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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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From moonshine to whiskey and beer

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Austin Cambridge A50 (L) / The quiet Kiragara Road that runs past my house

by GEORGE BRAINE

I moved to Boralessa, my ancestral village, in 1977. Many villagers – who made a living as masons, carpenters, workers in tile factories and brick kilns – supplemented their income by brewing pot arrack. The main ingredient, coconut toddy, was readily available and so was the demand. Pot arrack was a cottage industry: the males did the brewing and the women sold it from home. Some of my immediate neighbours were brewers, the small-time mudalali across the road being the main supplier for the area. In the evenings, a steady clientele of regulars could be seen going into his house. As the evening drew on, drunks, mainly middle-aged men, would be staggering down the road, some singing bawdy songs and others picking quarrels with anyone around, using the foulest language.

Clearly, the producing and selling of pot arrack was illegal. So, why didn’t the police crackdown? The MP for the area, who also happened to be a cabinet minister, had requested the police to go easy on the pot arrack dealers. Those who indulged in the business were not well off and it provided an essential supplementary income to “feed their families”, never mind the damage done to the consumers’ health and family harmony. Anyhow, not to be put off, the police also went around to the dealers every month collecting their cut!

Distribution

When the supply exceeded local demand, the brewers found a ready market in nearby Negombo and further afield in Colombo and the suburbs. Transport was through two modes, train and car. In those days, I was teaching at the Kelaniya University and took the “office train” to work. Boralessa has a tiny railway station, manned by an agent (not a station master), with no security whatsoever. Men with four-gallon plastic containers filled with pot arrack would be hiding in the bushes around the station, and, as the train was pulling off, make a mad dash and scramble on to the train. The containers would be quickly hidden in the toilets or under seats. Although this was a daily spectacle witnessed by hundreds of passengers, not once did I see a raid by railway security, the police, or excise officers.

Transport by car was more spectacular. The chosen model was the sleek Austin Cambridge A50, vintage 1950s, perhaps the fastest and most manoeuvrable car in those days of tight import restrictions. Cars loaded with pot arrack would set off for Colombo, both day and night. The natural boundary between the north western province, where Boralessa is located, and the western province, where Colombo is, happens to be the Ma Oya river, crossed by the legendary Kochchikade bridge. Once the cars carrying pot arrack crossed the bridge, they were under a new jurisdiction and at the mercy of the police. Avoiding the main road on which a number of police stations were located, the drivers took circuitous back roads, but the police did their best to stop the cars. So it was a cat and mouse game – roadblocks, checkpoints, ambushes, gunfire, and high speed chases, the stuff of thriller movies. One of these drivers, I’ll call him Primus, recently told me of being fired on when he sped past the police. He is still alive to tell the tale, about 90 now.

Dankotuwa, a nearby town that was surrounded by large coconut plantations (providing the essential ingredient for pot arrack), also supplied the brew to the Colombo area. The best of the liquor, on par or even better than the legitimate variety, whether from Boralessa or Dankotuwa, was known as “Dankotuwa Special”. Many local musicians in those days were heavy drinkers, and a top musician told me not long ago that whenever he managed to get a bottle of the coveted “Dankotuwa Special”, he would get together with another well-known musician to enjoy the treat.

From pot arrack to kasippu

In the 1980s, due to various reasons, the supply of coconut toddy declined, but the demand for illicit liquor prevailed. Ever creative, villagers found a new way to continue with production. Instead of toddy, they began to use sugar dissolved in water, with generous doses of added yeast, to produce alcohol. This was kasippu.

The 1980s were a turning point for Boralessa because a large number of villagers began to travel to Italy, both illegally and legally, in search of work. Because the “Italians” had brought more prosperity to the villagers, the local MP, took a hands-off approach to the illicit trade; the police were given a free rein and could arrest and prosecute illegal brewers.

In the manufacture of kasippu, the fermentation process would take place in large, rusty barrels over a few days, and the barrels had to be hidden from the police. The village had enough hiding places – coconut groves, a weed-choked irrigation tank, long abandoned paddy fields, culverts, a thickly wooded area – for the purpose. The bottom of my property has a pond surrounded by overgrown shrubs, and one day I found two barrels there. After I spoke with the prime suspect, the barrels disappeared.

Not all barrels were properly sealed, so passing lizards, rats, snakes and other creepy-crawlies would fall in. To improve the “kick”, ammonia fertiliser, rusty barbed wire, and anything handy was added. Kasippu, unlike pot arrack, is very much a poison brew.

