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Constitutional manoeuvres of separatist forces:

Police powers and National Security concerns - Part I

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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

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