Worrying over devolution of Police powers?

 The provincial authorities must bear in mind that the misuse of PPs would force the engagement of military might to which PCs cannot object 

Tamil politicians who demand PP as reconciliation must remember retrospectively, the events that occurred in Trincomalee in September 1987, which displaced the Sinhala community, killed the China Bay head priest, and even Tamil citizens, and how communities suffered under Chief Minister Vartharajah Perumal’s Police Force, supported by the Indian Peace Keeping Forces, and thereafter under the LTTE Police. Such happenings, especially with an avatar of Selvam in the hot seat would invariably block State intervention, as we experienced during the ceasefire 

President Ranil Wickremesinghe’s recent statement on devolution showed he realised that granting Police Powers (PP) to Provincial Councils (PCs) is too sensitive an issue and suggested it be left on the back burner for a later date. The 13th Amendment (13A) minus PP would relieve him from the devolution saga pressed by the Tamil National Alliance (TNA) and the Indians, although he denied Indian pressure. Knowing the consistent Indian attitude on devolution, I do not fall into such denial mode and instead refer to my writings on links: https://island.lk/jaishankar-means-victory-of-lord-shiva/and https://island.lk/crisscrossing-13a-abolition/ to prove my conviction. 

Local and Indian political complexity

President Wickremesinghe uses ‘devolution’ to garner the TNA’s support. Historically, power sharing demands were less during the early years (S.W.R.D. Bandaranaike era). It increased after Black July. For instance, politicians M. Sivasiththamparam and A. Amirthalingam pressurised the Indians, even demanding ethnicity-based alienation of Mahaweli allotments, of which many of us are unaware, but is true. The Liberation Tigers of Tamil Eelam (LTTE) enlarged the demands vastly. 

Indian politicians such as, Natwar Singh, S.M. Krishna, P. Chidambaram, currently Dr. Jaishankar, and almost all Indian PMs after 1983, and bureaucrats like J.N. Dixit, Romesh Bandari, G. Parthasarathy, and now Secretary Kwatra, toiled for devolution in Delhi, Colombo, and Geneva, not intending to give up. It should not be forgotten that for PM Modi, devolution and Lankan Tamil rights mattered to win elections in South India, especially in Tamil Nadu. 

The Lankan Tamil politicians intensified their political demands, language rights, expanding to law and order and land, devolution (13A), self-determination, federalism, etc. The Lankan leaders promised 13A, 13A minus Lands and PP, and later 13A plus. When President Wickremesinghe was PM, Prof. G.L. Peiris agreed with the LTTE, (Oslo Declaration), “to explore a political solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a united Sri Lanka,” surely with the PM’s blessings. 

President Wickremesinghe who supported the Oslo agreement inclusive of ‘internal self-determination’ having serious legal implications, ‘historical habitation of Tamil peoples’ confronting most Sinhala radicals, ‘federal structure’ rejected for decades, and previously all PC-related legislations, now deny PP to Provincial Councils (PC). As all previous failed devolutionary proposals, the current option may also gather dust, superimposing failure. To honour promises, he requires success in a non-existent, proverbial “ flda÷re f;,a" y;amÜfÜhs" ;j álla ”approach! (Seven packs of Konduru oil, and a little bit!). 

If the President’s other reforms i.e., district-based institutional arrangements, provincial governance participation of parliamentarians, etc. are implemented they would negate original devolutionary principles and may face opposition.

Concurrently, Sri Lanka Muslim Congress (SLMC) leader Rauf Hakeem demands separate consultations with the Government about Muslims. During the pre-13A consultations with the Indians, there was consideration for a Muslim PC in the East, minus the Ampara electorate, and the merging of the North and the East, sans Ampara. What does the SLMC anticipate now?

