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DEVOLUTION OF POLICE POWERS TO PROVINCES:
SOME CONCERNS
By Gamini Gunawardane
Rtd. Snr. DIG
Few weeks ago, Mr. Udaya Gammanpila, in an article to the Divaina,
had expressed his reservations regarding the prospect of giving police
powers to the Northern and Eastern Provincial councils under the 13th
Amendment. Those were mainly on political implications. The purpose
of this article is to raise some issues regarding some policing problems
that may arise in devolving police powers not only to these two provinces,
but to all the provinces.
There was no occasion for a proper in-depth discussion on this aspect
in the past since there was no real attempt to give effect to the devolution
of police powers to the provinces since the passage of the 13th Amendment
as, probably advisedly, Mr. J.R. Jayawardane and all his successors
upto now, did not venture into giving effect to this provision. Now
that such a prospect is being actively discussed, this may be the appropriate
time to look at these issues.
The first is basically a conceptual issue. That is, under a unitary
constitution, is it conceptually possible to devolve the function of
internal security and maintenance of law and order, to Chief Ministers?
Let me explain.
Law and order and internal security in the country are a fundamental
pre-condition necessary for all other activities. Economic, political,
social and cultural activity could take place in a community only in
a secure environment. For that matter, even the basics of life, food.
clothing and shelter could be enjoyed by a person only if one could
have them in a secure environment. Thus, maintenance of law and order
becomes a fundamental responsibility of governance. That may be the
reason why the subject of defence and internal security, is a subject
that is kept directly under the President and earlier, under the Prime
Minister, under the previous constitutions. It is thus a basic/core
responsibility of the head of state, in governance. Therefore, it could
be construed as an 'inalienable' responsibility.
This means a question of accountability, for the preservation of law
and order in the country lies on the government and more specifically,
on the Head of State. He is primarily accountable to the people of the
whole country for peace, law and order. Hence, is it practical or legitimately
possible for him to devolve this accountability to some others who are
not accountable to him? Thus, could it be a devolvable subject?
The question is, how can he be accountable for a responsibility that
is passed on to
somebody who is independent of him and over whom he has no effective
or direct control?
On the other hand, control of law and order function from the center
may well be the very essence of a unitary concept. It may well be an
essential characteristic of a unitary concept. In fact, it may be one
of the very purposes of the unitary concept.
Perhaps, this is a matter that could be addressed by constitutional
experts.
The problem does not end here. We have to also examine the responsibility
of the IGP, the Head of the Police in the country, in this light. Under
this Amendment, is he responsible for the policing of the whole country?
Or is he responsible for the non devolved subjects of policing only?
If so, through whom does the President exercise his responsibility and
accountability for the other aspects of law and order, especially at
the territorial level? This question becomes pertinent because, the
DIG of the province is held 'responsible to and under the control of',
the Chief Minister(Sec.11:1). The Defence Minister / Minister of Internal
Security will have 9 Territorial DIGs to deal with who are not directly
accountable to him through the IGP. The IGP and his HQ. DIGs and Directors
will be mere service providers. Thus, the chain of command becomes unclear.
This is very dangerous when it comes to critical situations.
According to sec 2 of Appendix 1.of the 13th Amendment, The IGP remains
the head of the Sri Lanka Police Force; but his Police Force is now
divided into two Divisions viz.,
(a) National Division, (b) Provincial Divisions. The IGP has the power
to appoint the DIG to head the Provincial Police, but that too with
the concurrence of the Chief Minister. The DIG however is accountable
to the Chief Minister. Not only that, he will also be under the control
of the chef Minister. Now where is the Territorial Command of the IGP?
What is he responsible for, beyond the appointment of the DIG whom he
cannot remove without the Chief Minister's concurrence? Even if he continues
to have countrywide responsibility, what is his mechanism to exercise
such authority?
One could imagine how serious the implication of this situation could
become if the DIG starts 'playing ball' with the Chief Minister; if
they start scratching each others backs. We saw a glimpse of this somewhere
in the late '80s or early '90s where the DIG of the Southern Province
became so intimate with the Chief Minister that the DIG obtained overseas'
leave from the Chief Minister and left to Australia to spend a holiday!
