by Rajan Philips
There is no political straight line from the 1971 JVP insurrection to the ongoing Rajapaksa presidency. But the sociopolitical compulsions that gave rise to it and the brutal manner of its suppression left a long shadow over everything that came after. Fifty years on, the shadow still looms and spans the remembered tragedy of 1971 and the real time farce of presidential politics in 2021. The farcical status of the presidential system came into full view last week, with the idiotic utterance of a State Minister that 6.9 million Sri Lankans directly elected “a Hitler” in 2019. And the German Ambassador had to remind Sri Lankans by tweet that Hitler should be “no role model for any politician.”
The 1971 insurrection was launched against the United Front government of the SLFP, the LSSP and the CP, elected barely an year earlier, in May 1970, on the Front’s socialist Common Program and with a landslide victory. The leaders of the LSSP and the CP soaked their pens and voices in gall in denouncing the JVP leadership for the uprising, while sympathizing with the followers who perished as cannon fodder in the misadventure.
“An infantile form of negative nihilism,” perorated Pieter Keuneman over Radio Ceylon two days after the insurrection started. Colvin R de Silva esoterically invoked Lenin, dissected Rohana Wijeweera’s own words, and condemned the insurrection as a “foredoomed Ultra-leftist adventure.” Ten years after the 1971 uprising, Hector Abhayavardhana delivered the ultimate verdict of contempt, calling it the work of “a private army (of Rohana Wijeweera) based on the marginalized” rural populations.
But for all their denunciations, the two Left Parties could not prevent the havoc the insurrection would ultimately wreak on their once powerful organizations and the formidable presence they brought to bear in national politics in spite of their electoral frustrations. Every political party in Sri Lanka was shaken by the insurrection. But the Left Parties paid the heaviest price and suffered electoral slaughter six years later, in the 1977 elections.
Insurrection as backdrop
The insurrection started even as the United Front government was preparing a new constitution to sever the island’s last ties to the British Crown and usher in a new Republic based on popular sovereignty. But because of the insurrection, the country became a Republic in 1972, while under Emergency Rule. The LSSP had invested heavily in the project of the new constitution, with Dr. Colvin R de Silva as the obvious Minister in charge. His imposing legal position was that the Ceylonese parliament did not have the power to amend or remove the “unalterable and entrenched clauses” in the Soulbury Constitution. Hence the recourse to having elected MPs constitute themselves into a constituent assembly, separate from Her Majesty’s parliament, and create a new constitution outside the fetters of the old. To create, indeed, as Dr. Colvin would colourfully describe it, “not merely despite the Queen, but in defiance of the Queen!”
The JVP insurrection both disrupted and rushed the process of constitution making. The insurrection weakened the Left and strengthened the Right in the government and in parliament. The new constitution reflected the dominance of the Right and reeked of ethno-majoritarian supremacy. It was also the constitution of the government without the broad consensus in parliament involving the opposition. Absent that broad consensus in its adoption, what was obviously the biggest democratic virtue of Colvin’s Constitution, namely its utmost flexibility including total replaceability, became its fatal weakness.
Another fatal flaw, it is fair to say with the hindsight of 50 years, was the constitutional status of the Head of State. The Head of State in the First Republic was a mere appointee of the Head of Government. Dr. Colvin R de Silva was logically and practically correct, in rejecting JR Jayewardene’s idiosyncratic advocacy for an elected president in addition to the elected parliament – because of the inherent absurdity of counterposing two elected institutions at the summit of the state.
But he (Colvin) left the door open by failing to provide in the constitution an appropriately substantial mechanism for instituting the Head of State. Both flaws played straight into the waiting hands of JR, Colvin’s good friend and old classmate. Even though it was a quirk of history and not any mass movement that had brought JR Jayewardene to that point in his long political life when he was suddenly able to do whatever he wanted to do.
The 1972 Constitution could have provided for much more than feudal appointment of the Head of State by the Prime Minister, and a lot less than the redundancy of direct election by the people that invariably came later with the Second Republic. Insofar as Parliament (the National State Assembly) was the “supreme instrument of state power” in the First Republic, an appropriate provision could have been for parliament to elect the Head of State by a plural majority from among candidates from outside parliament and satisfying whatever criteria that could have been stipulated in the constitution.
