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‘Nobody is safe until everyone is safe’

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The world faces a ‘catastrophic moral failure’ because of unequal COVID vaccine policies. With more than 80% of the COVID vaccines being given in high and upper-middle income countries, low-income nations are left at the receiving end with just 0.5 percent.

The inequitable distribution of vaccines have left the poor nations in the lurch and if the rich countries ‘keep their vaccine promises, the pandemic can end,’ observes the Director General of WHO, Dr. Tedros Ghebreyesus.

Randima Attygalle speaks to Dr. Palitha Abeykoon, World Health Organization (WHO) Director General’s Special Envoy to facilitate the COVID-19 response in Southeast Asia, for the latest developments of the pandemic which has taken a new shape, pushing countries to deploy new management strategies. Following are excerpts:

 

Q: With new COVID variants emerging, what are the predictions for both the world and us in the next few weeks and months and what precautions are encouraged?

A:

Considering the factors and trends in other parts of the world, particularly in India, we can talk of certain potentials. As a country, we managed both the first and the second waves relatively well with a ‘whole of society approach’; people and the government stakeholders, particularly the frontline health workers and defense personnel working together, standing on the same side. However, with the onset of the recent festive season, this ‘whole of society’ approach was slackened leading to this spike we are experiencing right now. Even in the case of India with some mammoth super-spreader events and dropping of the guard including non-observance of simple health protocols, a spike was inevitable. We are only hoping that it is only a spike and not a surge, both locally and globally.

Here at home, if the number of infected cases does not rise rapidly in the next two weeks, our health sector will be able to manage the situation, albeit with considerable strain, but if the numbers do not come down by the middle of next week or so, it will certainly lead to a deeply worrying situation.

The evidence we have now reflects, (unlike in the first or second round), that the UK Variant of Concern (B1.117) is now established in Sri Lanka and with this virus the transmission is more efficient, more young people are infected, more serious complications are developed with more patients requiring oxygen and ICU facilities. If numbers increase, we will have a problem with capacity. The health sector is now setting up intermediate centers to isolate and treat patients, however, it will be a big strain on the system. Although we were fortunate to have vaccinated our frontline health workers and other personnel, we should not forget that they are working round the clock and are physically and even mentally exhausted. The logistical demands and shortcomings are an added burden on them.

The world still does not know enough about COVID 19 variants or the way the virus behaves, hence extreme precautions are necessary. The University of Jayewardenapura is doing a splendid job isolating the variants, particularly the variants of concern. We will need to do more sequencing which is a very expensive exercise. However, we cannot afford to neglect that also. There has been concern that some of the variants are not completely covered by some of the vaccines available; but this should not be much of a worry as the vaccines we use do give adequate protection, particularly preventing serious complications and death. Random testing in high transmission areas should also be given more muscle.

There is also this recent story in a reputed journal gaining ground that transmission is through aerosols in addition to being through droplets but research is still in process to establish it. In any event the key measures needed for preventing transmission in either case would be similar and are now well known.

 

Q: What lessons can we draw from India’s predicament?

A:

India is alerting us that ‘no one is safe unless everyone is safe.’ Being a large player in the drugs and pharmaceutical industry, India is today struggling to meet their health demands. With havoc in Delhi and Maharashtra, they do not have sufficient personal protection equipment, oxygen etc. We need to be mindful that the Indian situation can affect our supplies as well as we are a major importer of Indian pharmaceuticals and equipment.

Today the Indian health system is burnt out and this is an eye opener for us. We need to endeavour to prevent the Indian variant entering Sri Lanka and do more sequencing to determine if the new Indian variant (B. 1.617) which seems more virulent and produces serious complications, has entered the country.

In the past few weeks, we have been too lax and let our hair down too early and easily. The situation in India should push us to strengthen our ‘risk communication’ to the public.

Q: Do you think there is a need for tighter inter-province travel restrictions right now because despite warnings, people from ‘red zones’ such as Colombo still tend to flock into outstations?

A:

Yes, certainly there should be certain restrictions. In a country where the majority are daily wage earners, we cannot afford to go down for a long lock down risking the livelihood of thousands. What is needed is a balancing act for which selective lockdowns which are now in force and travel restrictions as indicated. There should also be other restrictions with regard to assembly, any type of gathering or ceremony and these restrictions should be strictly enforced. It is urgent that the transmission from ‘red zones’ to other ‘not-so vulnerable regions’ is suppressed. I reiterate that we cannot afford to overwhelm our health sector exceeding its capacities.

