“… we find that an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between government authorities and organized groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflict and extends beyond the cessation of hostilities…. (and) in the case of internal conflicts, a peaceful settlement is achieved”.
by Neville Ladduwahetty
The most recent challenge that Sri Lanka has had to face was associated with UNHRC Resolution A/HRC/46/L.Rev.1. This Resolution was primarily based on the Report of the UN appointed Commissioner for Human Rights. Despite the objections raised the Sri Lankan government on grounds that the Report of the Commissioner violates the mandate granted by General Assembly Resolution 48/141 and that the Resolution itself violates the UN Charter and lacks “impartiality, objectivity and non-selectivity”, the Resolution was adopted by the Human Rights Council on March 23, 2021.
The compulsion to go to such extremes and adopt a Resolution violating due process established by the UN, is driven by internal politics within countries that initiated the Resolution and by geopolitical interests of major powers.
Internal political compulsions are driven by the priorities of the Tamil minority concentrations resident in defined electorates in countries such as U.K., Canada, Germany and other European countries. When prospective Members of Parliament in these countries, regardless of which political party they represent, campaign for the votes of the Tamil minorities, they when elected, become the torchbearers for the priorities of the Tamil minorities, because it is their vote that decided whether they are elected or not. Consequently, since accountability for issues arising from the non-international armed conflict in Sri Lanka is the single-minded focus of the Tamil minorities, accountability has become a government policy for elected governments in these countries.
On the other hand, geopolitical compulsions are driven by a coalition of democracies forging security alliances such as the Quad, headed by the U.S. to contain China’s global expansion in the South China Sea founded on the Chinese claim of nine-dash line and its inroads into the Indian Ocean Rim countries in pursuit of their Belt and Road Initiative. These developments have energized the U.S. to adopt the policy of “Pivot to Asia” through the stated policy of forging a new Indo-Pacific Maritime Order.; a policy that is being relentlessly pursued by the U.S. in the form of forging alliances. the latest being the Maldives and the consequent isolation of Sri Lanka in this part of the Indian Ocean.
ADDRESSING INTERNAL COMPULSIONS
Internal compulsions are driven by the call to address accountability arising from issues relating to the non-international armed conflict within the time frame of signing the Ceasefire Agreement on February 22, 2002 and May 19, 2009 when the conflict ended. Having established the time frame, the next step is to establish the context in which to address accountability. In this regard, a context that would be acceptability to all concerned should be those established by the Panel of Experts appointed by the UN Secretary General, the Office of the High Commissioner for Human Rights and by the Appeal Court of the International Tribunal of former Yugoslavia.
The UN appointed Panel of Experts in their report stated: “There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct of both government and the LTTE”.
The Report of Office of the High Commissioner for Human Rights on Sri Lanka (OISL) states: “Paragraph 182 of The OHCHR report states: “Article 3 common to the four Geneva Conventions relating to conflict not of an international character is applicable to the situation in Sri Lanka”.
Paragraph 183 goes on to state: “In addition, the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable to non-international armed conflict”.
Defining what constitutes an armed conflict, the Appeals Court of the International Tribunal on former Yugoslavia (1995) in the case of Prosecutor v. Dusco Tadic stated: “… we find that an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between government authorities and organized groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflict and extends beyond the cessation of hostilities…. (and) in the case of internal conflicts, a peaceful settlement is achieved”.
Thus, it could justifiably be concluded that the context in which accountability issues should be addressed is International Humanitarian Law since the conflict in Sri Lanka was a Non-International Armed Conflict and the applicable law is International Humanitarian Law that acknowledges the derogation of Human Rights Law except for a defined few defined as the “hard core” of Human Rights during an officially declared emergency. Since these laws are codified in Additional Protocol II of 1977, issues relating to accountability should be addressed within the context of Additional Protocol II of 1077 that is acknowledged by the community of nations as a part of customary law.