Historical experiences of PPs

Tamil politicians who demand PP as reconciliation must remember retrospectively, the events that occurred in Trincomalee in September 1987, which displaced the Sinhala community, killed the China Bay head priest, and even Tamil citizens, and how communities suffered under Chief Minister Vartharajah Perumal’s Police Force, supported by the Indian Peace Keeping Forces, and thereafter under the LTTE Police. Such happenings, especially with an avatar of Selvam in the hot seat would invariably block State intervention, as we experienced during the ceasefire. Due to such incidents, ‘anti-PP sharers’ do not consider the TNA’s moves as ‘unintentional.’ Certainly, President Wickremesinghe is aware of this.

The TNA relentlessly demands PPs, probably considering PPs to genuinely ease the Tamils’ law and order status, and easily conduct public interactions, now crushed under the jackboot, and safeguard their rights by themselves. This was well understood by successive governments and therefore, the blame for the denial of PP does not fall only on President Wickremesinghe, because his predecessors too were sceptical about PCs handling PPs.

I wish to quote two references to prove this:

Western PC (WPC) demanding PP

On 6 January 1994, Chief Minister Chandrika Kumaratunga moved that PP be devolved to the WPC under the Police Commission Act No: 1 of 1990. She thought it would pave the way for a more democratic law-and-order administration. (WPC Hansard page 13). She was probably unaware that this Act was passed to delay devolving PP. 

On receipt of the WPC Resolution, President Wijetunga discussed it with me since I was the Secretary to the Ministry of PCs. I asked him whether he wished to devolve PP to the WPC.

“What nonsense? It would create pandemonium if PPs are devolved to the PCs. Tell me a valid reason to reject this request,” he demanded. 

The preparedness of the TNA, the Tamil community, the Diaspora, and the Government to be detached from extremist separatist politics and the fear of such constructions respectively is important. The provincial authorities must bear in mind that the misuse of PPs would force the engagement of military might to which PCs cannot object. Hence, they have to cooperate. Whether the cooperation is forthcoming is a matter of future consequences

I advised him, “Excellency, you can convey that it will be considered after appointing the National Police Commission. Until then there is no way to appoint a Provincial Police Commission.” This was conveyed to Madam Kumaratunga, and the request was sealed.

Later on inquiry, it was revealed that PC Member Susil Premjayantha stated as follows: “The Commission will comprise the Provincial Deputy Inspector General of Police, a nominee of the Public Service Commission, as advised by the President, and a person appointed on the recommendation of the Chief Minister. The powers and duties are mentioned. There is no reason to entertain grave fears about devolving PP. Once this Commission is appointed to a Province, it will perform on matters regarding appointments, transfers, and disciplinary matters.” (WPC Hansard page 42). 

The challenge now for the President is to express the same idea, which will not happen, as he does not favour devolving PP to PCs, unlike then, when Madam Kumaratunga demanded PP devolution. Later President Kumaratunga was President for around 11 years, but neither she nor Susil Premjayantha showed any interest to devolve PP. 

Demanding PPs for the North Central PC (NCP)

The same request was submitted to President Wijetunga by NPC Chief Minister G.D. Mahindasoma. Again, President Wijetunga discussed it with me, and I said, “Excellency, he is from your party. Though you disagreed with the WPC, there is no restriction to share PP with the NCP after appointing the National Police Commission. The Police Commission Act has provision to appoint Provincial Police Commissions on a staggered basis.” His response shocked me. He thought it would be ‘dreadful to devolve PP to Chief Minister Mahindasoma,’ and predicted the potential chaos that would occur.

I believe, all Presidents from J.R. Jayewardene to the incumbent Ranil Wickremesinghe were politically troubled as regards the 13A.  

Differing political stance on PP

The discussion at the WPC, when the Resolution was debated, is more revealing. 