Why have one? – scoffed JR Jayewardene, if the Head of State is to be simply appointed by the Prime Minister. So, six years into the First Republic, Sri Lanka went through a second constitutional overhaul – from a parliamentary system that the JVP had ridiculed and revolted against, to a presidential system that the JVP or anyone else knew nothing about. Regardless, the JVP leaders became the early beneficiaries of the new presidency because Prime Minister-turned-President JR Jayewardene chose to pardon them and free them from jail. In President Jayewardene’s calculations, by letting the JVP out of jail and leaving them at large in the country he would be able to divide and weaken the left and opposition forces. JRJ managed to do that right through his two terms as the first Executive President.
Although the 1971 insurrection was exclusively limited to the Sinhala youth in its mobilization and operations, the insurrection had a demonstration effect among the Tamil youth. Slighted and alienated by the 1972 Constitution, and discriminated by media-wise standardization in admissions to university science programs, the Tamil youth were beginning to foray directly into politics and to them the 1971 insurrection was a demonstration that political violence in Sri Lanka was a feasible political avenue.
In a wholly different set of circumstances, both internal and external, Tamil political violence proved itself to be far more durable than that of the JVP, and took on the proportions of a civil war that dragged on for decades. It took a lot longer and more than one government, even more than one country, to finally isolate, defeat and eliminate the LTTE, the principal force of Tamil political violence. In the end, the LTTE too was militarily decimated just as the JVP had been earlier crushed by the Sri Lankan government. It is twelve years since the LTTE’s defeat, but the shadow of that defeat and the manner of its execution also looms over Sri Lanka and its politics.
With the still looming twin shadows of the JVP insurrection and the LTTE war, it is appropriate to ask the counterfactual question as to what other path, or different paths, would the course of Sri Lankan history and politics over the last 50 years have taken if the JVP leadership had not launched the insurrection in 1971. Answers to this question can be explored in two domains – the domestic and the global. The changes in the global domain over the last 50 years have been many and they are also highly significant. Sri Lanka could not have remained insular to the outside changes, and it has not.
In his address to the Criminal Justice Commission that was set up to try the accused JVP leaders, Rohana Wijeweera offered a staggering disclaimer. He both disowned responsibility for the insurrection and blamed others for precipitating it in his absence at the decision making meeting. Writing on the 50th anniversary of the insurrection, Lionel Bopage, another key JVP leader at that time, uses the insurrection as leitmotif to provide an expansive and inclusive background to the 1971 insurrection and to attach a brief peek into Sri Lanka’s descent to corrupt authoritarianism over the last four decades under the executive presidential system.
The inclusive aspect of Dr. Bopage’s recollection is in recounting the acts of discrimination by the state of Sri Lanka against the Tamil minorities in the fields of citizenship and language rights. Such a recounting was not part of the JVP’s five-lecture syllabus that preceded the April (1971) experiment in violence. To their credit, Bopage and a significant number of his former front-line comrades have taken a positive and progressive position on Sri Lanka’s national question, initially involving mostly the Tamils and now increasingly extending to the Muslims. The official JVP, on the other hand, has blown hot and cold on the national question, and the post-Wijeweera JVP even underwent a significant split in 2008 over this very question. Be that as it may.
Bopage in his anniversary article contends that the JVP’s disenchantment with the first budget of the UF government, whose campaign the JVP had supported in the 1970 parliamentary election, and the desire “to bring about the social change” the JVP was looking for, that “escalated into the April 1971 uprising.” While acknowledging, “shortcomings and mistakes were made,” Bopage argues that “the struggle was fundamentally driven by the international situation and the nature of the repression at that time.” He accounts that “under the international and national circumstances … in the 1960s, 51 countries in Africa, North, Central and South America, Asia and Europe had pro-US dictatorships established. The genocidal nature of such intervention was clearly evident in Indonesia.” And the world situation was such that “all the alternative left groups at the time heavily believed on the path of armed struggle.” How did any or all of this apply to the JVP and to Sri Lanka in 1971?