There was nothing that the IGP could do from his Police Head Quarters.
This incident pinpoints the crux of the problem. What controls does
the IGP have over his Provincial DIGs who are under the control of the
Chief Ministers? He will thus be made to look a fool.
This situation becomes further complicated when the Chief Minister happens
to be a member of a political party that is different to that of the
President / Minister of Defence/ Internal Security. If the hostility
between the government party and the opposition party becomes acute,
the Chief Minister could make things difficult to the Defence Minister
in so many ways, to make him appear ineffective. This is seen happening
in so many other spheres too. For instance, during the last UNP government
times, some of the provincial transport ministries were not co-operating
with the Central Transport Authority on the implementation of policy
in relation to the private buses, obviously to create dissatisfaction
of the commuters towards the central government. Similarly, there are
so many instances where the provincial hospitals do not get medical
supplies on time so that the provincial government falls into disrepute
with the people. This is probably done with a view to impress on the
people why it is necessary to elect to the provincial government, candidates
of the political party that was currently in power at the center. But,
security is so critical to human life that it cannot be left to petty
politicking by politicians of the center and the periphery.
This brings us to a more serious problem. The Chief Minister is a local
politician. Though it is true, as the theory goes, he being a man of
the area is more sensitive to the needs of the people, for the same
reason he could have vested interests closer home. He could easily get
involved in more parochial issues. In such a situation, if the DIG and
the Chief Minister would become a duo, scratching each other's backs,
the people will be much worse off than now. I am thinking of the allegations
of land grabbing, sand mining, organized gem mining and timber racketeering
that is being made against local politicians and police officers. The
other end of the spectrum is that, under the unitary police structure,
the IG's Central Vice Squad could strike anywhere in the country without
the concurrence of the Chief Minister or any politician for that matter.
Often, it could be that the miscreant was the chief campaign financier
of the Chief Minister himself. Thus, however corrupt it may be at present,
the fact that the DIG is a part of the central police chain of command
reporting through the Inspector General to the Defence Ministry which
is away from the local situation, enables some degree of space needed
for objectivity, which is a core necessity in the enforcement of the
law. This is a far more satisfactory arrangement that should not be
lost. This could be a form of check and balance between the central
and provincial governments. In fact, it was common knowledge among police
officers that people in Jaffna in the olden days, preferred a Sinhala
police officers to inquire into their complaints because they were not
involved in the local parochial issues.
Conversely, among some of my best officers were Tamils, Muslims and
Malays by birth. I immediately recall Inspector Bastianpillai, SI prambalam
and Sgt. Balasinham who were the first CID team to be killed by the
LTTE in the Madhu jungles, off Mannar. I think, they were three jewels
of the CID. Their loyalty to the CID and devotion to duty was par excellence.
All these people asked nothing more than fair play. What is obtaining
today is political patronage, favours and punishments. My concern is
that fair play will be made a further far cry in the proposed climate
both for police officers as well as for the people.
This problem has been highlighted in a study on the Indian State Police
too. In the case of the Indian situation one would imagine to be not
so bad because any Indian state is several times larger than entire
Sri Lanka both geographically and in terms of population. Yet, one could
not forget how the IGP of Tamil Nadu behaved under Chief Minister M.G.
Ramachandran whenever his police arrested Sri Lankan Terrorists. He
was virtually a lump of clay in the hands of the Chief Minister. They
eventually paid the price for this when they suffered the ignominy of
loosing their one time Prime Minister to the same people whom they so
nurtured. One could then imagine how grave the problems could become
in a micro situation here, where every body knows every body else. Thus,
in the final analysis, People will be worse off. Strangely, in Public
Policy Planning in this country, People are the last concern, if at
all!
Talking of the People, in fact, did any body consult the People who
are the voters whether they ever wanted devolution of police powers
to the Chief Ministers or not? If consulted, it is highly unlikely that
any law abiding citizen would want a puppet DIG of a politicized provincial
police who took orders from the Chief Minister, to guide their destinies.