United National Party (UNP) Councillor Titus Wimalasiri said, “Sometimes we observe certain foreign elements helping terrorist groups through some Sri Lankans. Mr. Deputy Chairman, the submission of this Resolution creates suspicion due to these foreign influences and foreign actions, whether there is some contract to strengthen the hands of Prabhakaran in the north and whether there is a conspiracy.” (WPC Hansard page 28) In reality, what happened was that President Wijetunga’s stance was confirmed by Councillor Wimalasiri. If Wimalasiri is with the UNP now, he will stand with President Wickremesinghe and repeat what he said. 

Councillor Wimalasiri further said, when the Police Commission Act was debated in Parliament, the parliamentarians said, “We are totally against this Act; the unitary status will be erased in the country; and, especially PP should not be given to PCs.” (WPC Hansard page27) Councillor Mahinda Samarasinghe then argued similarly quoting parliamentarians S.L. Gunasekara and Dharmasiri Senanayake (WPC Hansard pages 51, 53). 

The question is why should a party that demanded PP at the time Prabhakaran was fighting, obstruct to PP sharing when Prabhakaran and the LTTE are no more. Since political, social, and security environments have positively changed, their stance must also change for reconciliation. On the other hand, why does the UNP that introduced the 13A hold a partially adverse stance now? Is it political opportunism?

Provincial Councillor Felix Perera pointed out that there were even conceptual differences. He maintained that the Police are not a ‘Force.’ It is another department, he said. He hypothesised that proper implementation of PP in the WPC will be a lesson for other PCs to emulate. “If we think logically and consider that someday peace would be achieved in this country, I see it as a problem, if there is a need for Hon: Councillors in this House to oppose WPC receiving PP.” (WPC Hansard page 48) If he is with the Pohottuwa now, he can challenge the party secretary Sagara Kariyawasam, with this argument.

The question is why should a party that demanded PP at the time Prabhakaran was fighting, obstruct to PP sharing when Prabhakaran and the LTTE are no more. Since political, social, and security environments have positively changed, their stance must also change for reconciliation. On the other hand, why does the UNP that introduced the 13A hold a partially adverse stance now? Is it political opportunism?

Nevertheless, then UNPers such as, Mahinda Samarasinghe, the WPC’s Chief Opposition Whip, blew hot and cold saying: “That is why at the outset I said we are not against the implementation of the Act. What we are saying is that the timing is not correct” (WPC Hansard page50). It appeared reasonable too. Now, the UNP cannot settle for such, because environments have improved positively, but they should stand with the Leader. It is thus clear there had been duplicity, on variable pretexts, due to the PP phobia! 

Will provincial police gulp the central PP legally?

A major paradox to consensual thinking is the fear that the devolution of PP would endanger the constitutional authority of the police. Some argue that the devolution of PP to PCs would weaken central police investigations. They do not explain that scheduled offences such as those related to the State, the tri-forces, elections, money, stamps, state capital and assets, national security, international offences, etc. in 13A, Appendix I are administered by the National Police only, and not by Provincial Police. 

Appendix I states: “The cadre of officers and other ranks of each Provincial Division shall be fixed by the Provincial Administration with the approval of the National Police Commission, having regard to the area of the province, population and such other criteria, as may be agreed to or prescribed.” [Appendix I–7 (a), (b), (c)]. It directs that the principles and salaries, shall be uniformly determined by the Government (Appendix I–7:2). 

The impression created by anti-PP-devolutionary critics and many media reports is that PP sharing would empower the Northern/Eastern PCs to recruit police officers, at its will. Fear and emotion are instilled saying such recruits might be ex-LTTE cadres. It’s humorous that a Government that is recruiting rehabilitated ex-LTTE cadres to the army fears recruiting policemen, from among them. 

The impression created by anti-PP-devolutionary critics and many media reports is that PP sharing would empower the Northern/Eastern PCs to recruit police officers, at its will. Fear and emotion are instilled saying such recruits might be ex-LTTE cadres. It’s humorous that a Government that is recruiting rehabilitated ex-LTTE cadres to the army fears recruiting policemen, from among them

It would be farfetched to believe that the North and East Chief Ministers can override the constitutional powers enjoyed by the Governors, and the PCs Act, intervening through statute-making and budgeting/financing of provincial institutions, with the Finance Commission participation which would assist in PP administration. 

