Constitutional manoeuvres of separatist forces:
Police powers and National Security concerns - Part I
Manohara R. De Silva
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From the report presented by the author at the
national seminar held on May 4 at the BMICH in Colombo organised by the
World Alliance for Peace in Sri Lanka
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The subject ‘public order and the exercise of police powers’ (to the
extent set out in appendix) is included in the Provincial Council List.
Article 154 G (1) provides that a Provincial Council may make statues
applicable to the Province in respect of any matter in the Provincial
Council List.
Thus the Provincial Council will be at liberty to enact statues in
respect of law and order other than National Defence, National Security
and the use of any Armed Forces in aid of civil power.
Therefore there is a possibility of a Provincial Council not only
exercising its executive powers but also enacting legislation on any
matter falling within the matters set out in the Appendix 1 of the
Provincial Council list, pertaining to public order and the exercise of
police powers.
Clause 12:1 of Appendix states that “the Provincial Division shall be
responsible for the preservation of public order and the prevention,
detection and investigation of all offences (except the offences
specified in the schedule) and subject to the powers of the Attorney
General in terms of the Code of Criminal Procedure Act, the institution
of prosecutions in the relevant Courts in respect of such offences.”
An upright stance in the Police service will uphold the law.
ANCL file photo |
Thus this clause will authorize the Provincial Council to legislate
on any matter “for the preservation of public order and the prevention,
detection and investigation of offences.” Only institution of
prosecution need to be done in terms of the Code of Criminal Procedure
Act. This will result in different provinces having different laws
pertaining to public order.
The Provincial Councils will also be at liberty to enact a new Police
Statute embodying the powers of the Police Ordinance or more. Provincial
Councils (consequential provisions) Act No.
12 of 1989 will enable the Minister of a Provincial Council or a
relevant police officer to exercise the powers embodied in the Police
Ordinance which includes for instance the power to regulate public
processions, to issue licence to use music in streets etc.
‘Politicizing’ the Provincial Police
Commissions and ‘depoliticizing’ the National Police Commission
The 13th amendment to the constitution divided the Sri Lanka Police
to two divisions, namely the National Division and the Provincial
Divisions for each Province. The recruitment, promotion and disciplinary
control of members of the National Division is entrusted to the National
Police Commission whilst these powers in the Provincial Division is
entrusted to the Provincial Police Commission.
Clause 3 of Appendix 1 of list 1 of the 9th schedule to the 13th
amendment provides for the composition of the National Police
Commission. The said clause is reproduced below:
“3. Recruitment to the National Division and promotions of Police
Officers in the Provincial Divisions shall be made by a National Police
Commission composed of 3 members, namely -
a. the IGP
b. a person nominated by the PSC in consultation with the president,
and
c. a nominee of the Chief Justice”
Under the Constitution, before it was amendment by the 17th
amendment, the IGP and members of the Public Service Commission were
appointed by the President and therefore the National Police Commission
was under the control of the President.
The 17th amendment amended the said clause in the following manner:
“3. Recruitment to the National Police Division and promotion of
Police Officers in the Provincial Divisions to the National Division,
shall be made by the National Police Commission.
The 17th amendment which amended the aforementioned Clause 3
introduced a new National Police Commission consisting of 7 members
appointed on the recommendation of the Constitutional Council, taking
away the Presidential control.
Whilst taking away the powers of the President in this manner with
regard to the National Police and entrusting the same to a multi-ethnic
National Police Commission, the 17th amendment introduced a saving
clause (Article 155 G (1) (b)) to continue with the Chief Minister
controlled Provincial Police Commissions created by the 13th amendment.
Relevant clause (Clause 4 of the said Appendix) pertaining to the
Provincial Police Commission found in the 13th amendment which was not
amended by the 17th amendment is reproduced below:
“4. Recruitment to each Provincial Division shall be made by a
Provincial Police Commission composed of 3 members, namely -
a. the DIG of the Province;
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.’
The 17th amendment did not amend Clause 4 to ‘depoliticize’ the
Provincial Police Commission, but saved it through Article 155 G (1) (b)
introduced by the 17th amendment. The said Article is reproduced below:
“the Commission shall not in the exercise of its powers under this
Article, derogate from the powers and functions assigned to the
Provincial police service commissions as an when such commissions are
established under Chapter XVIIA of the constitution’.
Clause 6 of the said Appendix states that “The IGP shall appoint a
DIG 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.” (The 17th amendment amended clause 6 by replacing
the word ‘President’ with ‘National Police Commission’).
Clause 11.1 states that the “DIG of the province shall be responsible
to and under the control of the Chief Minister of the Province.”
Clause 11 further states 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 DIG of such Province”.
Thus if the IGP who is an appointee of the Constitutional Council
disputes with the Chief Minister on the appointment of the DIG of the
Province, the National Police Commission will appoint the DIG of the
Province. However the DIG who is so appointed has to function under the
control of the Chief Minister. Therefore such a disagreement has no
practical significance.
Out of the 3 members of the Provincial Police Commission, 2 members
(the DIG and Chief Minister’s nominee) are therefore directly controlled
by the Chief Minister. The 3rd member too is an appointee of the
multi-ethnic Public Service Commission appointed by the Constitutional
Council.