The kassippu dealers, illicit gem miners, sand miners, timber racketeers
and drug dealers and their ilk certainly would. It is bad enough already
that even under a unitary system the STF is removed from the Batticaloa
District on the eve of an election and against the peoples' wishes.
The Head is also changed on the grounds that he, a specialized officer,
on the pretext that he had been too long in that organization. The same
Police Commission, who stopped the transfer of some other officers out
of the Eastern Province because it is on the eve of the elections, does
not see anything wrong in moving out the STF and its Head. And, lo and
behold, no sooner than the STF chief was replaced, the STF flounders
with the security of a Minister, to end up in disaster. It is hoped
that it was only a coincidence and not the outcome of a bad decision.
But it remains a simple Management principle that you don't change riders
while on the run, unless there are compelling reasons. This also shows
how critical such decisions are. One could then imagine how much worse
law and order maintenance would become under a provincial set up.
Again, there is the problem of parochial considerations in a small
community within a province where invariably everyone knows everyone
else and sometimes distantly related too. All these factors go to defeat
the purpose of impartiality that all these measures are expected to
bring about.
I will now give an instance to illustrate my point. Long years ago,
when I was a young ASP, a sub-inspector in charge of a police station
in my district was interdicted and charge sheeted for assaulting a villager
who came to him to make a complaint. Such disciplinary inquiries are
held in the Police Department before a panel consisting of the inquiring
officer, another police officer and a respected member of the public,
to look after the interest of the complainant and of course, to ensure
fair play. At the end of the inquiry, the inquiring officer and the
other police officer decided to find the SI guilty; but the gentleman
from the public hotly disagreed. This was not because he had been bribed
by the SI but because he had been approached with a sheaf of betel !
Anyhow, the two police officers found him guilty with the gentlemen
disagreeing. On the strength of this, the SI's appeal to the PSC was
upheld and he was re-instated. And the first thing that the SI did was
to don his uniform, get on his motor cycle and do full round in his
former police area. He stopped opposite the complainant's house, hooted
at him saying "Ado, Umba Kolaada mata?" ("Hey, what could
you do to me?") I felt sad for the complaint for the double injustice
he suffered. This is what proximity and familiarity could to impartiality.
Needless to say that in a local situation, when one is deciding the
fate of the local police officers, affecting their life and career,
the kind of power and influence a member of the Provincial Police Commission
would wield, and Disraeli's famous saying "power corrupts"
etc. etc.
Nonetheless, it may be that Mr. J.R. Jayawardene, who was responsible
to introduce this Pandora's Box of the 13th Amendment, under Indian
pressure of course, himself saw this danger of excessive local parochial
interest which may come into play. He probably intended to reduce this
ill effect when he always made it a point to appoint a person from outside
the province, as Governor. But, as he himself would have noted, that
was of little help as most of the power lay with the Chief Minister.
The 13th Amendment provides for a Provincial Police Commission (Appendix
I, sec. 4.) . It will be a body of 3 persons comprising 1. The DIG of
the Province, 2.A nominee from the PSC appointed in consultation with
the President and, 3. A nominee of the Chief Minister. A hard nosed
police officer who has seen this drama enough and more, would remark
" Naduth pansale, baduth pansale! ( The judge & the complainant
are the same)-"emo judex in causa sua". The DIG now serves
in this appellate body, judging his own case. Besides, the DIG, here
is a person appointed in consultation with the Chief Minister.The PSC
nominee too is appointed in consultation with the President. He would
invariably be a retired senior public servant resident in the province.
The 3rd Member is a nominee of the Chief Minister. They are the people
who will decide the transfers, promotions and disciplinary control up
to the SSP ! Imagine the DIG who has become an acolyte of the CM, the
PSC nominee who is an acolyte of the President and another nominee of
the CM sitting in judgement! My old driver orderly would remark "
Nariyata bokka hodanta dunna wage, neda sir?( This is untranslatable.)
Now what kind if justice would the Police officers and the people get
in return?