The late 1960s, the formative years of the JVP, were indeed years of youth protests in many countries world-wide. Often, these protests targeted military and bureaucratic establishments, or they were protests against wars, such as in Vietnam, or against apartheid in South Africa. But unlike in Pakistan, closer home, where students led the revolt that finally brought down Ayub Khan after more than a decade in power, there was no political cause celebre in Sri Lanka that warranted an armed uprising. There was no dictatorship in Sri Lanka in 1971. The only time Sri Lanka ever came close to a military putsch was in 1962, and that too was aborted without a shot being fired, due in no small measure to the social and kinship sinews that crisscross institutional boundaries within the state structure.
One unnecessary outcome of the 1962 coup was the ‘religious and ethnic cleansing’ within the armed forces, that would create its own problems later when Tamil militants took to arms. Otherwise, given Sri Lanka’s size and limited social stratifications, the familial and kinship ties provide a powerful social bulwark against the armed forces encroaching on the political terrain. On the other hand, it was the JVP’s insurrections and the LTTE’s war that pulled the army out of the barracks to the streets and jungles almost as a permanent fact of life.
That all of this had to begin and solidify under a government that included the LSSP and the CP was the worst unintended travesty of the 1971 uprising. Both parties had been persistent opponents of the use of Emergency Rule and the deployment of armed forces against the people. In 1956, the LSSP even called for the disbanding of the army because there were no external enemies. Prime Minister Bandaranaike jokingly responded that he was not going to give the LSSP its revolution on a platter. More to the point, the government that the JVP revolted against in 1971 was a democratically elected government with wide popularity. It was not planning any auto-dictatorship. Its only representational deficit was on account of the minorities. It was a significant deficit but that was not one of JVP’s priorities at that time.
The LSSP as was its wont, saw the emergence of the JVP as “one of the more important by products of the breakdown of Stalinism on the international scale.” If the Lumumba university background of Rohana Wijeweera lent credence to this assessment, the assessment made sense insofar as international socialism was still a viable project. It was so at that time and for more than a decade later. That was the external premise to the JVP’s internal adventure in 1971. But the global situation began to change fundamentally by the time the JVP leaders were freed from jail after 1977. Its biggest local manifestation was the incorporation of Sri Lanka into the global open economy. Politics would not be the same, either nationally or internationally.
(To be continued in three more parts: JVP’s Second Coming and India’s Peace Keeping by Force; JVP partaking in governments; Executive Power and Political Emptiness).
Devolution under 13A
by Neville Ladduwahetty
(This is an updated version of an article which first appeared in The Island on 16 March 2009. It is republished because of its relevance to the intention of the current government to implement the13th Amendment fully.
The defeat of the LTTE is not expected to bring a closure to Sri Lanka’s national question. It would, however, create the space for the evolution of a political solution, free of threat and intimidation. It would also create the space for the government to totally focus on issues, relating to resettlement, rehabilitation and development. Public opinion is that both issues need to be addressed, concurrently, if the military gains are to be consolidated.
The emphasis of the International Community has been on a political solution that addresses the concerns of all communities. While endorsing this view, India has been particular that such a solution should be based on the concept of devolution, as contained in the 13th Amendment, and, if necessary, beyond. These readings have influenced the deliberations of the All Party Repesentative Committee (APRC). Consequently, the approach of the APRC has been to evolve a new and, in their view, an improved version of the Provincial Council system, under the 13th Amendment.
After experiencing the functioning of the Provincial Council system, for two decades, consensus is that its costs outweigh the benefits. Irrespective of the explanations for its below expected performance, it would be worth the cost if it served its intended purpose of addressing the concerns of all the communities. Since Law and Order affects all members of all communities, it would be appropriate to assess whether the current provisions in the 13th Amendment would assure fairness and impartiality in its dealings with the Provincial Police Commissions.