Therefore, the task at hand is to evaluate any and all evidence of any violations of International Humanitarian Law as stated in the OISL Report, in the context of provisions in Additional Protocol II of 1977, subject to derogation of International Human Rights Law that is recognized by the International Covenant on Civil and Political Rights (ICCPR) and by Article 15 (7) and (8) of the Constitution during a declared emergency. In this regard, Paragraph 175 of the OISL Report states: “OISL notes that Sri Lanka has submitted a Declaration of a State of emergency dated 30 My 2000, derogating from articles 9 (2), 9 (3), 12 (1), 12 (2), 14 (3), 17 (1), 19 (2), 21 and 22 of the ICCPR. Measures taken pursuant to derogation are lawful to the extent they comply with the conditions set out in international human rights law…”.
In explaining the relationship between international human rights law and international humanitarian law during armed conflict, the International Court of Justice has stated: “…. the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law” (Applicable International Human Rights and International Humanitarian Law Framework – UN).
Considering the material presented above, it is recommended that a document should be prepared on the basis of principles of Distinction, Proportionality and Military Necessity on which is founded International Humanitarian Law an embodied in Additional Protocol II of 1977 that addresses any alleged violations stated in the OISL Report by a group nominated by the Ministry of Foreign Relations. Such a document should include material proposed by the international experts appointed by the Paranagama Commission together with material from Lord Naseby, as well as any other related material for distribution to all countries, in order to convey to them a perspective that thus far has not being presented at repeated sessions of the UN Human Rights Council and other International forums.
The mandate of the three Member Commission of Inquiry appointed by the President as part of the Domestic Mechanism to address accountability states: (a) “Find out whether preceding Commissions of Inquiry and Committees which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such offences”. Since the mandate does not specify the criteria and the time frame that should be used to distinguish human rights violations from humanitarian law violations, it would be up to Commission to decide how to distinguish between the two types of violations bearing in mind that the two types of law are applicable over different time frames.
The UNHRC 46/1 Resolution calls for the Office of the High Commissioner “to collect, consolidate, analyse and preserve information and evidence…to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction” (Paragraph 6). In short the evidence is gathered at a cost of US $ 2.8 Million to facilitate Member States to exercise universal jurisdiction. Thus far, universal jurisdiction has been exercised in regard to violations that come within the framework of a “Grave Breaches” regime that have occurred during certain internal conflicts that were governed by International Human Rights Law. However, in the case of Sri Lanka the conflict is categorized as a non-international armed conflict that is governed by International Humanitarian Law. Therefore, while the international community has accepted universal jurisdiction in the case of international armed conflicts along with Protocol I, the jury is still out as to whether it applies to non-international conflicts as in Sri Lanka as expressed by the ICRC comment cited below made to the General Assembly.
A document that addresses accountability from a Sri Lankan perspective would stand in good stead in the event a country or countries attempt to exercise universal jurisdiction relating to issues arising from the armed conflict. However, since the conflict in Sri Lanka was a non-international armed conflict the application of universal jurisdiction is fraught with fundamental issues as is evidenced by the statement of the ICRC to the UN General Assembly at its 71st session Sixth Committee, when it stated: “The updated commentaries also address other fundamental issues, such as the time frame for fulfilling the obligation to investigate alleged grave breaches and either prosecute or extradite those responsible; the challenges encountered by States when implementing universal jurisdiction; the state of international law today with regard to the potential immunities from jurisdiction and prosecution for alleged perpetrators of serious violations of IHL; and the possible applicability of the grave breaches regime to serious violations of IHL in non-international armed conflict” (emphasis added).
ADDRESSING GEOPOLITICAL COMPULSIONS
The strategic position of Sri Lanka in the Indian Ocean has been increasingly coming into focus with the conclusion of the armed conflict in Sri Lanka. This, together with China’s policy to pursue its expansion founded on its Belt and Road Initiative has increased the focus on Sri Lanka. The need for the U.S. to contain China’s expansion in the South China Sea and in the Indian Ocean Rim countries has prompted the U.S. and its allies to build alliances such as the Quad that include India, Japan and Australia. India’s inclusion in the Quad was a recent development and an even more recent development was the Maldives entering into security related agreements with the U.S. and India.
