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President Rajapaksa and his 13A dilemmas

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by Rajan Philips

It was said of Prime Minister SWRD Bandaranaike that “it was a grim irony that he should be called upon, at the moment of his greatest political triumph, to articulate the strong opposition of the Sinhalese to any attempt to establish a federal constitution.” Sixty-five years later, it could be said in reverse that it is a grimmer irony for President Gotabaya Rajapaksa to be unfairlyput on the spot by his most ardent supporters and their insistent calls for abolishing the Provincial Council system, in total disregard of the realities of political and geopolitical consequences of such abolishing, not to mention the extraordinary Covid-19 challenges that he has to deal with now. The irony is to be noted because Mr. Rajapaksa was among the first to raise the call for abolishing the PCs as far back as 10 years ago, when even the mere thought of becoming Sri Lanka’s president may not have crossed his mind as an American citizen.

The PCs are not the only dilemma that President Rajapaksa has to wrestle with. He is grappling with quite a few of them. While almost all other presidential dilemmas are connected to Covid-19, the dilemma over 13A and the Provincial Councils is antecedent to Covid-19, but like everything else in Sri Lanka and elsewhere, is complicated by it. Hence the lingering question, why bother with a new constitution now? And especially for this President, whose credentials are totally those of a practical doer, and not at all the characteristics of a constitutional visionary? The answer might be that it is the ‘constitutional cabal’ that is running the constitutional show, like every other cabal running every other government show.

 

‘Sapatha’ and Overreach

The immediate cause for the abolishment calls is the apparent decision of the government, or the Prime Minister, to go ahead with the long postponed (by the Wickremesinghe-TNA-JVP threesome) elections to the currently defunct Provincial Councils, which were established under the 13th Amendment. The sources of these calls are also a classic case of multiple political tails trying to wag the country’s presidential executive and his brother prime minister. A government minister, indeed, the Minister for Public Security and the State Minister for Provincial Councils, has, in ancient Mahabharata “sapatha kara kiyanawa” style, made a solemn pledge to the members of the Civil Defence Force that he would put an end to the system of Provincial Councils. The Experts Committee tasked with preparing a draft for the new Rajapaksa constitution, is also reported to have expressed concern over holding PC elections before their draft is done and a new constitution is in place.

It is not clear if there is unanimity in the committee over this concern, or if some committee members are speaking publicly for the whole committee. There was an earlier news report that the Experts Committee took an internal vote and decided by majority on a matter that is apparently fundamental to preparing the draft constitution. That an expert committee on the constitution would take an internal vote to decide on a fundamental question without referring it to its political masters in the government (with the parliament helplessly sidelined in the whole exercise) is an extraordinary overreach. If this is any indication, even the draft constitution that the committee would likely produce (presumably by a majority vote) may turnout to be extraordinary and tendentious.

Does the matter that the committee had to vote on have anything to do the 13th Amendment? We do not know. But we know that the more powerful members of the committee are not amused by the government’s apparent decision to go ahead with PC elections. And that is some gall for a committee appointed by the country’s Head of State to publicly tell the government if or when it should conduct elections to any elected body. For now, there is more than Expert Committee amusement or gall that has been put on display. Real midweek fury against the Provincial Councils has been unleashed by Prof. GH Peiris, who is also a prominent member of the Experts Committee.

 

Facts and Fabrications

Anyone looking to get refreshed on the materially relevant historical background to the constitutional voids that were unnecessarily created in 1972 and in 1978 – and their partial filling by the 13th Amendment (in 1987) and the Provincial Councils it created, could re-read Chapter 36 in KM de Silva’s (1981) “A History of Sri Lanka.” Even its first few pages will do. My opening quote on SWRD Bandaranaike in today’s article is from page 513 of de Silva’s book, in Chapter 36: “The Triumph of Linguistic Nationalism”. The quote might suggest that the historian was having his academic tongue in his political cheek, but it reads far superior to anything that a geographer seems to be able to politically offer 40 years later. And this is not because Sri Lanka has too much history and too little geography.