Provincial Police Commission (PPC)
Appendix I of the Provincial Council List (List I of the Ninth Schedule of the 13th Amendment) describes the devolved powers, relating to Law and Order.
According to Clause 4, the PPC is to consist of three members: the D.I.G of the Province, a person nominated by the Public Service Commission, in consultation with the President, and a nominee of the Chief Minister of the Province.
Clause 6 states: “The I.G.P shall appoint the D.I.G. for each Province, with the concurrence of the Chief Minister of the Province. However, where there is no agreement between the Inspector General of Police and the Chief Minister, the matter will be referred to the President, who, after due consultation with the Chief Minister, shall make the appointment.”
Clause 11.1 states: “The D.I.G. shall be responsible to and under the control of the Chief Minister thereof in respect of the maintenance of public order in the Province…”.
Thus, in addition to the D.I.G. being under the control of the Chief Minister, two out of two members of the PPC would in all likelihood have political affiliations which would make them lean towards the “interests” of the Chief Minister. To expect fairness and impartiality under such provisions is to be naïve. In the real world, the tendency for the PPC, as presently constituted, would be to encourage a high degree of partiality in favour of the Chief Minister’s interests, not to mention the interests of his/her loyalists, as well. While attempts are being made to depoliticize Presidential powers, through the 17th Amendment, and Independent Police Commission, provisions in the 13th Amendment would not deter the politicization of issues relating to Law and Order. This is a serious anomaly that needs to be corrected. However, the task is a daunting one because of the inbuilt procedural labyrinth.
Amendments to the 13th Amendment
Any amendment to provisions in the 13th Amendment requires conformance to the procedures set out in Article 154G:
“Every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province for which it is established, with respect to any matter set out in List 1…”
No Bill for the amendment or repeal of the provisions of this Chapter or the Ninth Schedule shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed in the Order paper of Parliament, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference, and –
where every such Council agrees to the amendment or repeal, such Bill is passed by a majority of the Members of Parliament present and voting; or
(b)where one or more Councils do not agree to the amendment
or repel such Bill is passed by the special majority required by Article 82.
According to the mentioned procedure, it is unlikely that a President would initiate action unless there is a public demand. This would mean that the public would have to organize themselves to give expression to such a demand. Assuming a President is convinced that an amendment is needed, the process involves drafting appropriate legislation, Gazetting it, and then circulating it to the Provincial Councils for comment. If even one out of the nine Councils objects, a 2/3 majority of the Parliament would be needed before it could become law.
Since no Provincial Council would agree to relinquish the advantages it possesses, under current provisions, as regards the composition of the PPC, one can be certain that any amendment in respect of Law and Order would require a “special majority”, meaning 2/3 of those present in Parliament voting for the amendment. The fact that it is near impossible to secure a 2/3 majority, under the proportionate representation scheme, is a fact that has to recognized and accepted. Furthermore, in the course of his determination, Justice Wanasundara stated: “Factually speaking, even the President has said recently that under the proportionate scheme, no political party would be able to secure anything more than a bare majority in the future” (Supreme Court case on The 13th Amendment to the Constitution, 1987, p. 347).
Thus, the reality is that the public may not succeed in securing the needed 2/3 majority to redress a provision that has the potential to seriously undermine its right to equality before the law when it comes to provincial matters. In such an eventuality, would not the sovereignty of the People be compromised? As stated by Justices L.H. de Alwis and H.A.G. de Silva, in their determinations: “Article 154G (2) therefore imposes a fetter on the Parliament in amending or repealing Chapter XVIIA or the Ninth Schedule and thereby abridges the Sovereignty of the People in the exercise of its legislative power by Parliament, in contravention of Article 3 and 4(a) of the Constitution” (Ibid.).
The determination of the Chief Justice and three other Justices, however, were: “…the legislative competence is not exclusive in character and is subordinate to that of Central Parliament which in terms of Article 154G (2) and 154G (3) can, by following the procedure set out therein, override the Provincial Councils. Article 154G conserves the sovereignty of Parliament in the legislative field…In our view 154G (2) and (3) do not limit the sovereign powers of Parliament. They only impose procedural restraints” (Ibid., p. 320).
