New Police structure and Emergency Laws

Constitutional Assembly: Report of the Police, Law and Order Subcommittee

By C. A. Chandraprema-November 28, 2016

Police powers were among the most contentious topics in the whole devolution debate and the provisions of the 13th Amendment in this connection were never implemented by any government over the past three decades, because it would have rendered the country ungovernable. Now however, the Police Law and Order Subcommittee proposes to actually carry out what no previous government even contemplated. This Subcommittee of the Constitutional Assembly has proposed that the Police Ordinance be replaced with a completely new Police Act and that changes be made to the emergency laws – which would take the provincial police and law and order powers even beyond what was envisaged in the 13th Amendment.

The proposed new Police Act will divide the Sri Lanka police force into the Sri Lanka National Police and the Sri Lanka Provincial Police and the latter again into nine separate units. All officers of the Sri Lanka Police shall wear the same uniform and insignia and officers of the Provincial Police will wear a distinctive shoulder flash to indicate the provincial police force to which they are attached. Even though the 13th Amendment had stipulated that the national police would in normal circumstances be in plain clothes while the provincial police will be in uniform, no such provision has been made in this subcommittee report. However due to the limited functions envisaged for the national police, it is unclear where the national police will be on duty in uniforms.

Following the lead of the 13th Amendment, the present Subcommittee has also proposed limiting the role of the national police to exercising jurisdiction over offences against the state, the armed forces, ministers, MPs, judicial officers and public officers, offences relating to elections, offences against diplomatic representatives, offences relating to currency and government stamps, offences against state property and international crimes. Everything else will be the preserve of the provincial police forces. If the national police will not be manning police stations or patrolling the streets and carrying out investigations into day to day complaints made by the public, where would they be serving as uniformed policemen? This is why the 13th Amendment was forthright enough to state that the national police would be in plain clothes in normal circumstances, while only the provincial police would be in uniform.

Sidelining of the national police

It can be observed that the jurisdiction of the national police would be limited to offences that seldom occur which means that even the cadre requirement would be vastly reduced and the national police will become like one of the specialised units such as the special branch that operates within the police dept. today. Even at present, investigations into the type of offences reserved for the national police in the 13th Amendment and the Subcommittee’s proposals would be handled by specialised units within the police department. One point of departure from the 13th Amendment in the proposals of the Subcommittee is the creation of a Colombo metropolitan police division which will be outside the jurisdiction of the Western province police force and will be the exclusive preserve of the national police force. Thus the metropolitan Colombo area will be the only part of the country where one will see the uniformed national police performing normal police functions on a day to day basis.

If police powers had been devolved, as per the 13th Amendment, the leaders of the government and even the IGP himself would have been living under the jurisdiction of the Western province police with everything that entails. That problem seems to have been solved to some extent by the Subcommittee’s proposal to have a Colombo Metropolitan police force which will exercise the powers of both the national police and the Western province police in the Colombo metropolitan area. The Western province police force will not have any jurisdiction in the Colombo Metropolitan area.

There is a difference in the way provision has been made for the referring of investigations to the CID between the devolution proposals in the 13th Amendment and the proposals of the Subcommittee on Police and Law and Order. According to the 13th Amendment, any offence which may ordinarily be investigated by a provincial division may be investigated by the CID or any other unit of the national division if the chief minister makes a request to that effect. If the IGP is of the opinion that an offence should be investigated by the CID in the public interest, he can direct the CID to take over a case ‘in consultation’ with the chief minister, and the approval of the Attorney General. Under the provisions of the 13th Amendment, it was the chief minister who had the final say as to whether a matter would be investigated by the CID or not.

The proposals of the Subcommittee on Police and Law and Order in this regard are that the Criminal Investigation Department can conduct investigations into a matter a) on a direction issued by the Inspector General of Police, b) on the advice of the National Police Commission, c) on the advice of the Attorney General, d) on a request by a Provincial Police Commissioner. This makes it look as if national level officials and institutions such as the IGP, the AG and the national police commission have the discretion to refer matters to the CID. However there is some confusion regarding this proposal as the Subcommittee has included in their report yet another proposal about the manner in which a matter coming under the jurisdiction of the provincial police can be referred to the national police force.

Sub-national police forces

If the Inspector General of Police in consultation with the respective Provincial Police Commissioner forms the view that a high degree of expertise may be necessary for the conduct of the investigation, it could be directed to the national police. Furthermore, if the Provincial Police is unable or unwilling or does not carry out the investigation, it can be handled by the national police but only if the provincial police commissioner agrees to such a shift of responsibility. Another way in which the national police will get to investigate something falling under the jurisdiction of the provincial police would be for the provincial police commissioner to make a request to that effect. We see that this second proposal is closer to the original arrangement in the 13th Amendment as we saw above. The CID comes under the national police. If the national police can be brought into an investigation that comes within the jurisdiction of the provincial police only with the provincial police commissioner’s consent, how can the CID be brought into an investigation at the discretion of the IGP, the Attorney General or the National Police Commission as stated above? The Subcommittee has put forward two irreconcilable proposals and this confusion needs to be sorted out.

According to the Subcommittee’s proposals, the Provincial Police Commissioner will be all powerful within his jurisdiction. Even the IGP’s oversight over the provincial police commissioner is limited. The Inspector General of Police may issue directions to the Provincial Police Commissioners on matters relating to the overall management and administration, and the execution of duties and functions of the provincial police. However, the IGP cannot give directions to the provincial police commissioners regarding matters that come under the jurisdiction of the provincial police. According to the Subcommittee report, the provincial police commissioners are to be appointed by the National Police Commission, on a recommendation made by the respective Provincial Police Commissions. The provincial Police Commission in turn will be nominated jointly by the chief minister and leader of the opposition of the provincial councils and given their appointments by the Constitutional Council.

