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Police Powers under 13th Amendment  
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DEVOLUTION OF POLICE POWERS TO PROVINCES: SOME CONCERNS

By Gamini Gunawardane, Rtd. Senior Deputy Inspector General of Police in Sri Lanka

Few weeks ago, Mr. Udaya Gammanpila, in an article to the Divaina, had expressed his reservations regarding the prospect of giving police powers to the Northern and Eastern Provincial councils under the 13th Amendment. Those were mainly on political implications. The purpose of this article is to raise some issues regarding some policing problems that may arise in devolving police powers not only to these two provinces, but to all the provinces.

There was no occasion for a proper in-depth discussion on this aspect in the past since there was no real attempt to give effect to the devolution of police powers to the provinces since the passage of the 13th Amendment as, probably advisedly, Mr. J.R. Jayawardane and all his successors upto now, did not venture into giving effect to this provision. Now that such a prospect is being actively discussed, this may be the appropriate time to look at these issues.   

The first is basically a conceptual issue. That is, under a unitary constitution, is it  conceptually possible to devolve the function of internal security and maintenance of law and order, to Chief Ministers?

Let me explain.

Law and order and internal security in the country are a fundamental pre-condition necessary for all other activities. Economic, political, social and cultural activity could take place in a community only in a secure environment. For that matter, even the basics of life, food. clothing and shelter could be enjoyed by a person only if one could have them in a secure environment. Thus, maintenance of law and order becomes a fundamental responsibility of governance. That may be the reason why the subject of defence and internal security, is a subject that is kept directly under the President and earlier, under the Prime Minister, under the previous constitutions. It is thus a basic/core responsibility of the head of state, in governance. Therefore, it could be construed as an ‘inalienable’ responsibility.

This means a question of accountability, for the preservation of law and order in the country lies on the government and more specifically, on the Head of State. He is primarily accountable to the people of the whole country for peace, law and order. Hence, is it practical or legitimately possible for him to devolve this accountability to some others who are not accountable to him? Thus, could it be a devolvable subject? 

The question is, how can he be accountable for a responsibility that is passed on to

somebody who is independent of him and over whom he has no effective or direct  control?

On the other hand, control of law and order function from the center may well be the very essence of a unitary concept. It may well be an essential characteristic of a unitary concept. In fact, it may be one of the very purposes of the unitary concept.     

Perhaps, this is a matter that could be addressed by constitutional experts. 

The problem does not end here. We have to also examine the responsibility of the IGP, the Head of the Police in the country, in this light. Under this Amendment, is he responsible for the policing of the whole country? Or is he responsible for the non devolved subjects of policing only? If so, through whom does the President exercise his responsibility and accountability for the other aspects of law and order, especially at the territorial level? This question becomes pertinent because, the DIG of the province is held ‘responsible to and under the control of’, the Chief Minister(Sec.11:1). The Defence Minister / Minister of Internal Security will have 9 Territorial DIGs to deal with who are not directly accountable to him through the IGP. The IGP and his HQ. DIGs and Directors will be mere service providers. Thus, the chain of command becomes unclear. This is very dangerous when it comes to critical situations. 

According to sec 2 of Appendix 1.of the 13th Amendment, The IGP remains the head of the Sri Lanka Police Force; but his Police Force is now divided into two Divisions viz.,

(a) National Division, (b) Provincial Divisions. The IGP has the power to appoint the DIG to head the Provincial Police, but that too with the concurrence of the Chief Minister. The DIG however is accountable to the Chief Minister. Not only that, he will also be under the control of the chef Minister. Now where is the Territorial Command of the IGP? What is he responsible for, beyond the appointment of the DIG whom he cannot remove without the Chief Minister’s concurrence? Even if he continues to have countrywide responsibility, what is his mechanism to exercise such authority? 

