Sri Lanka – Nation Building, Devolution and the 13th Amendment (Part 5)
By: Dr. Lionel Bopage
Melbourne, Australia (LNW): Part 5 (Link to Part 4)
Under colonialism, Sri Lanka’s policing and judicial system was developed to safeguard colonial privileges and interests. Since independence, this skewed system has continued with minimal changes, but with additional protections provided through enacting new legislation and otherwise, reinforcing the privileges and interests of the ruling elites. The need of the hour is to amend and democratise various Police Acts and Emergency Powers, and anti-terror legislation in the country so as to make those who implement such legislation more accountable and transparent. Nevertheless, the intrinsic nature of the devolution dialogue is that those opposed to devolution continue to remain silent on such aspects of the matter.
One argument raised against devolving police powers to provincial councils is that while a Cabinet Minister is in charge of the central police force [EconomyNext 3 August 2023, Sri Lanka parliament must discuss implications of devolving police powers: FM; availalble at: https://economynext.com/sri-lanka-parliament-must-discuss-implications-of-devolving-police-powers-fm-127300/] police units in each province being controlled by different chief ministers, are more likely to become politicised. Another reason cited is that if police powers are devolved the national security of the country would be compromised. In fact, the politicization of police started in the 1950s, i.e., three decades prior to the establishment of provincial councils, with the Bandaranaike regime employing police units for violently suppressing the democratic right to peaceful protest – particularly during the ‘satyagraha’ campaigns led by several Tamil leaders. This political, ethnic, and religious manipulation of the police force has now expanded to massive proportions.
The Department of Police became an object of ridicule a long time ago due to its attitude of pleasing the political masters of the day and their goons. Rather than performing their professional duties, the police officers are compelled to yield to the demands made by the political goons and thugs who give illegitimate instructions to carry out. If the officers resist the wishes of the politicians or the actions of their goons, then they will be penalized for doing their duty. When the National Police Commission was functioning, this situation became slightly better. But when the politicians realised that the Commission and its members were not yielding to their requests for transfers etc, the politicians came forward to change the constitution itself!
This is evidenced by the way the political elite and bureaucrats have employed police units and other security forces to fulfill their whims and day-to-day needs. Sri Lanka has been exposed to this type of politicisation from the days of Presidents Mahinda Rajapaksa and Gotabhaya Rajapaksa and now under President Ranil Wickremesinghe. This was particularly visible when the Rajapaksa-cum-Wickremesinghe regime used violence against the island wide Aragalaya campaigns last year to hound some of the protest leaders and lock them under harsh conditions for longer terms utilizing political and judicial manipulations. Hence, saying that the police force will become politicised if it is decentralised to the nine provinces is a moot point.
Police powers remained centralised throughout the last 75 years of post-independence, during which the Police have supposedly been maintaining public order. However, it was mainly due to political and religious interference in maintaining public order, particularly in the north and east, and also in other areas where diverse non-majoritarian communities are resident, the situation became much more than problematic. This situation led to many conflicts and a war both in the south and the north of the country. Last year there was a news item reporting that police transfers, particularly higher-level officers, are made to electorates in response to requests made by the political authorities of those electorates.
If devolution of police powers is unacceptable because of the potential for political interference in maintaining public order, how do we address safety and security concerns in areas inhabited by non-majoritarian communities? To make the system better, the way police appointments and transfers are made, and complaints made against the police are dealt with, needs to change. Such changes can be implemented through panels of independent personnel who possess wide experience and knowledge in law, management, human relations, social services, etc. And the independent personnel could be drawn from the judiciary and experts of law, in consultation with the Chief Justice of the land. The independent Police Commission needs to be truly independent and impartial! The establishment of a separate impartial and non-partisan authority to handle complaints against police is also necessary.
Notably, it was only last week that President Ranil Wickremesinghe disregarded a recommendation made by the Constitutional Council with regard to the third service extension [The morning 20 October 2023, Prez appointing IGP despite CC veto: Oppo. wants CC to seek AG’s advice on its powers, https://www.themorning.lk/articles/u1ug8bcrCeRX5aJslnRM] provided to the Inspector General of Police. These types of incidents highlight the need for establishing a separate independent and non-partisan authority to handle complaints against police.
An independent non-partisan National Security Authority (NSA) to handle appointments of top security brass including those of the police can strengthen this process. It should have responsibility and accountability to supervise investigative functions, including providing facilities for crime investigation. However, it should not have the power to interfere in cases that are under investigation. The NSA could also be authorised to be an appellate authority to record and handle complaints about illegal or irregular orders or political meddling. This could be done by any of the higher bodies subject to public scrutiny and will allow better accountability.
For community participation in policing, police administration needs to be more transparent, accountable, and participatory. This has never been the case in Sri Lanka. Since the 1950s, the situation has worsened. Police harassing and intimidating the Tamil-speaking civilians continues to this day. The precarious way of bending laws by the police and the judicial system to suit the whims and fancies of politicians and other authorities endures. The lack of sufficient staff to record and deal with complaints made by Tamil civilians in majority Tamil speaking areas remains a major obstacle for improving community relations and reconciliation.
Since the mid-fifties, the escalation of state-led pogroms, violence, and terror by thugs and security forces witnessed an increased police involvement in harassing and intimidating Tamil civilians. Prior to the Tamil militants launching terror attacks against the Sinhalese and other civilians in the south, there had been many instances in which Tamil civilians were slaughtered. The instances of brutality with which the police and security forces behaved against the Sinhalese in the south had been too many. There were occasions when entire villages, including the elderly and children, were wiped out without any impunity. How could one expect such a security force to behave in a more disciplined way against the non-majority communities?
It is in this context that the devolution of police powers needs to be looked at.
The 13th Amendment has land powers on its concurrent list. However, the centre has a dominant role over land through powers vested in the centre when dealing with national policies and urban development. The centre also managed the process of releasing crown land. Any land release requires the President’s approval upon request made by the relevant provincial council. Such alienation is also subject to several other special provisions relating to irrigation and development matters.
Provinces are further disadvantaged because the constitutional provisions stipulate a National Land Commission as the sole authority in formulating the National Land Policy. Those against devolving land powers to provincial councils argue that despite the prevailing understanding of it as a devolved subject, the Supreme Court has ruled otherwise. It has determined that “State Land shall continue to vest in the Republic”. The court’s interpretation was that a provincial council can utilize “State Land” only upon the centre making it available to the provincial council. This implies that a provincial council cannot appropriate state land unless the centre has made that land available to the council for its use.
Recently, President Wickremasinghe stated a National Land Commission will be appointed. Developing a National Land Policy is complicated as some advocate land should be vested in the provincial councils. However, some others argue that land must be allocated only for agricultural cultivation and business use. Sri Lanka can gain from the experiences of models used globally in this regard, for example in India, Canada and Australia. India’s land powers are fully devolved to the periphery. Every Indian state has legislation in dealing with their land matters.
22 October 2023
To be continued