There is no doubt whatsoever that “procedural constraints” imposed by 13A is a fetter to the unrestrained Legislative powers of Parliament that existed under Article 4 (a) and since Article 4 must be read with Article 3 these procedural constraints violate the sovereignty of the People whenever Parliament is unable to muster the 2/3 majority needed to amend any provision in 13A.
RECENTLY, SCOTLAND’S GENDER RECOGNITION REFORM BILL WAS VETOED BY THE U.K. GOVERNMENT BY USING SECTION 35 OF THE SCOTLAND ACT, THUS ENDORSING THE SUPREMACY OF THE U.K. PARLIAMENT OVER THAT OF SCOTLAND. THIS WAS POSSIBLE BECAUSE “PROCEDURAL RESTRAINTS”, SUCH AS THOSE THAT EXIST UNDER 13A, DO NOT EXIST UNDER DEVOLUTION IN the U.K.
Issues addressed thus far relate to amendments and repeals. 154G (3) relate to Bills in respect of any matter. Here, too, the President has to Gazette the Bill and circulate it to all Provincial Councils. If all Councils agree, the Bill is passed with a simple majority. If some disagree, a 2/3 majority is required for the Bill to become Law. On the other hand, if only some agree and only a simple Parliamentary majority is possible, the Bill would apply only to those Provincial Councils that agreed with the Bill. Would this not foster asymmetrical devolution? If one or more Provincial Councils call upon Parliament to make law on any matter, the passage of such a law, by a simple majority, would apply only to those Councils making the request. This too would foster asymmetrical devolution.
The Government is under pressure to implement the full provisions of the 13th Amendment. If Police powers, as required by the 13th Amendment, are devolved, the Law and Order situation in the country would be politicized far beyond what exists today.
Provisions, relating to Law and Order, as stated in Appendix 1 of List 1 of the 13th Amendment, was introduced in 1987. On the other hand, the need for an Independent Police Commission was introduced decades later in order to depoliticize Law and Order. Since Law and Order is central to Justice and overall security, the contradictions that exist between them need to be amended, along with the repeal of 154 G, because it is the only way the sovereignty of the People and the legislative powers of Parliament would be restored, prior to the full implementation of the 13th Amendment.
Such measures are justified because they are a byproduct of a political intervention by India, following the Indo-Lanka Accord. Real independence and the right of true self-determination require that all Sri Lankans are governed by Laws of their own making and not by what is imposed. Therefore, the Government has a moral obligation to its People to create the necessary conditions to protect the sovereignty of the People and the unfettered legislative powers of Parliament, encouraged by Section 35 of the U.K. Scotland Act.
Govt. actions must be for people’s benefit
By Jehan Perera
The government celebrated the 75th Anniversary of its independence from colonial rule under tight security. President Ranil Wickremesinghe did not even deliver a speech on the occasion. He had an excellent written speech, but chose not to deliver it for reasons not known. The speech was circulated later. The exclusion of the general public from the parade grounds was another notable feature of the Independence Day event. Under normal circumstances, Galle Face green where the celebration took place, is packed with people who come to enjoy the sea, the fresh air and the vast expanse of greenery. The spectacle of a military parade and an air show provided an occasion that people would not have wished to miss if they had been given the chance to attend it. But the government was clearly insecure and wanted to make sure it controlled the situation, which accounted for large security deployments.
The general public were kept away from the celebrations as the government feared that if they were permitted into the area some of them might protest. Indeed, the previous night a sit down public protest (satyagraha) organised by a mostly youthful group of protestors was water cannoned and forcibly broken up. The youth were protesting against the misallocation of resources for celebration at a time when the country’s people have little cause to celebrate. Although there was a large presence of security forces, they stood by when a group of political thugs attacked the peaceful protestors. When the satyagrahis resisted the attack they were chased, beaten and arrested by the security forces. The government was less concerned to win the hearts and minds of its people than to conduct its Independence Day event without disturbance.