One could imagine how serious the implication of this situation could become if the DIG starts ‘playing ball’ with the Chief Minister; if they start scratching each others backs. We saw a glimpse of this somewhere in the late ‘80s or early ‘90s where the DIG of the Southern Province became so intimate with the Chief Minister that the DIG obtained overseas’ leave from the Chief Minister and left to Australia to spend a holiday!

There was nothing that the IGP could do from his Police Head Quarters. This incident pinpoints the crux of the problem. What controls does the IGP have over his Provincial DIGs who are under the control of the Chief Ministers? He will thus be made to look a fool.      

This situation becomes further complicated when the Chief Minister happens to be a member of a political party that is different to that of the President / Minister of Defence/ Internal Security. If the hostility between the government party and the opposition party becomes acute, the Chief Minister could make things difficult to the Defence Minister in so many ways, to make him appear ineffective. This is seen happening in so many other spheres too. For instance, during the last UNP government times, some of the provincial transport ministries were not co-operating with the Central Transport Authority on the implementation of policy in relation to the private buses, obviously to create dissatisfaction of the commuters towards the central government. Similarly, there are so many instances where the provincial hospitals do not get medical supplies on time so that the provincial government falls into disrepute with the people. This is probably done with a view to impress on the people why it is necessary to elect to the provincial government, candidates of the political party that was currently in power at the center. But, security is so critical to human life that it cannot be left to petty politicking by politicians of the center and the periphery. 

This brings us to a more serious problem. The Chief Minister is a local politician. Though it is true, as the theory goes, he being a man of the area is more sensitive to the needs of the people, for the same reason he could have vested interests closer home. He could easily get involved in more parochial issues. In such a situation, if the DIG and the Chief Minister would become a duo, scratching each other’s backs, the people will be much worse off than now. I am thinking of the allegations of land grabbing, sand mining, organized gem mining and timber racketeering that is being made against local politicians and police officers. The other end of the spectrum is that, under the unitary police structure, the IG’s Central Vice Squad could strike anywhere in the country without the concurrence of the Chief Minister or any politician for that matter. Often, it could be that the miscreant was the chief campaign financier of the Chief Minister himself. Thus, however corrupt it may be at present, the fact that the DIG is a part of the central police chain of command reporting through the Inspector General to the Defence Ministry which is away from the local situation, enables some degree of space needed for objectivity, which is a core necessity in the enforcement of the law. This is a far more satisfactory arrangement that should not be lost. This could be a form of check and balance between the central and provincial governments. In fact, it was common knowledge among police officers that people in Jaffna in the olden days, preferred a Sinhala police officers to inquire into their complaints because they were not involved in the local parochial issues. 

Conversely, among some of my best officers were Tamils, Muslims and Malays by birth. I immediately recall Inspector Bastianpillai, SI prambalam and Sgt. Balasinham who were the first CID team to be killed by the LTTE in the Madhu jungles, off Mannar. I think, they were three jewels of the CID. Their loyalty to the CID and devotion to duty was par excellence. All these people asked nothing more than fair play. What is obtaining today is political patronage, favours and punishments.  My concern is that fair play will be made a further far cry in the proposed climate both for police officers as well as for  the people.        

This problem has been highlighted in a study on the Indian State Police too. In the case of the Indian situation one would imagine to be not so bad because any Indian state is several times larger than entire Sri Lanka both geographically and in terms of population. Yet, one could not forget how the IGP of Tamil Nadu behaved under Chief Minister M.G. Ramachandran whenever his police arrested Sri Lankan Terrorists. He was virtually a lump of clay in the hands of the Chief Minister. They eventually paid the price for this when they suffered the ignominy of loosing their one time Prime Minister to the same people whom they so nurtured. One could then imagine how grave the problems could become in a micro situation here, where every body knows every body else. Thus, in the final analysis, People will be worse off. Strangely, in Public Policy Planning in this country, People are the last concern, if at all! 

