE THAT EXIST UNDER 13A, DO NOT EXIST UNDER DEVOLUTION IN the U.K.

Issues addressed thus far relate to amendments and repeals. 154G (3) relate to Bills in respect of any matter. Here, too, the President has to Gazette the Bill and circulate it to all Provincial Councils. If all Councils agree, the Bill is passed with a simple majority. If some disagree, a 2/3 majority is required for the Bill to become Law. On the other hand, if only some agree and only a simple Parliamentary majority is possible, the Bill would apply only to those Provincial Councils that agreed with the Bill. Would this not foster asymmetrical devolution? If one or more Provincial Councils call upon Parliament to make law on any matter, the passage of such a law, by a simple majority, would apply only to those Councils making the request. This too would foster asymmetrical devolution.

CONCLUSION

The Government is under pressure to implement the full provisions of the 13th Amendment. If Police powers, as required by the 13th Amendment, are devolved, the Law and Order situation in the country would be politicized far beyond what exists today.

Provisions, relating to Law and Order, as stated in Appendix 1 of List 1 of the 13th Amendment, was introduced in 1987. On the other hand, the need for an Independent Police Commission was introduced decades later in order to depoliticize Law and Order. Since Law and Order is central to Justice and overall security, the contradictions that exist between them need to be amended, along with the repeal of 154 G, because it is the only way the sovereignty of the People and the legislative powers of Parliament would be restored, prior to the full implementation of the 13th Amendment.

Such measures are justified because they are a byproduct of a political intervention by India, following the Indo-Lanka Accord. Real independence and the right of true self-determination require that all Sri Lankans are governed by Laws of their own making and not by what is imposed. Therefore, the Government has a moral obligation to its People to create the necessary conditions to protect the sovereignty of the People and the unfettered legislative powers of Parliament, encouraged by Section 35 of the U.K. Scotland Act.

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Govt. actions must be for people’s benefit

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President at the Independence Day ceremony on Saturday

By Jehan Perera

The government celebrated the 75th Anniversary of its independence from colonial rule under tight security.  President Ranil Wickremesinghe did not even deliver a speech on the occasion.  He had an excellent written speech, but chose not to deliver it for reasons not known.  The speech was circulated later. The exclusion of the general public from the parade grounds was another notable feature of the Independence Day event.  Under normal circumstances, Galle Face green where the celebration took place, is packed with people who come to enjoy the sea, the fresh air and the vast expanse of greenery.  The spectacle of a military parade and an air show provided an occasion that people would not have wished to miss if they had been given the chance to attend it.  But the government was clearly insecure and wanted to make sure it controlled the situation, which accounted for large security deployments.

The general public were kept away from the celebrations as the government feared that if they were permitted into the area some of them might protest.  Indeed, the previous night a sit down public protest (satyagraha) organised by a mostly youthful group of protestors was water cannoned and forcibly broken up.  The youth were protesting against the misallocation of resources for celebration at a time when the country’s people have little cause to celebrate.  Although there was a large presence of security forces, they stood by when a group of political thugs attacked the peaceful protestors.  When the satyagrahis resisted the attack they were chased, beaten and arrested by the security forces. The government was less concerned to win the hearts and minds of its people than to conduct its Independence Day event without disturbance.

 Ironically, the manner of the celebration, with the general public not present at the site of celebration, and security forces out in strength on the roads, was reminiscent of the days of war that the country experienced decades past.  In those days too, the Independence Day celebrations took place under tight security, with the people preferring to stay in their homes than to brave possible LTTE bombs. This throwback to the past is relevant as those years of war have contributed in no small measure to the economic collapse that has befallen the country and blighted the life of its people.  More than 70 percent of the population have reduced their food intake and 40 percent of the population have descended below the poverty line.  In recognition of the connection between ethnic conflict and economic underdevelopment, President Wickremesinghe has prioritized a political solution to the ethnic conflict without delay.