The provincial police units proposed by the Subcommittee have even greater powers than the provincial police units under the 13th Amendment. For example, under the 13A, the training of all police officers both in the national police force as well as the provincial police forces were the exclusive preserve of the national police authorities. But under the Subcommittee’s proposals the provincial police units will have their own training institutes. This is a dangerous provision as some provincial councils will be able to give their police officers the kind of training not available to policemen in other jurisdictions. The danger in such a state of affairs is magnified when viewed in the light of the fact that the new proposals of the Subcommittee seeks to ethnicise and tribalise the police force. When recruiting persons to serve as police officers attached to a provincial police force, the respective Provincial Police Commissions arem a) to have due regard to the ethnic and linguistic ratios of the relevant province b) to give preference to applicants resident in that province c) to ensure that applicants can speak the predominant language of the people of the respective Province.

These provisions will ensure that the police officers in the north and east will be almost exclusively Tamil speakers and those in the south almost exclusively Sinhala speakers. Furthermore when the police force is compartmentalised and organised on provincial lines with no transfer of police officers between provinces, the drawing of battle lines will be complete. This is what makes provincial police training institutes all the more dangerous.

According to the provisions of the 13th Amendment, the nature, type and quantity of fire-arms and ammunition and other equipment for all provincial divisions were to be determined by the National Police Commission after ‘consultation’ with the provincial police commissions. The proposals of the present Subcommittee are that the Provincial Police shall be entitled to carry and use arms and ammunition that may be prescribed from time to time along with the respective quantity, by the IGP. When deciding on such a matter, the IGP is bound to consult the relevant Provincial Police Commissioners. Given what Sri Lanka has experienced, allowing provincial police authorities the final say in what kind of arms their police forces use is nothing short of insanity. This is a matter that should be decided at the national level and handed down to the provincial level.

On the face of it, it appears as if the Subcommittee has included in their proposals certain safeguards in relation to the provincial police force that were not seen in the 13th Amendment. For example, when a state of emergency has been declared in a province, the Inspector General of Police may bring one or more provincial police establishments under his direct command in order to effectively respond to the situation. If the IGP after having consulted the national police commission, the relevant provincial police commission and also having ‘afforded an opportunity’ to the respective Provincial Police Commissioner, has formed the view that there exists systematic and widespread insubordination, wilful violation or neglect of duties, mutiny or riotous conduct, or an attack on the unity, territorial integrity or sovereignty of Sri Lanka, he can with the sanction of the President, suspend the functioning of the relevant Provincial Police, and take steps to disarm officers of the relevant police. He shall thereafter, assign duties and functions of the relevant provincial police to be carried out by the national police force. He can withdraw the suspension when things return to normal.

The state of emergency

If the IGP following consultations with the relevant Governor, Chief Minister and Provincial Police Commissioner forms the view that it would not be appropriate to lift the suspension, he can with the sanction of the President, dissolve the relevant provincial police force and assign the national police force to cover their duties in the province. Following such a dissolution the IGP shall assist the relevant Provincial Police Commission, to reconstitute and activate the relevant Provincial Police. This looks like strong stuff, but means nothing in practical terms. The IGP has to ‘consult’ the provincial police commission and commissioner before deciding that there is a mutinous situation in a provincial police force. He can’t act on his own even if a break down in law and order seems obvious to him. Furthermore before he dissolves a provincial police unit, he has to consult the Governor (who under this new scheme of things will be an appointee of the chief minister) as well as the chief minister himself and the provincial police commissioner.

The mutiny of an entire police force is a serious situation. If any such situation takes place in Sri Lanka, the chief minister and his Governor as well as the provincial police brass will almost certainly be involved in the disturbances. Furthermore given the pusillanimous manner in which this government has reacted to incidents such as the attack on Sinhala students in the Jaffna university, it is only too plain that these ‘strong’ provisions will be just a dead letter. If an existing police force is to be disbanded and reconstituted, it will have to be reconstituted from within that same province, from within the same population. By what stretch of the imagination are we to assume that disbanding an existing police force and reconstituting from within that same provincial population will in any way improve matters?

Furthermore, all this talk of being able to even dissolve a provincial police force becomes nonsensical when looked at in juxtaposition with the recommendations the Subcommittee has made with regard to the declaration of an emergency. If a state of emergency is to be in force continuously for a period in excess of 3 months or for a period of more than 90 days within a period of 180 days, the extension of the state of emergency will require a ‘special majority’ in parliament. The Subcommittee has not specified what this ‘special majority’ is but they are convinced that a simple majority will not suffice to extend the emergency beyond a certain number of days. Furthermore, whenever a state of emergency is declared, any person may petition the supreme court challenging the declaration of emergency and even the emergency regulations. The supreme court can declare the declaration of emergency invalid and that the emergency regulations to be ultra vires.

The judicial review of declarations of emergency is not a practical proposition in any country. Declaring an emergency and taking steps to meet a difficult situation is the exclusive preserve of the executive arm of the state. The judiciary is not equipped to determine whether a situation warrants a declaration of emergency or not, just as they are not competent to alter emergency regulations because the judiciary does not handle day to day work relating to the maintenance of law and order. This is why there is a separation between the judicial, legislative and executive arms of the state. If the proposals put forward by the Subcommittee on Police and Law and Order ever see the light of day, this will facilitate the divisive agenda laid down by the Subcommittee on Centre-Periphery Relations.