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Dangerous and meticulous work copying Sigiriya frescoes in Bell era (1896)

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(Excerpted from Sigiriya Paintings by Raja de Silva, retired Commissioner of Archaeology)

RE-DISCOVERY AND DOCUMENTATION (Early Visits)

The village of Sigiriya is mentioned in the 16th century book of Sinhala verse titled Mandarampura-puvata. From then on, the site seems to have disappeared from the public record until its rediscovery in the 19th century. Major Forbes of the 78th Highlanders and two companions rode from Polonnaruva through Minneriya and Peikkulam in search of Sigiriya, and reached the site early in the morning of a day in April 1831 (Forbes 1841).

They returned to the site two years later and Forbes explored further the cavernous walled gallery on the western side of the great rock, which led towards the summit. Forbes was surprised to observe a durable plaster on the brickwork of the wall, while above the gallery, especially in places protected from the elements, the plaster was seen to be painted over in bright colours. However, he was disappointed and puzzled in not recognizing any representations of the lion, which, according to local lore, gave the name of Sigiri, i.e., Sinhagiri to the rock.

The lion that eluded Forbes was tracked down by the next visitor, who remained anonymous in recording his impressions in 1851 under the title “From the notebook of a traveller” in a magazine known as Young Ceylon. This early visitor described the gallery as a long cavernous fissure, the outer edges of which were deeply grooved and a brick wall raised there, nearly to the roof. The inner surface of the “cave” was described as “covered with a coating of white and polished chunam gleaming as if it were a month old”.

Some of the plaster from the ceiling and the rock side of the gallery had fallen off, but it was noted by the visitor that “there was a profusion of paintings, chiefly of lions, which is said to have given the name of Singaghery, Sihagiri or Seegiry to the ancient site”. No other visitor had reported on these lions.

Twenty four years later, Sigiriya and the paintings were brought to public notice by TW Rhys Davids (1875), formerly of the Ceylon Civil Service, in a lecture given before the Royal Asiatic Society, London. Rhys Davids described his observation, through a telescope, of the “hollow” halfway up the western side of the rock, with its surface covered with a fine hard “chunam” plaster on which were painted figures. He mentioned that the northern (i.e., further) area of the gallery was covered with ornamental paintings (again, to be lost not long after) and thought that a large number of these may have been erased with the passage of time. By the close of the century, when the Archaeological Survey Department (ASD) commenced work at Sigiriya, these paintings had all disappeared.

TH Blakesley (1976) Public Works Department, viewed the paintings from afar in 1875, and reported for the first time on their subject, which he recognized to be female figures “repeated again and again”, showing only the upper parts of their bodies, and richly ornamented with jewellery. The figures (he said) had a Mongolian cast of features. Blakesley also examined the plaster layer adhering to the accessible parts of the main rock, and remarked on the existence of paddy husks in the ground.

Reports of the existence of paintings at Sigiriya had attracted the attention of connoisseurs of art in Sri Lanka and in England, and Sir William Gregory, the former Governor, requested Alick Murray (1891), Provincial Engineer, to attempt to reach the paintings and make reproductions of them. This proposal was sanctioned by Sir Arthur Gordon, the Governor, who gave every encouragement to the project. Murray went to Sigiriya, fired with enthusiasm for this pioneering venture, but was disappointed to discover that the local villagers would have no part of his plans for disturbing the rock chamber which, they imagined, was inhabited by demons. The populace, however, was, persuaded to clear the jungle at the base of the rock in the required direction, while Murray awaited the arrival of Tamil labourers who were urgently requested from South India.

The Tamil stone-cutters (who had no fear of Sinhala demons) bored holes in the rock face, one above the other, into which were fixed with cement, iron jumpers. As they went higher up the rock towards the cavern containing the paintings, the man of the lightest weight had to be selected to bore the holes. After a while, even this labourer found it difficult to ascend higher. He supplicated that if he were allowed three days of fasting and prayer, he might succeed in finishing the task. Murray answered his prayer in the affirmative, thinking that it might lighten the man’s weight and thereby help him to reach the pocket containing the paintings. Once this goal was reached, it was found that the rock floor was at too steep an angle to permit one to stand or even sit on it. A strong trestle or framework of sticks was made and secured to iron stanchions let into the rock floor. A platform was made and placed on the framework to enable one to lie on his back and view the paintings.

On June 18, 1889, Murray made his historic climb into the fresco pocket, and he worked for a whole week lying on his back on makeshift scaffolding to make tracings of six paintings in coloured chalk on tissue paper. The work was done, climbing up and down each day, (as he said) “from sunrise to sunset”, the only inmates of the cavern being swallows who used to “peck at him resentfully”. When his work was reaching conclusion, a few of his friends including SM Burrows, Government Agent, Matale, hazarded the climb to the pocket to visit him, and it was suggested that a memento be left behind. A bottle was obtained and in it were deposited a newspaper of the day, a few coins, and a list of names of friends who had visited him at work. Murray’s party was astonished when a Buddhist monk and a Saivite priest sought permission to enter the chamber, and they were accommodated by Murray. They prayed for the preservation of the bottle, thereby adding solemnity to the occasion of its sealing into the floor with cement – a ceremony that was accompanied by Murray and Burrows singing “God Save the Queen”.

An unfortunate result of Murray’s excellent efforts at tracing the paintings under the windiest of conditions was that, on detaching the tracing papers that had been pasted with gum on the periphery of each figure, an egg-shell thin layer of painted plaster (i.e., the intonaco) also came away revealing a white framework of the layer of ground underneath. Another deplorable result was that a few Tamil labourers had scribbled their names on the painted plaster. The copies made by Murray were stated by Bell to have been exhibited above the staircase of the Colombo Museum.