PUBLIC ANGER

The public protests against the celebration of Independence Day was not only in Colombo but also in other parts of the country, most notably in the north of the country.  The main Tamil political party as well as smaller ones also called for a boycott of the Independence Day events and did not participate in them.  University students in Jaffna declared a hartal and flew black flags.  Most of the people, however, showed no interest either way. There was no display of national flags in a spontaneous manner nor did the government make such an appeal.  It seemed as if the government was celebrating Independence Day for itself.  Gleaming new vehicles with police escorts drove in assorted governors, ministers and other dignitaries into the stalls where they would seat themselves with all the national television stations focusing on them. However, to the general public watching the celebrations on their television sets, the sight of the luxury vehicles bearing the dignitaries would have been infuriating.

 Not even a year ago, these same political leaders were hiding in the face of the protest movement that took to the streets in the aftermath of the collapse of the national economy and declaration of national bankruptcy.  The general public, many of whom had never taken part in public protests, came to the streets to protest.  They came from near and far, children with their parents, the elderly and the differently abled, to demand the exit of the government leaders who had stolen the wealth of the country and brought the masses of people, including them all, to near penury.  These same people who watched the Independence Day events on television would have been greatly angered to see those same political leaders now disembarking from luxury vehicles while they scraped the bottom of the barrel in their homes.  What they demand from the government, both in street protests and in their homes, is an end to impunity for corruption, abuse of power and extravagance in  public life, which the government appears to be shying away from.

 The question arises for whose benefit was Independence Day celebrated in this manner?  Independence Day in a situation of economic collapse was celebrated in a most unimaginative manner.  The government tried to heed the public opprobrium regarding the cost of the event, and reduced the size of the military parade.  It also axed the cultural parades that represent the aesthetic side of life.  Independence Day should have been celebrated differently, not for the political leaders and not for the international community, but for the people.  This event did not receive much international publicity.  It would not have changed the way the world sees us.  It did not touch the hearts of the Sri Lankan people either.  They were watching on their television sets and conscious of the expenditures that were being incurred for no good reason, and certainly not for their benefit.

BOLD PLEDGES

The celebration of Independence Day could have been done differently.  The government could have recognised the poverty that has ravaged the lives of the people.  It could have organised an Independence Day event that demonstrated an ethos of care for the people.  It could have brought a thousand schoolchildren from the poorest families around the country, and from all ethnicities, religions and castes, and made them a symbolic presentation of schoolbooks and school clothes that would have reflected the government’s commitment to invest in the country’s children.  This was an opportunity lost and would work to the detriment of the government which will be reflected in its electoral performance at the forthcoming local government elections. President Wickremesinghe’s pitch that the country needed a plan to become a developed country in 2048 is to miss people’s concerns to get by the day.  In his televised speech to the nation he said “Let us devote ourselves, unite as children of one mother. Let us make our country one of the most developed in the world by 2048, when we will celebrate 100 years of independence.”

 Despite all the criticism of the priorities of President WIckremesinghe and the government there are still many who continue to place their hope that the president will succeed in problem solving that is in the national interest.  One of President Wickremesinghe’s bold pledges has been to resolve the ethnic conflict that gave rise to three decades of war and to reach a situation of national reconciliation in this 75th year of Independence and “unite as children of one mother”.  When he first committed himself to this task three-months ago, there was some anticipation that this ambitious task may even occur prior to Independence Day itself, or “mission accomplished” would be announced on the auspicious day.  This has not been the case and it appears that even the first steps are yet to be made.  Now the focus of attention will be the president’s policy statement on February 8 when he reconvenes parliament following its prorogation by him a fortnight ago.

 National reconciliation in an ethnically divided society is never an easy proposition.  It requires the support of multiple actors in multiple sectors.  An indication of the president’s determination in this regard was the singing of the national anthem in both Sinhala and Tamil languages at the Independence Day event. This was after a lapse of four years and reflects the president’s resolve to overcome the divisions of the past.  It must be noted that it was under his leadership as prime minister in the period 2015-19 that the national anthem was sung again in Tamil on Independence Day after the passage of many decades.  There are elements in the president and his government that require support from civil society.  We need to overcome the legacy of past mistakes and forge ahead to a future in which lessons have been learnt and mistakes not repeated.

