Removal of Inspector General, a Constitutional hiatus?

Professor M O A De Zoysa-Wednesday, October 10, 2018

“I feel sorry about the police force. The Inspector General of the Police has become a joker. Former IG’s never behaved like this. I don’t know whether a thing called the police exists now. Due to his behaviour, the Prime Minister and I have come under severe criticism. Something has to be done about this quickly. The IG’s behaviour is shameful. There are media reports saying that crimes have increased in this country. Serious action should be taken against this.” The person who criticized the IGP was none other than the Executive President of Sri Lanka, Maithripala Sirisena, the same person who appointed the current IGP three years ago. The President leveled this criticism against the IGP at the Cabinet meeting held last week.

Among the many issues faced by the current government, the issue related to the behaviour of the IGP is a serious one. The IGP’s behaviour and whatever he said came under serious public criticism and due to this, a call for his removal arose from the society. As he was not promptly removed, people also started to severely criticize the government. Some who present these accusations level it against the Prime Minister and the UNP leaving out the President and the other factions of the government and allege that the Prime Minister and the UNP are fundamental in shielding the IGP from being removed from office. Underlying these accusations is the idea that it is the Prime Minister and the UNP which is barring the President and the others in the government from removing the IGP. The statements made by the Joint Opposition in this regard are prime examples of the above. This group states that despite the President and his group wanting to remove the IGP from office, the UNP and the Prime Minister is protecting the IGP from being removed.

In reality, more than the Government, it is the UNP and the Prime Minister who has come under severe criticism due to the behaviour of the IGP. The reason behind this is that some label the IGP as a supporter of the UNP and many in the society subscribed to this notion without thinking about it critically and therefore still believe that the Prime Minister and the UNP are working towards protecting him. If a democratically elected government comes under the severe public criticism due to the behaviour of one public servant, that officer should be immediately removed from office. If any person or political party comes forward to protect such an officer covertly or overtly, it is needless to say that it is a serious crime. But it is questionable whether the accusations leveled against the Prime Minister and the UNP are fair because when appointing and removing the IGP, a person or a political party cannot interfere in it due to the constitutional provisions guiding them.

Constitutional provisions

The office of the IGP is a public service post laid out in the constitution i.e. it is one of the posts stipulated and enshrined in the constitution. According to the constitution, appointments to such positions should be done by the President. As these regulations have been changed time and again with the introduction of various amendments there is no consensus among the constitutional provisions laid out in relation to this. The first regulation in relation to this was the provisions laid out in the Constitution of 1978, under article 54. It stated that “the President shall appoint all public officers required by the Constitution or other written law to be appointed by the President, as well as the Attorney-General and the Heads of the Army, the Navy, the Air Force and the Police Force.” The constitution did not provide guidelines as to who should be appointed and on what grounds those appointments should be based on allowing the President to make such appointments on his/her whims and fancies.

The 17th Amendment made to the Constitution of 1978 which came into effect in the year 2000 changed article 54 and stated that the President should make the appointments in consultation with the constitutional council. Accordingly, when appointments have to be made to the public service posts mentioned in the constitution, the President can only appoint them after following the directives of the Constitutional Council. The following are such posts where this process had to be followed when making appointments.

1. Members of the Election Commission
2. Members of the Public Service Commission
3. Members of the National Police Commission
4. Members of the Human Rights Commission of Sri Lanka
5. Members of the Bribery Commission
6. Members of the Monetary Commission
7. Members of the Delimitation Commission
For the following posts, the President could only appoint people only if the Constitutional Council approves the nominations made by the President to the said council.
1. The Chief Justice of the Supreme Court and other Judges
2. The President of the Appeals Court and other Judges
3. Members of the Judicial Service Commission except its President
4. The Attorney General
5. The Auditor General
6. The Inspector General of the Police
7. The Ombudsman
8. The Secretary General of the Parliament

The 18th Amendment to the Constitution brought out on September 8, 2010, by the former government headed by Mahinda Rajapaksa removed the checks imposed by the 17th Amendment on the President in appointing high ranking government officials on his/her whims and fancies and transferred the sole authority of appointing such officers back to the President. This was again repealed in 2015 by the 19th Amendment to the Constitution introduced by the current government which reversed the absolute authority given to the President in appointing high ranking public officials and brought back the method introduced by the 17th Amendment to the Constitution. As a result of this change, the President could only appoint the IGP if the Constitutional Council approves the nomination given by the President. But even though the Constitutional provisions clearly laid out as to how the IGP should be appointed none of the amendments laid down provisions as to how an IGP can be removed from office prior to his/her retirement.

Removal of Officers (Procedures) Act

So from the above discussion, it becomes clear that it is not the Prime Minister or the UNP who is actually working to keep the IGP in office but this particular crisis in the Constitutional provisions. Thus, how can the IGP then be removed? As lawyers point out, the only way to overcome this situation is to follow the directives given in the Removal of Officers (Procedures) Act number Five of 2002 which deals with the removal of officers mentioned in the constitution. According to this act, there are two ways which can be adopted to remove an IGP from office. Firstly, if the President is convinced that the IGP is guilty of the following offences, the President can remove the IGP from office. The said offences are:

(a) being adjudged an insolvent by a court of competent jurisdiction; (b) being unfit to continue in office by reason of ill health or physical or mental infirmity; (c) being convicted of an offence involving moral turpitude, treason or bribery; (d) being found guilty of misconduct or corruption; (e) being found guilty of gross abuse of power of his office; (f) being found guilty of gross neglect of duty; (g) being found guilty of gross partiality in office; or (h) ceasing to be a citizen of Sri Lanka.
The second method is to remove the IGP through a motion passed in Parliament if he/she is found to be guilty of one or more of the following offenses:

(d) being found guilty of misconduct or corruption; (e) being found guilty of gross abuse of power of his office; (f) being found guilty of gross neglect of duty; (g) being found guilty of gross partiality in office.

For this to come into force, a resolution should be forwarded to Parliament by not less than 1/3 of the members of parliament (including those not present) claiming that an inquiry board should be appointed to inquire into the allegations (as mentioned above) and it should be approved by a majority vote in Parliament.

Accordingly, an inquiry board should be constituted and it should consist of three members, namely a supreme court judge appointed by the Chief Justice who will preside as the President, the Chairman of the National Police Commission and another member who will be an imminent person in the field of law or an eminent person in the field of public management appointed on the recommendation of the Prime Minister and the Opposition Leader. If this inquiry board after conducting an inquiry deems that the IGP is guilty of the above mentioned charges, a motion should be brought before Parliament requesting his removal and it should be approved by a majority vote in Parliament. After that, the resolution should be forwarded to the President and the President should take the necessary steps to remove the IGP.

Therefore, it is extremely difficult to remove an IGP prior to his retirement as it is an extremely complex process. One thing becomes very clear and that is that the Prime Minister and the UNP cannot do anything much to keep or remove the current IGP from office and this fact should be understood by the members of the Joint Opposition and its followers.

The Joint Opposition should act responsibly and stop misleading the public by spreading false propaganda over and over again in relation to this and what they should do is to forward a resolution to the Parliament as mentioned above requesting to remove the IGP or pressurize the current government to bring forth such a motion. Finally, it is apt to state that such a move would be the ultimate litmus test to check the stance of the Prime Minister and the UNP with regard to the current IGP.