A grocery store not far from my house probably sold tons of sugar every week. This could be estimated from the lorry loads of sugar that were unloaded there. It also showed how much illicit liquor was brewed in the village.

The Italian sojourn brought prosperity and some villagers developed a taste for whiskey. The dealer across the road, who had given up his illicit trade because he now had two sons in Italy, once boasted to me that he now drank only “whiskey”.

Effects on the Lifestyle

A large number of villagers, both young and the elderly, consumed kasippu. I now realise that many, who worked as masons and carpenters, were alcoholics and this caused problems well beyond the immediate households.

Sundays were reserved for heavy drinking, which meant that being severely hungover, nobody turned up for work on Mondays. A head carpenter I knew, who built roofs (backbreaking work under a blazing sun), with a small team of assistants, dreaded Tuesdays because getting his men to turn-up for work took all morning. First, Anthony would call them, and they dutifully promised to turn-up at the worksite. But often, they didn’t. Then, Anthony would have to go around to their homes in a hired tuk, pleading and coaxing the men to join him. This was repeated weekly and Anthony was fed up till the pandemic hit and put an end to house construction.

Kasippu

also affected family harmony because the men were habitually drunk, broke, and in poor health, leaving the womenfolk to keep the home fires burning. Domestic abuse was common. I know of broken homes where the women had fled, unable to bear their misery.

Beer

About ten years ago, a liquor store opened in Boralessa. Hard liquor was too expensive for most locals but beer sales exceeded expectations. The consumers were mainly young men, who had not developed a taste for the hard stuff. Perhaps, they had also seen the scourge that kasippu caused, even within their families, and spurned the stuff. Most evenings, they would converge on the beer shop and hang out for hours, even sitting on the railway tracks.

Boralessa had come a long way from the days of pot arrack. People still drank, some copiously, but I no longer see anyone staggering down the quiet Kiragara Road that runs along my property, singing bawdy songs. Most of the heavy drinkers have passed away, and the younger generations, bolstered by cash infusions from abroad, have become “respectable”. But I do miss the old Boralessa, where moonshine was king and daredevil drivers played cat and mouse games with the police.

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Partnership between govt. and other parties necessary to resolve national issues

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by Jehan Perera

The NPP’s main attraction at the presidential election, and one of its key campaign promises, was to bring a halt to the corruption that has increasingly held the country in its thrall. Large scale corruption from top to bottom and encompassing both the public and private sectors became normalised following the opening up of the economy in the late 1970s. Huge development projects and foreign aid provided opportunities for corruption to those in positions of power. The collapse of the economy in 2022 and accompanying hardships to the masses of people has stiffened the resolve of the general population to get rid of corruption and those implicated in it. As a political party that never wielded political power, only the NPP, among front running parties, was spared the blame.

The issue of cleansing the country of its Augean Stables has come to the centre of people’s governance concerns and nothing else can overshadow it. The vain attempt by some of the opposition parties to whip up ethnic nationalism is not gaining any traction. With the sole exception of the NPP, there is no mainstream political party, with those accused of corruption in their midst, that can convince the electorate that they will have the political will to tackle the problem of corruption. Therefore, arguments of the opposition political parties that the government is failing to deliver on its promises, such as increasing the salaries of public servants and reducing the cost of living, are not having an impact on an electorate whose primary aspiration is to get rid of corruption and those who have been complicit in that corruption.

The arrest and incarceration of two key members of the former government would satisfy the electorate for the time being that the government is serious about tackling the problem of impunity that has accompanied corruption. One of those arrested on charges related to an unregistered luxury vehicle has a history of violent behaviour. But he has never been arrested before, perhaps due to his family ties with the country’s pre-colonial nobility and perceived ability to pull in the votes of that sector of society. However, the government has now arrested both him and another former member of the government, who has himself behaved violently in parliament no less, on the relatively minor charges of possessing unregistered vehicles. This is not comparable to the billions that many others of their compatriots have been accused of misappropriating. But it is a start.

MAIN ISSUE

In the eyes of the electorate, therefore, the NPP government is seen as being serious in delivering on its promises as it has begun to tackle the main problem of corruption without delay and taking on some of the giants of the previous government. The charges against the two former government members will be difficult to dispute because they are based on evidence at hand, which are unregistered motor vehicles. The more complex cases involving billions, for which evidence is harder to obtain, can lead to lengthy legal procedures and eventual acquittal as has happened many times in the past when corruption cases were brought before the courts by previous governments. But the present cases are more straightforward with less likelihood of acquittal.