Yet, no one can do worse than CA Chandraprema’s attempt to rewrite history, as he did in his hagiographic monograph, “Gota’s War.” We can anticipate versions of it to be undiplomatically broadcast from Geneva from March onward. The one thing about the history of Sri Lanka’s national question or conflict is that it is a well studied (even “over studied”, as AJ Wilson used to say) subject, and almost everyone who is of consequence either in Sri Lanka or abroad is well versed, in it and knows to discern between facts and fabrications. More than historical writings, Sri Lanka’s stubborn facts always give the fabricator’s, if not the government’s, game away. Just as it is impossible to hide a whole pumpkin in a plate of rice. Peremptorily abolishing the Provincial Council system will be one more stubborn fact that will fetch no credit for Sri Lanka.

Sri Lankans who have lived through and politically experienced the tumults and wars after 1977 need no lesson from old history, colonial, or pre-colonial. Some of us–Burghers, Muslims, Sinhalese, and Tamils rising above our ethnic strictures, happened to be involved in efforts to respond to these events within the framework of the Movement for Inter-Racial Justice and Equality (MIRJE).1983 is now considered a watershed moment in Sri Lanka’s modern history, one that is totally negative and even calamitous, and quite different from 1956 which bore both positive and negative fruits. However, 1983 had its annual forerunners. Riots broke out in 1977, after a twenty-year hiatus and within months of the UNP’s bigger than landslide election victory. For the first time, plantation Tamils were targeted in communal rioting. In 1978, the UNP used its massive majority in parliament to elevate one of its MPs, Prime Minister JR Jayewardene, as the country’s first executive president. 1979 was the year of the Emergency in Jaffna, when President Jayewardene ordered Brigadier (Bull) Weeratunga (not DIG/IGP Rudra Rajasingham) to “eliminate the menace of terrorism in all its forms from the island and more specially from the Jaffna District.” Two years later, in 1981, tea plantation districts were targeted again in the south, while off-duty policemen burnt down the Public Library in Jaffna. In 1982, President Jayewardene upended parliamentary democracy in Sri Lanka through the chicanery of a referendum. One year later, what was catastrophic became calamitous, as the Palestinians are known to say.

1983 implicated Sri Lanka not only geopolitically with India, but also internationally with practically every western country where Tamils leaving Sri Lanka found a foothold. The Sixth Amendment that was passed during the dark and difficult days of August 1983, erased the elected TULF off the political map and handed over the keys to Tamil politics to armed militants. Sarath Silva said as much in his 2005 ruling as Chief Justice, in the course of denying President Kumaratunga’s plea to stay in office a year longer.

The commonplace argument is that 13A and the Provincial Councils were foisted on Sri Lanka by India’s machinations taking advantage of an old, weak, and beleaguered President Jayewardene. While this argument might be politically potent, it is bereft of any analytical insight or credibility, and it flies in the face of events and the alignments of political forces within Sri Lanka before and after 1983. The notion that India’s role in Sri Lanka was triggered by the fury of Indira Gandhi after she was apparently scorned by JR Jayewardene is cheap table talk and should not be a serious political consideration. And in 2020 it is utterly inappropriate to speak of any woman, let alone a woman political leader and Prime Minister, being scorned, leaving aside the not uncommon misattribution to Shakespeare of the line (“Heav’n has no rage, like love to hatred turn’d, Nor hell a fury like a woman scorned”) that was satirically written by William Congreve (1670-1729) in his play, The Mourning Bride.

 

Indian Involvement and Sri Lanka’s Failure

I make no suggestion that India’s involvement, or interference, in Sri Lanka was entirely, or even primarily, motivated by neighbourly altruism. There were of course machinations, but they were mostly of the raw bureaucratic kind, thanks to the Research and Analysis Wing (RAW), India’s wannabe CIA. And whether it was Indian involvement or interference, it did not arise out of nothing and would not have transpired the way it did and to the extent it did, without compelling circumstances in Sri Lanka. The Sri Lankan political circumstances after 1977, and more so after 1983, provided both the pretext and the context for India to get involved in Sri Lanka’s internal affairs. And no one, not even India, could have anticipated that things would get ugly and totally out of control as they did over several years. It is still the sorest point among many Sinhalese that India peremptorily prevented the Sri Lankan military onslaught on the LTTE in June 1987 with its controversial air drop of food supplies in Jaffna. The contention is that were it not for this highhanded intervention, the war would have been over by and large in 1987 itself. This is debatable because the LTTE was then primarily a guerrilla organization and may have survived the onslaught to live and fight another day. It was only years later that the LTTE would build up its so called conventional fighting force and convert itself from being a fighting-fit guerrilla force to a flabby national army, and getting drunk in the process with its own myth of invincibility. And in this saga of ironies, India that initially aided and armed Tamil militant groups on the beaches of Tamil Nadu, would later preside over the disarming of every militant group bar the LTTE, engage its army in an unfinished and unsuccessful fight against the LTTE, and finally – 22 years after the infamous ‘parippu drop’ – end up aiding and assisting the government of Sri Lanka to vanquish the LTTE once and for all. It was not only the Central Government in Delhi that went through these about-turns, but also the state and government leaders in Tamil Nadu who were complicit at every step along the way. And there is no shortage among Sri Lankan Tamils who believe that the Tamils were shortchanged in the Indo-Sri Lanka Accord and the 13th Amendment, and especially by the provisions of the Provincial Councils Act that the two gave rise to.

