By C. A. Chandraprema-
August 15, 2018, 10:40 pm
(Continued from last Friday)
Under the provisions of Appendix I of the 9th Schedule, which was introduced by the 13th Amendment to the Constitution, police and public security are a subject devolved to the provincial councils. However, for more than three decades, no government has implemented these provisions due to the fear that the country would be rendered ungovernable. Despite this history of non-implementation, the proposed draft constitution also has provisions relating to the devolution of police powers which are, if anything, even worse than the provisions brought in by the 13th Amendment. Under the proposed draft constitution, the Sri Lanka Police are to be divided into the Sri Lanka National Police and the Sri Lanka Provincial Police. The type and quantity of firearms, ammunition and armaments for the Provincial Police Services will be determined by the National Police Commission after consulting the Inspector General of Police and the Provincial Police Commissions as to the requirements of the respective Provincial Police Services.
The wording of this provision indicates that it will be the provincial police commission that will have the final say as to what they require. Though it will be the Central Government that procures and issues such armaments, it will not be able to prevent the provincial police forces from getting what they want. Under the 13th Amendment as well, the type and quantity of fire-arms for the Provincial Divisions were to be determined by the National Police Commission after consultation with the Provincial Police Commission. However the 13th Amendment was somewhat better than the present constitutional proposals in that it had the provision that "uniform standards and principles shall be applied for all Provincial Divisions". The latter provision is absent in the present proposals and there need not be any uniformity in the armaments used by the provincial police forces. In a country that had a terrorist army trying to take over the North and East, no provincial police force can be allowed to bear arms that other provincial police forces do not have.
As in the case of the 13th Amendment, in the proposed draft constitution, too, the national police force is to have jurisdiction only over a limited number of specified offences, Viz.:
1. Offences against the Republic, including waging war against the state, collecting men, arms and ammunition for same, helping prisoners escape, offences relating to the armed forces such as the abetment of mutiny, assault of a superior officer, abetting desertion, harbouring deserters, impersonation of armed forces personnel, and offences prejudicial to national security, territorial integrity and sovereignty; Terrorism and related offences.
2. Any offence committed against the President, Prime Minister, and Minister or Member of Parliament, any judicial officer; any officer of the Attorney General's Department; a member of the Constitutional Council; a member of any National Commission etc.
3. Offences relating to Elections.
4. Offence against a diplomatic or consular representative of a foreign state, or a visiting foreign Head of State or Head of Government; Any offence against an officer of an inter-governmental organization.
5. Offences relating to coins, currency and government stamps
6. Offences relating to property belonging to the Republic or a public corporation, or company established the whole of part of the capital whereof has been provided by the Republic, above a particular value.
7. Any offence committed wholly or partly within the Capital Territory and the Colombo Metropolitan Area. (This is a new feature which was not in the 13A.)
The offences coming under the jurisdiction of the national police are those that seldom occur. Hence the provincial police have effective charge of all day to day police work pertaining to crime, fraud, narcotics, traffic, public order etc. This was the main weakness in the 13th Amendment which has prevented police powers from being devolved for the past 30 years and we see the same issue in the proposed draft constitution as well. Under the provisions of the proposed draft constitution, the National Police Commission is to be responsible for the recruitment, promotion, transfer, disciplinary control and dismissal of all officers of the National Police Service and officers down to the rank of ASP in the provincial police forces. This appears to be slight improvement over the 13th Amendment where the provincial police division was to have such control over all officers in the province other than the DIG of the provincial police.
Some useful provisions in the 13th Amendment have been dropped in the proposed draft constitution. One such provision is that the cadre of all ranks of the provincial police divisions could be fixed only with the approval of the National Police Commission, based on criteria relating to the area and population of the province. Another provision that has been dropped is that the National Police Commission will set standards for the recruitment and promotion of Police Officers of all Divisions and such standards shall be uniform for all Provincial Divisions. Furthermore, under the 13th Amendment, the central government of Sri Lanka was to be responsible for the training of all recruits of the Sri Lanka police force – which provision too has been dropped in the proposed draft constitution.
Provincial police force
Under the proposed draft Constitution, there will be a Provincial Police Commission in every Province. The Constitutional Council is to be empowered to make recommendations to appoint members of the Provincial Police Commissions after considering nominations received from the public, as well as the Chief Minister and Leader of the Opposition of the respective Provincial Council. Under the 13th Amendment, the Provincial Police Commission was to be composed of three members - the DIG of the Province, a person nominated by the Public Service Commission in consultation with the President, and a nominee of the Chief Minister of the Province. Thus we see that the arrangement under the 13th Amendment gave the centre a better hold over the Provincial Police Commissions than the provisions of the proposed draft constitution.