As a result, the opposition’s critiques of the government are not gaining traction amongst the people at this point of time. This is particularly the case with regard to the IMF agreement which was negotiated by the previous government. Another criticism being made is that it is not delivering on its election time promise to increase salaries of public servants and reduce the cost of living. However, while the people will want their economic hardships to be mitigated as soon as possible, they also realise that the government has been in power only a month and needs to pass a new budget to redistribute resources from areas of less priority to areas of high priority. Changes of tax structures will require a change in laws which is not possible at this time as parliament is dissolved.

Also, the economic promises made by the NPP need to be seen in the context of promises made by its rivals at the presidential election. These included incredible relief packages, claiming they would increase the monthly welfare payments for vulnerable groups and debt relief initiatives, such as raising allowances for disabled individuals and the extremely poor and waiving specific farmer loans, provide instant cash relief or reduce taxes significantly, creating millions of jobs and raising salaries across the board, promising higher wages for government workers and essential sectors and obtain massive foreign investment or debt relief within a short timeframe, which was unlikely given the country’s credit rating and international relations. It has now become a case of the pot calling the kettle black.

LIKELY PARTNERS

The desire for change in the overall system of corrupt governance, which was summarised as “system change” by the Aragalaya protest movement, will continue to be the campaign theme with the greatest resonance to the electorate at the forthcoming parliamentary elections. There is a likelihood that even those who did not vote for the NPP at the presidential election would now vote for the NPP as they too want a corruption-free government. On the other hand, as seen at the Elpitiya local government election last month, people also tend to vote on a sentimental basis for those they personally know or who have helped them, which would benefit former government members who have done favours at the local level. At Elpitiya, the NPP obtained 47 percent of the vote and secured half of the seats on offer but with a larger percentage voting for other parties.

The situation in those parts of the country in which the ethnic and religious minorities predominate would also make it difficult for the NPP to win the majority of seats. The NPP’s main focus of attention has previously been the majority community and the party’s top leadership is also drawn from the same ethnic and religious background. This suggests that the natural inclination of the ethnic and religious minorities will be to vote for parties championing their sectional interests rather than opt for a national party that has not worked much amongst them. However, the minorities are also disillusioned by their own political leaders and the younger generation in particular are more interested in integrating with the mainstream society and the national economy rather than to live segregated.

The conclusion from this analysis is that the government is unlikely to win a 2/3 majority that would enable it to engage in constitutional amendment by itself. But it may be able to win a simple majority, though that, too, is not given. The best case scenario for the country is if the government will need to work in partnership with the other parties that will be elected to parliament to pass new laws and to institute constitutional amendments. This will require consultation, compromise and consensus with the opposition as opined by former President Ranasinghe Premadasa. The litmus test for the opposition parties would be to cooperate with the government when it comes to enacting new laws relating to putting an end to corruption and impunity unlike in the past when corruption and impunity dominated the scene. The NPP may find its most likely partners in the ethnic and religious minority parties that have not become compromised by being in the governments of the past.

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The Voice of Australia… no Sri Lankans!

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Reuben De Melo: Major plans with the prize money

Although we do have lots of Sri Lankans, living in Australia, we haven’t heard of a Sri Lankan artiste taking the honours at some of the major competitions Down Under, except for Andrew De Silva who won the Australia’s Got Talent competition, some years ago.

The winner of the 2024 The Voice of Australia hails from Goa and no sooner Reuben De Melo’s name was announced, Goans around the world were jubilant that one of their very own had won the prestigious singing contest in Australia, after the public voted during the grand finale on Sunday.

He won a cash prize of Australian $100,000, and an all-inclusive recording package.

Reuben (31), now based in Perth, Western Australia, says that with a recording development package now in his hands, his top priority is to pursue a full-time career in the music industry “rather than having to always worry about finances.”

The father of three went on to say that the prize money is probably going to help them out with a lot of repayments, like their mortgage, and a bit of work around the house as well.

While his standout vocal performances on the series may have blown audiences away, Reuben also credits his connection with all-star coach LeAnn Rimes as a factor in his success on the show.

“Even though she’s an absolute star in this industry, she’s come down to my level and just really guided me through and empathised with me the whole time. She went above and beyond to get me over the line, and I owe a lot of stuff to her.”

Reuben De Melo performed the song ‘House Of The Rising Sun’ at the finals.

His next step, he says will be to release music with others, collaborate with other artistes, and just release music.

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