 

As for JR Jayewardene, although his detractors among the Sinhalese may never concede this, he must have felt entitled to a little last laugh in getting India to clean up the militant mess which in his mind was mostly of India’s making. To his justifiable credit, however, he conceded in the end that India was the only external agency, and not any western country or international agency, that would help him put his Sri Lankan house in order after national politics has unravelled beyond restoration by any domestic initiative alone. This very point was well articulated in a public statement, at the time of the Indo-Sri Lanka Accord, by more than a score of left and liberal Sinhalese intellectuals, activists, and academics. I do not have the statement at hand, but suffice it to say that the anti-13A lobby is not entitled to claim exclusive monopoly over Sinhalese political thinking, then or now.

As well, the 13th Amendment is not the only controversial initiative, constitutionally or otherwise, that JR Jayewardene implemented and presided over aided by his tyrannical majority in parliament. His entire 1978 constitutional project has been controversial from the time of its inauguration. In fact, the 13th Amendment has had greater support among non-UNP Sinhalese, than the 1978 Constitution ever did. Abolishing the executive presidency has been the winning battle cry in every election from 1994, until 2019. At none of these elections, including, I believe, the 2019 and 2020 elections, did any of the main contenders for power promised to abolish the Provincial Council system.

On the contrary, Chandrika Kumaratunga and her People’s Alliance movement used Provincial Council elections to launch their campaign against and eventually oust the UNP from power after its seventeen year rule. Mahinda Rajapaksa cleverly and consistently used PC elections to consolidate his electoral fiefdom. Again, as political indicators go, the 2014 PC election in Uva signalled the people’s regime fatigue after 10 years of Rajapaksa rule and 20 years of SLFP-dominated governments. Lacking Chandrika Kumaratunga’s charisma and Mahinda Rajapaksa’s cleverness, the beleaguered yahapalanaya folk shuttered up the Provincial Councils and postponed their elections indefinitely. Their dillydallying has created the current dilemma for President Rajapaksa.

There is no dispute that the implementation of the Provincial Councils system has not turned out to be an appealing success. But this is not due to any systemic or structural shortcomings, but entirely due to the failure of political leadership. The blame for the worst leadership failure should fall squarely on the shoulders of Maithripala Sirisena and Ranil Wickremesinghe in general, and particularly on the TNA and CV Wigneswaran for what they have done and what they failed to do with the Northern Provincial Council after its first and only election in 2013.

There is no question that the PC system needs changes and reforms, regardless of when the next elections are held. And unlike any other institution in Sri Lanka, the PC system has a handbook of reform recommendations in the comprehensive symposium complied, in 2010, by the late Ranjith Amarasinghe, Asoka Gunawardena, Jayampathy Wickramaratne, and AM Navaratna-Bandara. There have been plenty of other suggestions, most recently by Austin Fernando and Nirmala Chandrahasan.

In his December 25 article in The Island, Fernando recounts that the current government includes many past champions of the PC system, including former Provincial Chief Ministers and Governors. Will they speak out now, or stay silent as the current abolishment clamour grows? The current voices of abolition have been around from the time the PCs were introduced in 1987-88. But for over 30 years they have not gotten anywhere close to influencing, or dictating to, the policy of any Sri Lankan government on the 13th Amendment and the Provincial Councils. Until now. And that is President Gotabaya Rajapaksa’s main dilemma.



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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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