Appendix I-8 lays out: “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 Commission, and uniform standards and principles shall be applied for all Provincial Divisions.” But, the belief is that the Provincial Police Service will unilaterally and haphazardly arm itself, challenge the security forces, and overthrow the Government. Critics ignore the failures of the LTTE and our defence forces’ capacities. 

Another notion is that the Provincial Police cadres will be trained in arms in the manner the LTTE cadres were trained. Though Provincial Police Divisions can recruit the criteria based number of officers, training is done by the National Police Division. (Appendix I– 9:2) Even the uniforms are decided at the centre (Appendix I–10). 

Many are disturbed by Appendix I–11:1 wherein the Provincial DIG is “responsible to and under the control of the CM” to maintain public order. Critics ignore the fact that indirectly the final appointing authority of the DIG is the President. 

It should not be forgotten that Appendix I–11:1 is subjected to qualifications in Appendix I–11:2 that provide for the President to “assume such powers and responsibilities of the Chief Minister (CM) and the Provincial Administration in respect of public order within the Province as he may, by regulation, provide.” One may counter-argue that such an order has an ‘expiry date of 30 days’. Repeating orders in instalments until the problems are solved would be the easy way out, in such an event.

If a more serious situation arises due to “grave internal disturbance” it is possible to act under the Public Security Ordinance, as per Appendix I–11:2 (b) where the President assumes the Chief Minister’s powers and responsibilities upon declaration of emergency. The military has the power to act in an emergency. Appendix I–12:1 to 12:4 arranges for further actions in managing Provincial Police by the National Police and the Attorney General. 

Critics forget the normal powers of the President to engage the military under difficult circumstances, and the inability to question the President’s action in any Court when based on the Proclamation under Article 154J. They little realise that the Government is reinforced against separatist demands by the engagement of security forces anywhere in the country, on grounds of potential threats. 

Conclusion 

Under these circumstances is it fair to be scared of provincial police gulping down the central PP? The issue is, with all these constitutional provisions intact, the LTTE proved the laws unworthy. This is the constraint for sharing PP. However, since these fears are persistent, it would be essential to formulate clear guidelines for central and provincial operations, by identifying in advance the role of the National/Provincial Police Commissions, if PP is to be devolved.

We must understand that PCs are an arm of the State, and the system requires sharing and not biased power grabbing. And the PC authorities must be ready to accept the existing legal provisions and not attempt to grab political power in the name of PP devolution. 

The earlier quoted events with the LTTE are registered in Government authorities’ records and psychologically block orchestrating faith. Further, if laws can straightforwardly safeguard the State from vulnerability, one may argue why the TNA does not demand changes to such legalities, unfavourable to PCs. The suspicion in many is whether what is in law would be permitted implementation, once devolved and cannot be withdrawn. The creation of confidence and faith, that lacks considerably, is essential in unmistakable terms for whatever devolution to happen. 

The preparedness of the TNA, the Tamil community, the Diaspora, and the Government to be detached from extremist separatist politics and the fear of such constructions respectively is important. The provincial authorities must bear in mind that the misuse of PPs would force the engagement of military might to which PCs cannot object. Hence, they have to cooperate. Whether the cooperation is forthcoming is a matter of future consequences.

PCs should not try to force the State to the wall if proper devolution is to happen. The latter is a great challenge, especially since the North and East PCs wish for competition with the State rather than cooperation. Therefore, compromises would be essential for the success of PP devolution. The finality may depend on the best dialogue creating faith between the centre and the periphery. I wish the Tamil community and parties are ready for it. If not PP sharing will be a wild pipe dream. I am inclined to think that President Wickremesinghe foresees negativity and worry, and keeps PP out of his scope for now. 

(The writer is a former Secretary to the President)