The Provincial Police Commission shall be responsible for the recruitment, promotion, transfer, disciplinary control and dismissal of officers of the Provincial Police below the rank of Assistant Superintendent. In respect of officers of the rank of ASP and above, within the Provincial Police Service, the Provincial Police Commission may exercise powers of transfer within the Province, and of disciplinary control (not extending to dismissal). One area in which the proposed draft constitution is an improvement over the 13th Amendment is probably the appointment of the provincial head of police. Under the 13th Amendment, the IGP was to appoint the provincial DIG with the concurrence of the Chief Minister and if they are unable to agree, the matter was to be referred to the National Police Commission which once again would have to consult the Chief Minister before making the appointment. Under the proposed draft constitution, the Provincial Police is be headed by a Senior DIG rank Provincial Police Commissioner appointed by the National Police Commission on a recommendation made by the Chief Minister from a list provided by the National Police Commission. If the Commission and Chief Minister are unable to agree on a candidate, the National Police Commission will refer its recommendation to the Constitutional Council and the latter body will consult the IGP, Chief Minister and National Police Commission and make its choice.
Thus, we see that the provisions in the proposed draft constitution have mitigated somewhat the inordinate power that the Chief Minister was accorded by the 13th Amendment in the matter of appointing the provincial head of police. As in the case of the 13th Amendment, under the proposed draft constitution, too, the Provincial Police will have jurisdiction over all offences other than those coming under the National Police and any offence contained in a Statute enacted by the respective Provincial Council. A new feature in the proposed draft constitution is that the provincial police will be able to investigate into any and all offences which the National Police is empowered to investigate, unless and until the National Police commences an investigation into such matter. Where the National Police so commences an investigation, the Provincial Police shall forthwith hand over such investigation to the National Police.
There are some important areas covered by the 13th Amendment and the proposed draft constitution is silent thereon. For example, there is a provision in the 13th Amendment which states that there shall be one uniformed police force in each Province, comprising the members of the Provincial Division and the officers seconded thereto from the national police. Members of the National Division shall ordinarily be in plain clothes provided that they may wear uniforms when performing duties in respect of the maintenance or restoration of public order. This is an important matter relating to the manner in which the police was supposed to function but the proposed draft constitution is silent on the matter.
Public Security
Under the proposed draft constitution, the President may declare a state of emergency on the advice of the Prime Minister if there is danger to public security or during natural disasters and epidemics and the like. A Governor of a Province, on the advice of the Chief Minister may advise the Prime Minister that a situation warranting a state of emergency has arisen within his Province. Where the Emergency Regulations vest special powers in the Police, Provincial Police officers shall, for the purpose of the exercise of such powers be under the control of the National Police. The President may, in consultation with the Prime Minister, where a situation has arisen, in which a provincial administration, is promoting armed rebellion or insurrection or engaging in an intentional violation of the Constitution which constitutes a clear and present danger to the territorial integrity and sovereignty of the Republic, by proclamation assume all or any functions of the Governor, the Chief Minister, the Board of Ministers or anybody or authority in the Province; and if necessary, even dissolve the Provincial Council.
On the face of it, such provisions may seem more than adequate to ensure public security but there are serious caveats to these provisions. All such proclamations under the public security laws will be subject not only to Parliamentary approval but also to judicial review. A Declaration of a State of Emergency, will not be applicable for more than one month at a time. The President will summon Parliament mandatorily within four days upon a state of emergency being declared, or a proclamation being issued taking over the functions of a provincial council. If Parliament does not approve the declaration of emergency by simple majority, the declaration of emergency will lapse. The State of Emergency, Proclamation or any Emergency Regulations promulgated shall be reviewed by parliament monthly. There shall be a standing committee of parliament to review such declarations of emergency and which shall periodically review and report to parliament. A state of emergency may continue in excess of three months or a period of more than 90 days within a 180 day period only if it is approved by two-thirds of the members of Parliament.
This requirement of a two-thirds majority to continue a state of emergency beyond three months is a recipe for disaster. One can only imagine what would have happened if such provisions had been in place during the armed insurrections and rebellions that this country had to face in the past. Furthermore, to subject a declaration of emergency to judicial review is a suicidal course of action. A declaration of emergency is an executive act taken in extreme situations to ward off a threat. If interested parties go to court over the declaration of the emergency, the first thing the court will do will be to suspend the order until the case is heard. Even if there is a provision saying that the case has to be heard while the declaration remains in effect, there is always the danger that the judiciary may order the lifting of the emergency. The judiciary is not competent to judge whether a particular situation warrants a declaration of emergency. That is not the function of the judiciary. Besides the executive will have to reveal even sensitive information to convince the court to allow the emergency to continue. How conducive will such a situation be to national security? These caveats placed on public security laws will naturally give wings to the oft-heard charge that the whole purpose of the proposed draft constitution is to facilitate separatism in this country.
(To be continued)
Atilla shown in a court room sketch with his attorney Gerald J DiChiara this March (Reuters)
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