Talking of the People, in fact, did any body consult the People who are the voters whether they ever wanted devolution of police powers to the Chief Ministers or not? If consulted, it is highly unlikely that any law abiding citizen would want a puppet DIG of a politicized provincial police who took orders from the Chief Minister, to guide their destinies. The kassippu dealers, illicit gem miners, sand miners, timber racketeers and drug dealers and their ilk certainly would. It is bad enough already that even under a unitary system the STF is removed from the Batticaloa District on the eve of an election and against the peoples’ wishes. The Head is also changed on the grounds that he, a specialized officer, on the pretext that he had been too long in that organization. The same Police Commission, who stopped the transfer of some other officers out of the Eastern Province because it is on the eve of the elections, does not see anything wrong in moving out the STF and its Head. And, lo and behold, no sooner than the STF chief was replaced, the STF flounders with the security of a Minister, to end up in disaster. It is hoped that it was only a coincidence and not the outcome of a bad decision. But it remains a simple Management principle that you don’t change riders while on the run, unless there are compelling reasons. This also shows how critical such decisions are. One could then imagine how much worse law and order maintenance would become under a provincial set up. 

Again, there is the problem of parochial considerations in a small community within a province where invariably everyone knows everyone else and sometimes distantly related too. All these factors go to defeat the purpose of impartiality that all these measures are expected to bring about. 

I will now give an instance to illustrate my point. Long years ago, when I was a young ASP, a sub-inspector in charge of a police station in my district was interdicted and charge sheeted for assaulting a villager who came to him to make a complaint. Such disciplinary inquiries are held in the Police Department before a panel consisting of the inquiring officer, another police officer and a respected member of the public, to look after the interest of the complainant and of course, to ensure fair play. At the end of the inquiry, the inquiring officer and the other police officer decided to find the SI guilty; but the gentleman from the public hotly disagreed. This was not because he had been bribed by the SI but because he had been approached with a sheaf of betel ! Anyhow, the two police officers found him guilty with the gentlemen disagreeing. On the strength of this, the SI’s appeal to the PSC was upheld and he was re-instated. And the first thing that the SI did was to don his uniform, get on his motor cycle and do full round in his former police area. He stopped opposite the complainant’s house, hooted at him saying “Ado, Umba Kolaada mata?” (“Hey, what could you do to me?”)  I felt sad for the complaint for the double injustice he suffered. This is what proximity and familiarity could to impartiality. 

Needless to say that in a local situation, when one is deciding the fate of the local police officers, affecting their life and career, the kind of power and influence a member of the Provincial Police Commission would wield, and Disraeli’s famous saying “power corrupts” etc. etc. 

Nonetheless, it may be that Mr. J.R. Jayawardene, who was responsible to introduce this Pandora’s Box of the 13th Amendment, under Indian pressure of course, himself saw this danger of excessive local parochial interest which may come into play. He probably intended to reduce this ill effect when he always made it a point to appoint a person from outside the province, as Governor. But, as he himself would have noted, that was of little help as most of the power lay with the Chief Minister.     

The 13th Amendment provides for a Provincial Police Commission (Appendix I, sec. 4.)  . It will be a body of 3 persons comprising 1. The DIG of the Province, 2.A nominee from the PSC appointed in consultation with the President and, 3. A nominee of the Chief Minister. A hard nosed police officer who has seen this drama enough and more, would remark “ Naduth pansale, baduth pansale! ( The judge & the complainant are the same)-“emo judex in causa sua”. The DIG now serves in this appellate body, judging his own case. Besides, the DIG, here is a person appointed in consultation with the Chief Minister.The PSC nominee too is appointed in consultation with the President. He would invariably be a retired senior public servant resident in the province. The 3rd Member is a nominee of the Chief Minister. They are the people who will decide the transfers, promotions and disciplinary control up to the SSP !  Imagine the DIG who has become an acolyte of the CM, the PSC nominee who is an acolyte of the President and another nominee of the CM sitting in judgement! My old driver orderly would remark “ Nariyata bokka hodanta dunna wage, neda sir?(  This is  untranslatable.)    