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Issues in fully implementing the 13th Amendment – Police Powers

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President J. R. Jayewardene and Indian Prime Minister Rajiv Gandhi at the signing of the Indo-Lanka Accord, which paved the way for the 13th Amendment..

By C. A. Chandraprema

While most provisions of the 13th Amendment to the Constitution have been implemented, sticking points have persisted with regard to two matters – the devolution of police and land powers. Appendix I of the Provincial Councils List in the Ninth Schedule of the Constitution provides for the devolution of police powers. The implementation of these provisions will entail the division of the Sri Lanka Police Force into a National Police Division which includes special units such as the CID; and a Provincial Police Division for each Province, headed by a DIG.

According to Section 6 of Appendix 1, the IGP shall appoint a DIG for each Province with the concurrence of the Chief Minister of the Province. If there is no agreement between the IGP and the Chief Minister, the matter will be referred to the National Police Commission, which after due consultations with the Chief Minister shall make the appointment. Thus, the effective appointing authority of the provincial DIG is the Chief Minister. Section 11 stipulates that all Police Officers, serving in units of the National Division and Provincial Divisions, in any Province, shall function under the direction and control of the provincial DIG who, in turn, will ‘be responsible to’ and ‘under the control of’ the Chief Minister in respect of the maintenance of public order and the exercise of police powers in the Province.

According to section 12.1, it is the Provincial police forces that will maintain law and order and be responsible for the prevention, detection and investigation of all offences in the Province except for the 11 specified offences allocated to the National Police Division which are as follows: international crimes, offences against the State, offences relating to the armed services, offences relating to elections, currency and government stamps, offences against the President, Ministers, MPs public officials, judges, etc., offences relating to state property, offences prejudicial to national security, offences under any law relating to any matter in the national government list and offences in respect of which courts in more than one province have jurisdiction. Most of these offences are not really a part of day to day police functions and occur infrequently. Thus, under the 13A, it is the Provincial Divisions which will handle the bulk of actual day to day police work.

Provincial Police to the forefront

Signifying the extent to which the National Police Division will be expected take a back seat, Section 10.1 of Appendix 1 requires members of the National Police Division to ordinarily be in plain clothes, except when performing duties in respect of the maintenance of public order. For all practical purposes, the only uniformed police force, visible to the public, will be the Provincial Police. Recruitment to the National Police Division is to be done by the National Police Commission and to the Provincial Police Divisions by the respective Provincial Police Commissions. According to Section 4, the Provincial Police Commissions will be made up of a) the Provincial DIG, b) a person nominated by the Public Service Commission, in consultation with the President; and c) a nominee of the Chief Minister of the Province. Thus the Chief Minister has complete control over both the Provincial Police Chief as well as the Provincial Police Commission.

In addition to the above, according to Sections 7 and 8 of Appendix 1, the Provincial Police Commissions, which are completely under the sway of the Chief Minister, will have a say in deciding on the cadre and salaries and even the type and quantity of firearms and ammunition used by the Provincial Police forces. However, the potentially horrendous implications of Sections 7 and 8 are mitigated to some extent by the proviso that ‘uniform standards and principles’ shall be applied across the board with regard to these matters for all Provincial Police Divisions.

When recruitment for the Provincial Police Forces are to be carried out by Provincial Police Commissions which are completely under the sway of the Chief Ministers of the Province, the politics of the Province will become the politics of the Provincial Police force, as well. The most obvious foreseeable result of recruiting, within the Province for the Provincial Police force, is that the Northern Province Police force will be predominantly Tamil, the Eastern Province police force largely Tamil and Muslim, and the police forces of all other Provinces, predominantly Sinhala. The implications of politicians, elected on communalistic political platforms, having armed police forces under their control, to further their political objectives, should be clear to anybody. For a country like Sri Lanka which has experienced protracted conflict between ethnic and religious groups, the police powers provisions in the 13A are a guaranteed recipe for disaster.