Ironically, the manner of the celebration, with the general public not present at the site of celebration, and security forces out in strength on the roads, was reminiscent of the days of war that the country experienced decades past. In those days too, the Independence Day celebrations took place under tight security, with the people preferring to stay in their homes than to brave possible LTTE bombs. This throwback to the past is relevant as those years of war have contributed in no small measure to the economic collapse that has befallen the country and blighted the life of its people. More than 70 percent of the population have reduced their food intake and 40 percent of the population have descended below the poverty line. In recognition of the connection between ethnic conflict and economic underdevelopment, President Wickremesinghe has prioritized a political solution to the ethnic conflict without delay.
The public protests against the celebration of Independence Day was not only in Colombo but also in other parts of the country, most notably in the north of the country. The main Tamil political party as well as smaller ones also called for a boycott of the Independence Day events and did not participate in them. University students in Jaffna declared a hartal and flew black flags. Most of the people, however, showed no interest either way. There was no display of national flags in a spontaneous manner nor did the government make such an appeal. It seemed as if the government was celebrating Independence Day for itself. Gleaming new vehicles with police escorts drove in assorted governors, ministers and other dignitaries into the stalls where they would seat themselves with all the national television stations focusing on them. However, to the general public watching the celebrations on their television sets, the sight of the luxury vehicles bearing the dignitaries would have been infuriating.
Not even a year ago, these same political leaders were hiding in the face of the protest movement that took to the streets in the aftermath of the collapse of the national economy and declaration of national bankruptcy. The general public, many of whom had never taken part in public protests, came to the streets to protest. They came from near and far, children with their parents, the elderly and the differently abled, to demand the exit of the government leaders who had stolen the wealth of the country and brought the masses of people, including them all, to near penury. These same people who watched the Independence Day events on television would have been greatly angered to see those same political leaders now disembarking from luxury vehicles while they scraped the bottom of the barrel in their homes. What they demand from the government, both in street protests and in their homes, is an end to impunity for corruption, abuse of power and extravagance in public life, which the government appears to be shying away from.
The question arises for whose benefit was Independence Day celebrated in this manner? Independence Day in a situation of economic collapse was celebrated in a most unimaginative manner. The government tried to heed the public opprobrium regarding the cost of the event, and reduced the size of the military parade. It also axed the cultural parades that represent the aesthetic side of life. Independence Day should have been celebrated differently, not for the political leaders and not for the international community, but for the people. This event did not receive much international publicity. It would not have changed the way the world sees us. It did not touch the hearts of the Sri Lankan people either. They were watching on their television sets and conscious of the expenditures that were being incurred for no good reason, and certainly not for their benefit.
The celebration of Independence Day could have been done differently. The government could have recognised the poverty that has ravaged the lives of the people. It could have organised an Independence Day event that demonstrated an ethos of care for the people. It could have brought a thousand schoolchildren from the poorest families around the country, and from all ethnicities, religions and castes, and made them a symbolic presentation of schoolbooks and school clothes that would have reflected the government’s commitment to invest in the country’s children. This was an opportunity lost and would work to the detriment of the government which will be reflected in its electoral performance at the forthcoming local government elections. President Wickremesinghe’s pitch that the country needed a plan to become a developed country in 2048 is to miss people’s concerns to get by the day. In his televised speech to the nation he said “Let us devote ourselves, unite as children of one mother. Let us make our country one of the most developed in the world by 2048, when we will celebrate 100 years of independence.”
Despite all the criticism of the priorities of President WIckremesinghe and the government there are still many who continue to place their hope that the president will succeed in problem solving that is in the national interest. One of President Wickremesinghe’s bold pledges has been to resolve the ethnic conflict that gave rise to three decades of war and to reach a situation of national reconciliation in this 75th year of Independence and “unite as children of one mother”. When he first committed himself to this task three-months ago, there was some anticipation that this ambitious task may even occur prior to Independence Day itself, or “mission accomplished” would be announced on the auspicious day. This has not been the case and it appears that even the first steps are yet to be made. Now the focus of attention will be the president’s policy statement on February 8 when he reconvenes parliament following its prorogation by him a fortnight ago.