This has isolated Sri Lanka. With the Quad attempting to extend its influence to countries East of the Malacca Straits, Sri Lanka’s isolation would be even greater. However, Sri Lanka would not be facing such isolation had it succumbed to U.S. pressures and signed the MCC Compact and SOFA after having signed ACSA. Although Sri Lanka managed to emerge ostensibly unscathed by not caving into U.S. pressure, its repercussions were experienced in Geneva. However, for all intents and purposes, the perceived isolation of Sri Lanka in the current context is bound to be taken advantage of by China to build even stronger bonds than those existing today. This is inevitable since China’s foot print is already well established in the Colombo Port City, the Colombo International Container Terminal and the harbour at Hambantota for the next 35 to 99 years.
It is most likely that the U.S., India and the rest of the Quad are going to extract a heavy price for the presence of China to the extent it has. This compels Sri Lanka to make hard choices similar to the ones that countries East of the Malacca Straits would have to face in the coming years. As for Sri Lanka, it cannot afford to offer planned infrastructure projects such as the West Container Terminal to India/Japan in the hope of appeasing one or more members to the Quad to balance the influence of China. This would amount dividing national projects between the Quad and China.
The way out for Sri Lanka to prepare the tender documents and call for open international bids in a transparent manner, and award the contract to the successful bidder regardless of geopolitical considerations. For instance, the solar power project in the three islands off the Jaffna peninsula should be awarded to China because China was chosen by the ADB as the successful bidder after addressing the security concerns of India, but Sri Lanka certainly need not abandon the project because of India’s concerns.
Since Sri Lanka’s stated Foreign Policy is Neutrality; and Non-Alignment, entertaining unsolicited bids for projects would amount to violating that policy. How Sri Lanka could live up to the promise of its stated policy and engage with all countries is to be open and transparent in the manner it implements its planned developments.
The challenges facing Sri Lanka, apart from the effects of COVID-19 pandemic and its impact on the economy and the livelihood of the people are primarily from two sources. One is from internal pressures from the Tamil concentrations in defined electorates in countries such as U.K., Canada, Germany and other European countries that determine who gets elected to their respective Parliaments. Consequently, to these politicians the cause of their Tamil concentrations relating to accountability has become a policy for these governments. The second challenge is from geopolitical rivalries between major powers and others aspiring to be major powers attempting to control the Indo-Pacific Oceans. It was the role of the Oceans in maintaining the super power status of the U.S. that made US Navy Admiral Mahan to recommend to President Roosevelt the importance of oceans, especially the Pacific, to the U.S. The Indian Maritime Doctrine-2004 is based on this U. S. concept (Khan, May 23, 2010). The rivalry arose when China’s claims in the South China Seas and the concept of Belt and Road Initiative announced in 2013 were superimposed on the U.S. formulations.
The impact of these developments was the emergence of the Quad security alliance headed by the U.S. involving Japan and Australia and recently India, and even more recently the Maldives. The Quad started out as a humanitarian exercise to address the disaster following the 2004 tsunami. The transformation into a security alliance was to be expected in the wake of China’s claims. However, the impact of all these developments is to isolate Sri Lanka. What is recommended is a strategy for Sri Lanka to meet the challenges arising from the geopolitical rivalries in the Indo-Pacific.
The two recommendations presented above to overcome these challenges are: 1. To prepare a comprehensive document as suggested above that addresses the Internationally recognized Humanitarian Law violations as alleged by the Office of the Commissioner for Human Rights in the OISL Report, in the context of Additional protocol II of 1977, and circulate and canvass through Sri Lanka’s Missions, all the Member States of the UN, in order to convey Sri Lanka’s perspective that hitherto has not been presented to the Human Rights Council or to any other international forum. 2. In keeping with Sri Lanka’s declared Foreign Policy of Neutrality and Non-Alignment, follow due process in the award of contracts relating to infrastructure projects by not entertaining unsolicited proposals from any quarter and call for international bids based on tender documents prepared in Sri Lanka independently or with external collaboration when necessary, without assigning them to designated entities based on geopolitical compulsions; an example being the West Container Terminal.
These recommendations are presented with a view to ensuring that Sri Lanka retains its independence, its sovereignty, its territorial integrity and develop as a free Nation State.
Devolution under 13A
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.
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.
Govt. actions must be for people’s benefit
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.
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.
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.
Issues in fully implementing the 13th Amendment – Police Powers
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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