Now what kind if justice would the Police officers and the people get in return? 

My belief is that, it is our obligation to hand over this country to the next generation, in a better condition than was handed over to us by our predecessors. We have no business to it hand over in a worse condition.   

Another provision in the 13th Amendment is that, in the matter of a major public disorder or a break down of law & order, the central government could intervene only with the consent of the Chief Minister.(Appendix I sec. 11.1. (b) ) What if the chief Minister would not consent? Judging by the petty minded conduct of today’s politicians, it is not an impossibility. It could be that the chief Minister himself or his supporters could well be behind the break down of law & order. One is reminded of what happened in the local government elections in Wayamba sometime ago. Will the local DIG or the SSP dare pull down the election posters & cutouts of the chief minister or his cohorts?      

Even if none of these conditions prevail, how long would it take for the central government to intervene and restore order? Here is an example of how efficient it could be under a centralized policing system in this country. In the year 1981or 82 a serious conflict erupted in Galle between the Muslims and the Sinhalese. No sooner than the violence broke out, I who was in Colombo being thrown out of Galle, courtesy the then District Minister, was given just half an hour to go back to Galle and restore order. I left my breakfast halfway and rushed. Almost at the time I reached Galle, Several Ministers and the Secretary Defence arrived there by helicopter and proceeded to the Galle Kachcheri for an emergency meeting. While at the meeting we could see through the windows,  Galle Bazaar going up in flames and the meeting was abandoned. The big wigs beat a hasty retreat after taking a look at the mayhem, leaving me the SSP to handle their baby. I asked the Defence Ministry for fire engines from the Colombo Municipality, which was then an unprecedented step. By evening the fire engines were at work. I requested IGP to give back some of my men who were earlier thrown to different places, who knew all the miscreants in the city like the back of their palm. By next morning I had them. They picked up the trouble makers from their holes. The arsonists and looters were rounded up. Gen. Hamilton Wanasinghe (Later, Army Commander & Secy. Defence) who was then a colonel, brought an army contingent to assist. Order was restored within 10 days. Now, my point is that all these quick moves were possible under the centralized system which facilitated it. Would it be possible in a provincial policing arrangement where the Chief Minister’s consent is required to declare a state of emergency? Will it become necessary for the UN to pronounce that this is a case for R2P! 

The situation could also be serious if the centre will not want to assist, if the party in power at the center, is different from the party to which the Chief Minister belonged. It may be that the centre may want to capture power in the province by encouraging public protest against him, through lukewarm response to his requests, like what the government is doing to the Bribery & Corruption Commission by transferring officers playing critical roles, to cripple the organization. Thus, the situation as it is, is bad enough. If it is watered down further by weakening the system some more, one could imagine the levels to which law and order could descend. It is perhaps a human weakness to see only what is bad in the present predicament and to ignore its merits. Here, I am reminded of what my grandfather used to often say: “wadi pada gahanta giyoth, thibba padeth nethiwenawa.” ( if you try to do too many things, you might loose even what you have achieved already”)   

Here is another aspect of the matter. It is best explained with an example. 

During the JVP violence in the in 1988 as DIG Central Range I had a good deal of information on what was going on the Peradeniya University campus. There was ample information that several sectoral leaders of the Movement were operating from the Halls of Residence. I decided to conduct a massive search of the campus. I conveyed this intention to the IGP since I wanted additional strength and perhaps Army assistance. The IGP, Mr. Cyril Herath rejected the idea. I was angry, at the loss of the opportunity to capture some important operatives. But later I realized that he would be seeing the overall picture in the whole country and looked at the possible implications of such a move at that time. Had I been reporting to the Chief Minister at that time, I could have convinced him on the need to conduct the raid at that time as both he and I would have been seeing only the local situation and not the larger picture. These are some of the critical issues that could escape the grasp of the legislators and law framers. It is on such occasions that one realizes the beauty of the Police Ordinance and the Penal Code introduced by the colonial rulers, to well suite their requirement and not to satisfy other people. 