National reconciliation in an ethnically divided society is never an easy proposition. It requires the support of multiple actors in multiple sectors. An indication of the president’s determination in this regard was the singing of the national anthem in both Sinhala and Tamil languages at the Independence Day event. This was after a lapse of four years and reflects the president’s resolve to overcome the divisions of the past. It must be noted that it was under his leadership as prime minister in the period 2015-19 that the national anthem was sung again in Tamil on Independence Day after the passage of many decades. There are elements in the president and his government that require support from civil society. We need to overcome the legacy of past mistakes and forge ahead to a future in which lessons have been learnt and mistakes not repeated.
Issues in fully implementing the 13th Amendment – Police Powers
By C. A. Chandraprema
While most provisions of the 13th Amendment to the Constitution have been implemented, sticking points have persisted with regard to two matters – the devolution of police and land powers. Appendix I of the Provincial Councils List in the Ninth Schedule of the Constitution provides for the devolution of police powers. The implementation of these provisions will entail the division of the Sri Lanka Police Force into a National Police Division which includes special units such as the CID; and a Provincial Police Division for each Province, headed by a DIG.
According to Section 6 of Appendix 1, the IGP shall appoint a DIG for each Province with the concurrence of the Chief Minister of the Province. If there is no agreement between the IGP and the Chief Minister, the matter will be referred to the National Police Commission, which after due consultations with the Chief Minister shall make the appointment. Thus, the effective appointing authority of the provincial DIG is the Chief Minister. Section 11 stipulates that all Police Officers, serving in units of the National Division and Provincial Divisions, in any Province, shall function under the direction and control of the provincial DIG who, in turn, will ‘be responsible to’ and ‘under the control of’ the Chief Minister in respect of the maintenance of public order and the exercise of police powers in the Province.
According to section 12.1, it is the Provincial police forces that will maintain law and order and be responsible for the prevention, detection and investigation of all offences in the Province except for the 11 specified offences allocated to the National Police Division which are as follows: international crimes, offences against the State, offences relating to the armed services, offences relating to elections, currency and government stamps, offences against the President, Ministers, MPs public officials, judges, etc., offences relating to state property, offences prejudicial to national security, offences under any law relating to any matter in the national government list and offences in respect of which courts in more than one province have jurisdiction. Most of these offences are not really a part of day to day police functions and occur infrequently. Thus, under the 13A, it is the Provincial Divisions which will handle the bulk of actual day to day police work.
Provincial Police to the forefront
Signifying the extent to which the National Police Division will be expected take a back seat, Section 10.1 of Appendix 1 requires members of the National Police Division to ordinarily be in plain clothes, except when performing duties in respect of the maintenance of public order. For all practical purposes, the only uniformed police force, visible to the public, will be the Provincial Police. Recruitment to the National Police Division is to be done by the National Police Commission and to the Provincial Police Divisions by the respective Provincial Police Commissions. According to Section 4, the Provincial Police Commissions will be made up of a) the Provincial DIG, b) a person nominated by the Public Service Commission, in consultation with the President; and c) a nominee of the Chief Minister of the Province. Thus the Chief Minister has complete control over both the Provincial Police Chief as well as the Provincial Police Commission.
In addition to the above, according to Sections 7 and 8 of Appendix 1, the Provincial Police Commissions, which are completely under the sway of the Chief Minister, will have a say in deciding on the cadre and salaries and even the type and quantity of firearms and ammunition used by the Provincial Police forces. However, the potentially horrendous implications of Sections 7 and 8 are mitigated to some extent by the proviso that ‘uniform standards and principles’ shall be applied across the board with regard to these matters for all Provincial Police Divisions.
When recruitment for the Provincial Police Forces are to be carried out by Provincial Police Commissions which are completely under the sway of the Chief Ministers of the Province, the politics of the Province will become the politics of the Provincial Police force, as well. The most obvious foreseeable result of recruiting, within the Province for the Provincial Police force, is that the Northern Province Police force will be predominantly Tamil, the Eastern Province police force largely Tamil and Muslim, and the police forces of all other Provinces, predominantly Sinhala. The implications of politicians, elected on communalistic political platforms, having armed police forces under their control, to further their political objectives, should be clear to anybody. For a country like Sri Lanka which has experienced protracted conflict between ethnic and religious groups, the police powers provisions in the 13A are a guaranteed recipe for disaster.
