Constitutional manoeuvres of separatist forces:

Police Forces and National Security concerns - Part II

Manohara R. De Silva

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

Providing for special training for the Provincial Police Force

Clause 9.2 states; “The Government of Sri Lanka shall be responsible for the training of all recruits to and of members of all Divisions of the Sri Lanka Police Force. The President may, where he considers it necessary, provide for alternative training for members of any Provincial Division.”

This cause was amended by the 17th amendment by replacing the ‘President’ with the ‘National Police Commission’.

The resultant position is that whilst a uniform training is given to all police divisions in Sri Lanka by the Government of Sri Lanka, the National Police Commission can give a special separate training to members of any provincial division.

Thus if India is to offer specialised alternative training to the police personnel of the North and East and the same is accepted by the multi-ethnic National Police Commission, it would be possible to establish a Special Police Force for the North and East different from the other Police Forces.

Before the 17th amendment, the discretion was with the President, who could have allowed or refused such offer at his discretion. Since the 17th amendment, the sole authority to decide whether such special training should be given to the North and East is with the multi-ethnic National Police Commission.

Restrictions placed on investigation of offences by the National Police Division

Other than in a situation where the Chief Minister requests the National Police Division to investigate an offence (other than scheduled investigations), it would be a near impossibility to do a successful investigation.

For the National Police Division to commence investigation of an offence within a province it has to pass through the following hurdles:

(1) the Inspector General of Police should form an opinion that an investigation of such offence by the CID or by a unit of the National Police Division is necessary in the public interest.

(2) The Inspector General of Police must consult the Chief Minister,

(3) The Inspector General of Police must obtain the approval of the Attorney General,

(4) The Inspector General of Police after completing steps 1, 2 and 3 should direct such investigation.

It will be seen from the above that by the time the aforementioned steps are gone through, the perpetrators of the offence may have slipped out of the country or the evidence destroyed making any investigation fruitless.

Power to acquire firearms and ammunition

The 13th amendment to the Constitution provides that, “the nature, type and quantity of firearms and ammunition and other equipment for the National Division shall be determined by the National Police Commission.

The Nature, type and quantity of firearms and ammunition and other equipment for all provincial divisions shall be determined by the National Police Commission after consultation with the Provincial Police Commissions and uniform standards and principles shall be applied for all provincial divisions.”

The National Police Commission created by the 13th amendment was subject to the control of the President as described above.

However, the said National Police Commission was replaced with a new multi-ethnic National Police Commission by the 17th amendment which is not subject to Presidential Control. This may have serious repercussions on National Security of a country that has secessionist tendencies.

Lessons to be learnt from South Africa

It is interesting to examine the distribution of police powers in South Africa. In this regard, an examination of Articles 205, 206, 207 and 208 of the South African Constitution is useful.

The said Articles are reproduced below.

In South Africa, police powers are not included in the list the Province or Local Government can exercise power exclusively.

It is the National Legislature that will determine the extent of the power of the Provincial Police.

In Sri Lanka, Police powers are included in the Provincial Council List.

Also the South African Constitution states that the ‘political responsibility’ of policing is with a Cabinet Minister. It is the said Cabinet Minister that will determine Policing Policy of the nation.

205. Police service

1. The national police service must be structured to function in the national, provincial and where appropriate, local spheres of government.

2. National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.

3. The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

206. Political responsibility

1. A member of the Cabinet must be responsible for policing and must determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives.

2. The national policing policy may make provision for different policies in respect of different provinces after taking into account the policing needs and priorities of these provinces.

3. Each province is entitled

a. to monitor police conduct;

b. to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service;

c. to promote good relations between the police and the community;

d. to assess the effectiveness of visible policing; and

e. to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.

4. A provincial executive is responsible for policing functions

a. vested in it by this Chapter;

b. assigned to it in terms of national legislation; and

c. allocated to it in the national policing policy.

5. In order to perform the functions set out in subsection (3), a province

a. may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community; and

b. must make recommendations to the Cabinet member responsible for policing.

6. On receipt of a complaint lodged by a provincial executive, an independent police complaints body established by national legislation must investigate any alleged misconduct of, or offence committed by, a member of the police service in the province.

7. National legislation must provide a framework for the establishment, powers, functions and control of municipal police services.

8. A committee composed of the Cabinet member and the members of the Executive Councils responsible for policing must be established to ensure effective co-ordination of the police service and effective co-operation among the spheres of government.

9. A provincial legislature may require the provincial commissioner of the province to appear before it or any of its committees to answer questions.

207. Control of police service

1. The President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service.

2. The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing.

3. The National Commissioner, with the concurrence of the provincial executive, must appoint a woman or a man as the provincial commissioner for that province, but if the National Commissioner and the provincial executive are unable to agree on the appointment, the Cabinet member responsible for policing must mediate between the parties.

4. The Provincial Commissioners are responsible for policing in their respective provinces

a. as prescribed by national legislation; and

b. subject to the power of the National Commissioner to exercise control over and manage the police service in terms of subsection (2).

5. The Provincial Commissioner must report to the provincial legislature annually on policing in the province, and must send a copy of the report to the National Commissioner.

6. If the Provincial Commissioner has lost the confidence of the provincial executive, that executive may institute appropriate proceedings for the removal or transfer of, or disciplinary action against, that commissioner, in accordance with national legislation.

208. Police civilian secretariat

A civilian secretariat for the police service must be established by national legislation to function under the direction of the Cabinet member responsible for policing.

Another important area that needs consideration is intelligence. Article 209 and 210 provides for the establishment and control of intelligence services and their powers and functions. The said Articles are reproduced below.

209. Establishment and control of intelligence services

1. Any intelligence service, other than any intelligence division of the Defence Force or Police service, may be established only by the President, as head of the national executive, and only in Terms of National Legislation.

2. The President as head of the national executive must appoint a woman or a man as head of each intelligence service established in terms of subsection (1), and must either assume political responsibility for the control and direction of any of those services, or designate a member of the Cabinet to assume that responsibility.

210. Powers, functions and monitoring

National legislation must regulate the objects, powers and functions of the intelligence services, including any intelligence division of the Defence Force or Police service, and must provide for

a. the co-ordination of all intelligence services; and

b. civilian monitoring of the activities of those services by an inspector appointed by the President, as head of the national executive, and approved by a resolution adopted by the National Assembly with a supporting vote of at least two thirds of its members.

To be continued