 

Q: What is the overall success rate of the vaccination programme world over?

A:

It is very clear that the countries which vaccinated more than 50% of their populations have demonstrated a lesser number of cases. In fact Israel has achieved nearly 85% of a roll out – the first country to achieve such a large number – and it is considered to have achieved ‘herd immunity’ and able to relax the earlier restrictions. For a while Israel has been reporting a very few cases and this is an example to the rest of the world. Even in England, the number of cases has come down, and can be attributed in some measure to the impact of the vaccination program, and so is the case in some of the states in the U.S.

 

Q: Many malpractices and managerial drawbacks were witnessed when the first dose of the Covax vaccine was locally administered. How important is it not to replicate these during a possible second roll out?

A:

If the programme stuck to its original mandate of vaccinating the frontline personnel and those over 60 years, it would have been much more successful because still the world over, most number of cases and deaths are reported among the elderly. With the initial mandate shifting from senior citizens, some people attempted to take advantage of the vaccination program and this was unfortunate. So prioritizing of the elderly and those with co -morbidities in the next phase of the program is still a must. We also need to prioritize factory workers and those who contribute significantly to the economy and among whom the spread of the infection is common.

 

Q: There is concern over the second dose with a possible shortage of vaccines. Where do we stand in this backdrop?

A:

Still there is an uncertainty about the quantity of the second doses which will be available, and whether we will receive these in time. I am aware of the efforts made by those responsible to ensure supplies for the second dose. We have already got around 600,000 doses of the Chinese Sinopharm vaccine which is awaiting WHO Emergency Use Listing which is likely to be obtained by the second week of May. (Our regulations require either WHO clearance or another similar stringent authority’s clearance for the administration of a new vaccine). We are also expecting the Russian Sputnik V vaccine in the next few weeks. With the possible arrival of these vaccines, we should be in a much better position within the next four to five weeks support the control of the spike to a limited extent and expand the vaccination program simultaneously.

 

Q: What are the other South East Asian countries which come under your purview that administer Chinese vaccinations and the Russian Sputnik V?

A:

The Maldives started administering the Chinese Sinopharm in small doses about two weeks ago. This vaccine was also gifted to Nepal and just a few days ago they commenced their roll out. Indonesia is using the other Chinese vaccine- Sinovac. Pakistan is using both Sinopharm and Sinovac. The Sputnik V is not yet being used in the region but it is likely that it will also soon get into the regional vaccine portfolio. Beyond the South East Asian region, the Chinese vaccines are also being used in the UAE, many South American countries and in certain parts of Africa.

 

Q: Bhutan is considered a model in COVID management efforts. Can you throw more light on this?

A:

It is indeed a model. Bhutan illustrates well how an enlightened leadership and a disciplined and sensible population managed to mitigate the risks and prevent the transmission and spread of the disease in the country. Bhutan prevented the infection coming into the country for a long time but it eventually did arrive there from the borders of her ‘big brothers.’ Nevertheless, they have been very successful in suppressing the virus. So far the country has only reported less than a thousand cases and just one death. It is also a country which has already vaccinated nearly 70% of their population, more than many of the developed countries. This is quite a feat.

 

Q: WHO Chief has expressed his concerns about the inequitable distribution of vaccines. In his recent report which appeared in the New York Times he had noted that if the rich nations ‘keep their vaccine promises, the pandemic can end.’ What are your thoughts?

A:

Although the rich countries talk of ‘One-health, universal health coverage’ etc. they have left only very few vaccines for the poor countries. More than 80% of the vaccines are found in the rich countries. This is a very sad situation and the rich countries should now ‘make a choice’ as the WHO Director General remarked. The ACT Accelerator (Access to COVID-19 Tools) was set up by a number of organizations including the WHO and European Commission and several more global bodies to enable tools such as vaccines, drugs, supplies and equipment to fight the pandemic. In fact the WHO has developed a fair allocation formula through the Covax facility. This global collaboration has worked to a large extent with regard to everything other than the vaccine distribution that was iniquitous. This is a serious problem and apart from the ethics and social justice, the rich countries should realize before it’s too late that they are not going to be safe until others are also safe. In economic terms alone too, the global economy cannot recover if there are serious disparities in vaccine coverage and it is a false economy for countries to do it alone.

 

 



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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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