Murray described the paintings as having been done on the roof and upper sections of the sides of the chamber; that they represent 15 female figures in all, but no doubt many more had existed originally, as traces of them were to be seen. The freshness of the colours (he observed) was wonderful, curiously, green predominating. Each figure was stated to have been life-size and many were naked to the waist, the rest of the form being hidden by representations of clouds. They were arranged either singly or in sets of two, each couple representing (he said) a mistress and a maid.

 

Access to Fresco Pockets

In 1896, Bell made regular access to the fresco pockets possible by the construction of a vertical ladder of jungle timber from the gallery to the cemented floor that was spread on the sloping -round of the rock cavern 40′ above. The shorter and narrower pocket A was made accessible from pocket B by a floor of iron planks set on iron rods as supports let into the surface of the rock horizontally and grouted in.

The early timber ladder was replaced by an iron wire vertical ladder with safety measures of hoops of cane and wire netting around it in 1896. A spiral staircase of iron steps was constructed in 1938. Another similar staircase was recently constructed by the Central Cultural Fund (CCF) cheek-by-jowl with the earlier construction, and is used as the method of access to the fresco pocket at a point to the south of the original doorway. Visitors now use the old stairway as the exit from the pocket.

Eighty five years ago entry to the fresco pockets was restricted to those who had obtained permits from the Archaeological Commissioner. (AC).

The public has the opportunity of taking their cameras into the fresco pockets, on permits issued by the ASD, and photographing the paintings. No persons are allowed to have their photographs taken in front of the paintings, and at least two guards are stationed inside the fresco pockets as a security measure. No electronic or other flash-lights are permitted in photographing the paintings.

 

Documentation and Copying of the Paintings

Bell decided to photograph the pockets from a distance at the same elevation, and record the disposition of the paintings within. For this purpose a four inch hawser was let down from the summit to the ground with an iron block tied to the end. Through the block a two inch rope was passed and an improvised chair firmly tied to it, whereon the photographer took his seat. The hawser was then hauled up from the summit, 150 feet up until the chair was level with the pocket and 50 feet clear of the cliff, but due to the force of the wind that caused it to sway in the air, the photographs taken were not clear.

It took DAL Perera, Chief Draughtsman and Bell’s “Native Assistant”, a week to do an oil painting to scale, while perilously suspended in mid-air like the man on the flying trapeze. The painting was later photographed and lithographed to make a plate. From the top of the iron ladder the rock curved inwards for four feet or so to an upward rising floor of pocket B where it was not possible to safely stand or even sit on the smooth surface. As a safeguard at the head of the ladder and along the entire edge of both pockets B and A to the north of it and the ledge between them, iron standards three foot three inches in height, with a single top rail, were driven into the rock Bell stated: “Without such a handrail, a slip on the smooth inclined floor of the pocket would have meant instant death on the rocks fifty yards below.”

In the last week of March 1896, Perera made copies of six paintings in pocket B while being dangerously seated on the sloping floor. In the following year with additional safeguards and working platforms, Perera continued copying the remaining paintings in the two pockets. Bell reported that 13 of the paintings in pocket B could be easily reached from the floor, being painted on the rock wall and the lower part of the oblique roof of the cave, but they were not at one level. It was these paintings that Perera copied in 1896 and 1897 while being uncomfortably perched on the sloping floor of the fresco pocket, which had in 1897 been cemented towards the outer edge.

The painting at the extreme south, i.e., No. 14 and the fragments No. 15, 16, 17, were out of reach and well up on the roof of the pocket. To get at these paintings, it was necessary to construct a “cantilever” of jungle timber, firmly lashed to a stout iron cramp let into the rock floor. To the end of this projection was tied a rough “cage” of sticks, from which uncomfortable and perilous perch Perera made copies of the last and highest figures in pocket B.

It was even more difficult and dangerous to fix a hurdle platform outside the narrow and slippery ledge separating pocket B from pocket A and onwards to the end of this pocket. It took 10 days to construct this stick-shelf (massa). In addition to P iron bars supporting the woodwork, the whole braced strongly to thick iron cramped into the rock, the platform had to be further held up by a central hawser and side ropes, hauled taut round trees on the summit 300 feet up. When finished this improvised platform stood out 15 feet from the cliff.

It took Perera 19 weeks to complete copying the 22 paintings – 5 in pocket A and 17 in pocket B.

The constructional details and measurements given above are intended to serve several purposes: to enable the reader to appreciate the labour and expertise in 1896 exercised by the authorities in setting up the elaborate apparatus for Perera to copy and photograph the paintings – all for the love of preserving our ancient artwork; to appreciate the great care taken by Perera under perilous conditions to make such excellent copies of 22 paintings, now exhibited in the Colombo Museum, which Bell extolled in superlative terms:

“It is hardly going too far to assert that the copies represent the original frescoes as they may still be seen at Sigiriya, with a faithfulness almost perfect. Not a line, not a flaw or abrasion, not a shade of colour, but has been reproduced with the minutest accuracy”. (Journal of the Royal Asiatic Society Ceylon Branch (1897).

The details and measurements are also intended to impress upon readers the magnitude of the feats of our craftsman in ancient times, who constructed broad, long scaffoldings rising to a height of around 400 feet using jungle timber and creepers; and to marvel that the artists painted their subject so well, during a very long period upon multi-layered plaster on the wind-blown exposed rock.



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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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