An equally important consideration is the fact that crime prevention, detection and investigation is very much an inter-provincial, countrywide activity in this country. The creation of nine separate Provincial Police Divisions, answering to nine different lines of command, will seriously hamper the crime fighting capacity of the police which we now take for granted. Today, the IGP and the police force, under him, acts on the imprimatur of the national government, and its outreach extends to every nook and corner of the country. If the 13th Amendment is fully implemented, and the principle day to day police functions, such as maintaining law and order, and crime fighting, becomes the exclusive preserve of the various Provincial Police forces, whose authority does not extend beyond the borders of their Provinces, even pursuing a criminal across Provincial borders will become a tedious, process heavy with bureaucratic procedures and the entire country is going to suffer as a result. (The Colombo and Kotte city limits will not belong to the Western provincial police division but to a Metropolitan police under the National Division according to Item 1 on the Provincial Councils List.)

Readers may recall the 2005 incident during the ceasefire where some policemen, attached to the National Child Protection Authority went into an LTTE held area in search of a fugitive European pedophile and were arrested by the LTTE police. If the police powers in the 13A are fully implemented, in a context where some Provincial administrations are going to be openly hostile to the national government, as well as to other Provincial administrations, similar incidents will become day to day occurrences. The sheer practical impossibility of effectively carrying out police work in a small, densely populated country divided into nine separate police jurisdictions, manned by police forces under nine different lines of command was one of the main reasons why the police powers in the 13A have remained unimplemented for the past 37 years.

Political control over Provincial Police forces

While the IGP will nominally remain the head of the Sri Lanka Police force, even under the 13A, actual day to day police work will become the preserve of the provincial DIGs, acting under the direction and control of the respective Chief Ministers. Under Section 12.4(b) of Appendix 1, the IGP’s discretion in matters related to crime fighting will largely be centered on assigning investigations to units of the national division, like the CID, if he believes that is required in the public interest. But even to do that, he will need to ‘consult’ the Chief Minister of the Province and to have the approval of the Attorney General. Appendix 1 does not have provisions for any mechanism to enable the Provincial Police forces to work in unison in crime fighting or indeed any mechanism that can respond expeditiously to crime fighting requirements throughout the country.

The 13A was passed into law nearly four decades ago, in a different era. In the new millennium, the dominant trend has been to prevent politicians from influencing the police force but the provisions in the 13A seeks to do exactly the opposite.

Even though the new millennium has seen three Constitutional Amendments, (the 17th, 19th and 21st) promulgated for (among other things) the depoliticisation of the police force, Appendix 1 of the Provincial Councils List in the Ninth Schedule of the Constitution, was left largely untouched. I use the word ‘largely’, because the 17th Amendment did make a few changes in Appendix 1, but that was only to reduce the powers of the President. The Chief Minister’s powers over the Provincial Police remained untouched.

The total and complete politicisation of the police force, envisaged in the 13A, renders it out of step with the times. It was just a few months ago that the 21st Amendment to the Constitution was passed and under its provisions, the President cannot appoint the IGP unless the Constitutional Council approves his recommended candidate and the President cannot appoint the Chairman and Members of the National Police Commission except on the recommendations of the Constitutional Council.

How will the people of this country react if the police powers, envisaged in the 13A, are implemented, and they wake up one morning to find that the Chief Ministers have been given effective control over the appointment of the provincial DIGs and complete control of the Provincial Police Commissions?

How will the people react when they find that the country has been rendered ungovernable overnight because the police force has been fragmented into nine separate police forces, under nine different chains of command? The gestation period for the fallout resulting from a wrong decision with regard to the police powers laid out in the 13A will not be years or months but weeks and days. Hence this is an area where the government will have to proceed with great caution.

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