If the sole objective of the 17th amendment was to depoliticize the
Police Force why was it that only the National Police Division was
‘depoliticized’ whilst exempting the Provincial Police Division from
de-politicization. The objective was obviously dishonest.
The 17th amendment did away with Presidential control of the National
Police Force while ensuring that the Provincial Police Commission was
controlled by the Chief Minister.
Delegating Police powers
Clause 5 of the Appendix provide as follows: “The National Police
Commission or a Provincial Police Commission shall be entitled to
delegate such of its powers as may be prescribed to such other person or
authority as may be prescribed.”
This clause will allow both the National Police Commission and
Provincial Police Commissions to delegate their powers to a third
person.
This is a very dangerous provision as this third person on whose
power is delegated could be even a rebel group.
Making National Police units
operating in the Provinces ineffective and weak
Attention is drawn to Clause 11 of the Appendix, which is reproduced
below:
“11. 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 DIG of such Province.”
Clause 11.1 states that “The D.I.G. of the Province shall be
responsible to and under the control of the Chief Minister.........”
Therefore even if a National Police unit is in operation in a
Province, they will function under the Chief Minister.
If the perpetrator of the crime is the Chief Minister himself, there
is no way for the Central Government to spontaneously respond to such a
situation, except by resorting to Clause 11.2 which is reproduced below;
“11.2. The provisions of paragraph 11.1 are subject to the
qualifications that-
a. upon the declaration of an emergency in the Province, the
President may assume such powers and responsibilities of the Chief
Minister and the Provincial Administration in respect of public order
within the Province as he may, by regulation, provide; and
b. where the President is of the opinion that the security of or
public order in a province is threatened by grave internal disturbance,
he may, without the declaration of an emergency, but in consultation
with the Chief Minister of such Province, and subject to the provisions
of the Public Security Ordinance, by order, deploy in aid of the civil
power, any unit of the National Division, in the Province for the
purpose of restoring order:
Provided that every such order shall cease to be in force as soon as
the President is satisfied that public order has been restored or on the
expiry of thirty days from the date of the order, whichever is earlier.”
This provision needs clarification.
Supposing a Sinhala or Muslim village is attacked, the National
Police unit cannot immediately walk into the village for their
protection unless the provincial D.I.G. controlled by the Chief Minister
directs them to do so.
Only if the situation is conveyed to the President and the President
decides to act on the above mentioned provisions that the villagers will
have some redress. By the time the matter is brought to the notice of
the President and he in consultation with the Cabinet of Ministers
directs the deployment of civil power, the village will be totally
destroyed.
Power to determine the Cadre
Clause 7 of the Appendix provides that the Government of Sri Lanka
can determine the cadre of the National Police Division, while the
provincial administration (i.e. Provincial Council) can determine the
cadre of the Provincial Police Force with the approval of the National
Police Commission.
Prior to the 17th amendment, approval of the President was necessary
but the clause was amended taking away the power of the President and
placing the same in the multi-ethnic National Police Commission.
Thus the cadre of the Provincial Police Force is determined without
any control of the President or the Cabinet of Ministers.
Restriction on wearing uniforms by
officers of the National Police Division
Clause 10 provides that
“Members of the National Division and the Provincial Divisions shall
wear the same uniforms and insignia of rank, provided that uniforms of
the members of each Division shall bear distinctive shoulder flash,
indicating the Division to which he belongs to.”
Clause 10.1 provides that
“There shall be once uniformed police force in each province
comprising of the members of the Provincial Division and the officers
seconded thereto.
Member of the National Division shall ordinarily be in plain cloths
provided that they may wear uniforms when performing any duties in
respect of the maintenance or restoration of public order as set out in
paragraph 12.2, 12.3 and 12.4. Provided also that the IGP and such other
officers as may be specified shall ordinarily be attired in uniforms.”
The requirement of members of the National Police Division to be
ordinarily in ‘Plain Cloths’ is nothing but an attempt to prevent people
from even identifying a National Police Officer when they are under any
threat from the Chief Ministers Provincial Police Force.
Officers of the National Police can wear uniforms only in the
following instances;
1. Where the Chief Minister seeks the assistance of the National
Division to preserve public order within a province, (vide Clause 12.2)
2. Where a State of Emergency has been declared in a province, (vide
Clause 12.3)
3. Where investigations are undertaken by the CID or a National
Police unit at the request of the Chief Minister, [vide Clause 12.4 (a)]
4. Where the I.G.P. is of the opinion that an investigation of such
offence by the C.I.D. or any other unit of the National Division is
necessary, in the public interest and directs after consultation with
the Chief Minister and the approval of the Attorney General, that such
offence be investigated by the CID or any other unit of the National
Division, [vide clause 12.4 (b)]
It is significant that situations envisaged by Clause 12.1 are not
included in clause 10.1 where policeman of the National Police are
permitted to wear uniforms.
Thus in a situation where the National Police is investigating an
offence falling within the schedule to the appendix such as an offence
against the State or State property or an offence prejudicial to
National Security, the police personnel cannot wear uniforms.
To be continued |