My belief is that, it is our obligation to hand over this country to
the next generation, in a better condition than was handed over to us
by our predecessors. We have no business to it hand over in a worse
condition.
Another provision in the 13th Amendment is that, in the matter of a
major public disorder or a break down of law & order, the central
government could intervene only with the consent of the Chief Minister.(Appendix
I sec. 11.1. (b) ) What if the chief Minister would not consent? Judging
by the petty minded conduct of today's politicians, it is not an impossibility.
It could be that the chief Minister himself or his supporters could
well be behind the break down of law & order. One is reminded of
what happened in the local government elections in Wayamba sometime
ago. Will the local DIG or the SSP dare pull down the election posters
& cutouts of the chief minister or his cohorts?
Even if none of these conditions prevail, how long would it take for
the central government to intervene and restore order? Here is an example
of how efficient it could be under a centralized policing system in
this country. In the year 1981or 82 a serious conflict erupted in Galle
between the Muslims and the Sinhalese. No sooner than the violence broke
out, I who was in Colombo being thrown out of Galle, courtesy the then
District Minister, was given just half an hour to go back to Galle and
restore order. I left my breakfast halfway and rushed. Almost at the
time I reached Galle, Several Ministers and the Secretary Defence arrived
there by helicopter and proceeded to the Galle Kachcheri for an emergency
meeting. While at the meeting we could see through the windows, Galle
Bazaar going up in flames and the meeting was abandoned. The big wigs
beat a hasty retreat after taking a look at the mayhem, leaving me the
SSP to handle their baby. I asked the Defence Ministry for fire engines
from the Colombo Municipality, which was then an unprecedented step.
By evening the fire engines were at work. I requested IGP to give back
some of my men who were earlier thrown to different places, who knew
all the miscreants in the city like the back of their palm. By next
morning I had them. They picked up the trouble makers from their holes.
The arsonists and looters were rounded up. Gen. Hamilton Wanasinghe
(Later, Army Commander & Secy. Defence) who was then a colonel,
brought an army contingent to assist. Order was restored within 10 days.
Now, my point is that all these quick moves were possible under the
centralized system which facilitated it. Would it be possible in a provincial
policing arrangement where the Chief Minister's consent is required
to declare a state of emergency? Will it become necessary for the UN
to pronounce that this is a case for R2P!
The situation could also be serious if the centre will not want to
assist, if the party in power at the center, is different from the party
to which the Chief Minister belonged. It may be that the centre may
want to capture power in the province by encouraging public protest
against him, through lukewarm response to his requests, like what the
government is doing to the Bribery & Corruption Commission by transferring
officers playing critical roles, to cripple the organization. Thus,
the situation as it is, is bad enough. If it is watered down further
by weakening the system some more, one could imagine the levels to which
law and order could descend. It is perhaps a human weakness to see only
what is bad in the present predicament and to ignore its merits. Here,
I am reminded of what my grandfather used to often say: "wadi pada
gahanta giyoth, thibba padeth nethiwenawa." ( if you try to do
too many things, you might loose even what you have achieved already")
Here is another aspect of the matter. It is best explained with an
example.
During the JVP violence in the in 1988 as DIG Central Range I had a
good deal of information on what was going on the Peradeniya University
campus. There was ample information that several sectoral leaders of
the Movement were operating from the Halls of Residence. I decided to
conduct a massive search of the campus. I conveyed this intention to
the IGP since I wanted additional strength and perhaps Army assistance.
The IGP, Mr. Cyril Herath rejected the idea. I was angry, at the loss
of the opportunity to capture some important operatives. But later I
realized that he would be seeing the overall picture in the whole country
and looked at the possible implications of such a move at that time.
Had I been reporting to the Chief Minister at that time, I could have
convinced him on the need to conduct the raid at that time as both he
and I would have been seeing only the local situation and not the larger
picture. These are some of the critical issues that could escape the
grasp of the legislators and law framers. It is on such occasions that
one realizes the beauty of the Police Ordinance and the Penal Code introduced
by the colonial rulers, to well suite their requirement and not to satisfy
other people.