This again is more a conceptual issue. Under this Amendment, ‘exercise of police powers’  is devolved as per sec.1 of Appendix 1. Now, the ‘police powers’ are set out in the Police Ordinance and the investigative and prosecution powers & procedures are set out in the Code of  Criminal Procedure. And we were taught that the basic police powers possessed by the IGP up to recruit constable of yesterday are no different. The differences mainly lie in the exercise of administrative power over the different ranks at different levels. The basic Police power exercisable by all ranks is that a police officer is on duty at all times and exercises his powers in any part of the country. So, could the exercise of police powers be devolved any further than what has been done in 1876 when the Police ordinance was enacted? Could these basic powers of a police officer be conceptually circumcised ? If so how? 

Then what is the devolution of police powers that is sought to be achieved here? The only possible answer is that, it is the administrative power over the policeman on the ground who is expected to enforce the law without fear or favour. Then, the devolved power that is sought here, is the power to abuse the enforcement of the law. It is the devolution of the power to make political use of the police powers in a politicized police environment. The only devolution of police power that really needs to be done is to depoliticize the police which will allow the policeman on the ground to act according to the law that he is already empowered with. The only safeguard that is necessary is to put in place an effective mechanism to minimize police corruption. If ever this is done, one can rest assured that there will be no more clamour for devolution of police powers! 

But it is not to be. When the 13th Amendment states shamelessly that the provincial DIG “shall be, responsible to and under the control of the Chief Minister” and that a nominee of the Chief Minister will be a member of the provincial police commission, all pretences of an impartial police are removed crudely. The police department is rudely stripped naked and made into a private security service of the politician, in this case the Chief Minister. In fact, it already is. But there was at least a thin veil of pretence akin to modesty. Now it is no more. This marks an end of an era for the Police Service in this country as we had known it for the past 125 years. Hence forth, it will be political police service.         

These are some of the principal issues that shrike my mind. But there is a whole range of other issues which will be too laborious reading in an article like this. It requires serious study by professionals and academics.        

However, it must be said that though devolution of police power is not advocated, decentralization under the centralized command is desirable.  Here too, much of the police command structure is decentralized already. Further decentralization of financial authority & accountability, and command over the decentralized specialized functional arms could be looked at. However, the co-ordination at the top and accountability to the IGP and by him to the Defence Ministry is a must for the proper maintenance of law and order in the country. This had so far been taken for granted because of its unitary structural excellence introduced by the British. The provincial DIG could certainly be answerable locally, to the Chief Minster on maintenance of order in the province, but the decision of posting Police officers from the rank of SSP downwards and their transfers and promotions could not be left to the politicized provincial agency. I such an event, the people who supported the opposition political party will have to live in another province, till they get their turn!

 


About the writer

Gamini Gunawardane

Took a MPA degree from John F. Kennedy School of Government, Harvard University, U.S.A. in 1989. 

He spent another year at the Center for Criminal Justice of the Harvard University, on a Fulbright Research Fellowship, researching on policing, and produced, in 1990, a research thesis titled: A SEARCH FOR A NEW CONCEPT OF POLICING, FOR SRI LANKA. 

He has addressed several audiences in different parts of U.S.A. on policing problems in Sri Lanka and, has met several contemporary American experts on policing. He has visited several State and City Police establishments in the U.S.A., including New York Police Department and in Hong Kong & Singapore .   

He was engaged on further research on policing, in India, at the Center for Policy Research, New Delhi, and at the Jawaharlal Nehru University, New Delhi in 1992, and produced a research thesis titled: THE PROBLEM OF THE POLICE DEPARTMENT BEING AN INSTRUMENT OF THE GOVERNMENT.

He served Police Department for 35 years and retired prematurely, on a matter of principle, in Nov. 1998, as Senior Deputy Inspector General of Police (Crimes, Criminal intelligence and Organized Crime). 


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