An equally important consideration is the fact that crime prevention, detection and investigation is very much an inter-provincial, countrywide activity in this country. The creation of nine separate Provincial Police Divisions, answering to nine different lines of command, will seriously hamper the crime fighting capacity of the police which we now take for granted. Today, the IGP and the police force, under him, acts on the imprimatur of the national government, and its outreach extends to every nook and corner of the country. If the 13th Amendment is fully implemented, and the principle day to day police functions, such as maintaining law and order, and crime fighting, becomes the exclusive preserve of the various Provincial Police forces, whose authority does not extend beyond the borders of their Provinces, even pursuing a criminal across Provincial borders will become a tedious, process heavy with bureaucratic procedures and the entire country is going to suffer as a result. (The Colombo and Kotte city limits will not belong to the Western provincial police division but to a Metropolitan police under the National Division according to Item 1 on the Provincial Councils List.)
Readers may recall the 2005 incident during the ceasefire where some policemen, attached to the National Child Protection Authority went into an LTTE held area in search of a fugitive European pedophile and were arrested by the LTTE police. If the police powers in the 13A are fully implemented, in a context where some Provincial administrations are going to be openly hostile to the national government, as well as to other Provincial administrations, similar incidents will become day to day occurrences. The sheer practical impossibility of effectively carrying out police work in a small, densely populated country divided into nine separate police jurisdictions, manned by police forces under nine different lines of command was one of the main reasons why the police powers in the 13A have remained unimplemented for the past 37 years.
Political control over Provincial Police forces
While the IGP will nominally remain the head of the Sri Lanka Police force, even under the 13A, actual day to day police work will become the preserve of the provincial DIGs, acting under the direction and control of the respective Chief Ministers. Under Section 12.4(b) of Appendix 1, the IGP’s discretion in matters related to crime fighting will largely be centered on assigning investigations to units of the national division, like the CID, if he believes that is required in the public interest. But even to do that, he will need to ‘consult’ the Chief Minister of the Province and to have the approval of the Attorney General. Appendix 1 does not have provisions for any mechanism to enable the Provincial Police forces to work in unison in crime fighting or indeed any mechanism that can respond expeditiously to crime fighting requirements throughout the country.
The 13A was passed into law nearly four decades ago, in a different era. In the new millennium, the dominant trend has been to prevent politicians from influencing the police force but the provisions in the 13A seeks to do exactly the opposite.
Even though the new millennium has seen three Constitutional Amendments, (the 17th, 19th and 21st) promulgated for (among other things) the depoliticisation of the police force, Appendix 1 of the Provincial Councils List in the Ninth Schedule of the Constitution, was left largely untouched. I use the word ‘largely’, because the 17th Amendment did make a few changes in Appendix 1, but that was only to reduce the powers of the President. The Chief Minister’s powers over the Provincial Police remained untouched.
The total and complete politicisation of the police force, envisaged in the 13A, renders it out of step with the times. It was just a few months ago that the 21st Amendment to the Constitution was passed and under its provisions, the President cannot appoint the IGP unless the Constitutional Council approves his recommended candidate and the President cannot appoint the Chairman and Members of the National Police Commission except on the recommendations of the Constitutional Council.
How will the people of this country react if the police powers, envisaged in the 13A, are implemented, and they wake up one morning to find that the Chief Ministers have been given effective control over the appointment of the provincial DIGs and complete control of the Provincial Police Commissions?
How will the people react when they find that the country has been rendered ungovernable overnight because the police force has been fragmented into nine separate police forces, under nine different chains of command? The gestation period for the fallout resulting from a wrong decision with regard to the police powers laid out in the 13A will not be years or months but weeks and days. Hence this is an area where the government will have to proceed with great caution.
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