This again is more a conceptual issue. Under this Amendment, 'exercise
of police powers' is devolved as per sec.1 of Appendix 1. Now, the 'police
powers' are set out in the Police Ordinance and the investigative and
prosecution powers & procedures are set out in the Code of Criminal
Procedure. And we were taught that the basic police powers possessed
by the IGP up to recruit constable of yesterday are no different. The
differences mainly lie in the exercise of administrative power over
the different ranks at different levels. The basic Police power exercisable
by all ranks is that a police officer is on duty at all times and exercises
his powers in any part of the country. So, could the exercise of police
powers be devolved any further than what has been done in 1876 when
the Police ordinance was enacted? Could these basic powers of a police
officer be conceptually circumcised ? If so how?
Then what is the devolution of police powers that is sought to be achieved
here? The only possible answer is that, it is the administrative power
over the policeman on the ground who is expected to enforce the law
without fear or favour. Then, the devolved power that is sought here,
is the power to abuse the enforcement of the law. It is the devolution
of the power to make political use of the police powers in a politicized
police environment. The only devolution of police power that really
needs to be done is to depoliticize the police which will allow the
policeman on the ground to act according to the law that he is already
empowered with. The only safeguard that is necessary is to put in place
an effective mechanism to minimize police corruption. If ever this is
done, one can rest assured that there will be no more clamour for devolution
of police powers!
But it is not to be. When the 13th Amendment states shamelessly that
the provincial DIG "shall be, responsible to and under the control
of the Chief Minister" and that a nominee of the Chief Minister
will be a member of the provincial police commission, all pretences
of an impartial police are removed crudely. The police department is
rudely stripped naked and made into a private security service of the
politician, in this case the Chief Minister. In fact, it already is.
But there was at least a thin veil of pretence akin to modesty. Now
it is no more. This marks an end of an era for the Police Service in
this country as we had known it for the past 125 years. Hence forth,
it will be political police service.
These are some of the principal issues that shrike my mind. But there
is a whole range of other issues which will be too laborious reading
in an article like this. It requires serious study by professionals
and academics.
However, it must be said that though devolution of police power is not
advocated, decentralization under the centralized command is desirable.
Here too, much of the police command structure is decentralized already.
Further decentralization of financial authority & accountability,
and command over the decentralized specialized functional arms could
be looked at. However, the co-ordination at the top and accountability
to the IGP and by him to the Defence Ministry is a must for the proper
maintenance of law and order in the country. This had so far been taken
for granted because of its unitary structural excellence introduced
by the British. The provincial DIG could certainly be answerable locally,
to the Chief Minster on maintenance of order in the province, but the
decision of posting Police officers from the rank of SSP downwards and
their transfers and promotions could not be left to the politicized
provincial agency. I such an event, the people who supported the opposition
political party will have to live in another province, till they get
their turn!
About the writer
Gamini Gunawardane
Took a MPA degree from John F. Kennedy School of Government, Harvard
University, U.S.A. in 1989.
He spent another year at the Center for Criminal Justice of the
Harvard University, on a Fulbright Research Fellowship, researching
on policing, and produced, in 1990, a research thesis titled: A SEARCH
FOR A NEW CONCEPT OF POLICING, FOR SRI LANKA.
He has addressed several audiences in different parts of U.S.A.
on policing problems in Sri Lanka and, has met several contemporary
American experts on policing. He has visited several State and City
Police establishments in the U.S.A., including New York Police Department
and in Hong Kong & Singapore .
He was engaged on further research on policing, in India, at the
Center for Policy Research, New Delhi, and at the Jawaharlal Nehru University,
New Delhi in 1992, and produced a research thesis titled: THE PROBLEM
OF THE POLICE DEPARTMENT BEING AN INSTRUMENT OF THE GOVERNMENT.
.
He served Police Department for 35 years and retired prematurely, on
a matter of principle, in Nov. 1998, as Senior Deputy Inspector General
of Police (Crimes, Criminal intelligence and Organized Crime).
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