The combined effect of the provisions is that devolving police powers to the provincial councils would not become a threat to national security.
by Arulanantham Sarveswaran
The all-party conference on reconciliation and the 13th Amendment to the Constitution and the visit of the President to India have generated arguments with regard to the implementation of the 13th Amendment, in particular, devolving police powers to the Provincial Councils.
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| Sri Lankan Police officers are trying to control the protesters against the government in Colombo [ Photo: Thilina Kaluthotage ] |
However, an analysis of the provisions of the 13th Amendment with special reference to Appendix I to the Provincial Council List explains that the Central Government has control over the Provincial Police, and devolving police powers to the Provincial Councils would not become a threat to national security.
National security
Provincial Police deal with the maintenance of public order within the province, and the members of the Armed Forces deal with the country’s national security. The 13th Amendment clearly states that national security will not be devolved to the Provincial Councils. The Central Government, in particular, the President, could deploy the Armed Forces in any part of the country, and the concurrence of the Chief Minister of the Province is not required for such deployment (Provincial Council List, Para 1; Appendix I, Para 1; Schedule to Appendix I, Second Item in the Reserved List).
Provincial Deputy Inspector General of Police
The Inspector-General of Police (IGP) is the Head of the Sri Lanka Police Force. According to the 13th Amendment, the IGP shall appoint a Deputy Inspector-General of Police (DIG) for each province with the concurrence of the chief minister of the province. The word ‘concurrence’ binds the parties, and the Provincial DIG cannot be appointed without an agreement between the IGP and the chief minister. If there is non-agreement between the IGP and the chief minister, the National Police Commission (NPC) shall appoint the Provincial DIG after due consultations with the chief minister. The word ‘consultation’ is different from the word ‘concurrence’ and the word ‘consultation’ is not binding in nature. Therefore, the NPC could appoint the Provincial DIG even without an agreement with the chief minister (Appendix I, Para 6).
Provincial Police Commission
The Provincial Police Commission shall be responsible for recruitment to the Provincial Police Division, and for transfers, promotions and disciplinary control over provincial police officers. A Provincial Police Commission consists of three members: the Provincial DIG, a person nominated by the Public Service Commission in consultation with the President and a nominee of the chief minister.
As discussed above, when there is non-agreement between the IGP and the chief minister of a province, the NPC would appoint the Provincial DIG. Therefore, in a situation where non-agreement exists between the IGP and the chief minister, the Provincial Police Commission would have the DIG appointed by the NPC, a member nominated by the Public Service Commission, and only one member nominated by the chief minister. This means that two of the three members – the majority — of the Provincial Police Commission are nominated by the Central Government, not by the Provincial Government (Appendix I, Para 4).
Firearms and ammunition
The nature, type and quantity of firearms and ammunition and other equipment that could be used by the Provincial Police Division shall be determined by the NPC after consultation with the Provincial Police Commission. In this provision, the word ‘consultation’ has been used. Therefore, the concurrence of the Provincial Police Commission is not needed for the NPC to determine the nature, type and quantity of firearms and ammunition and other equipment that could be used by the Provincial Police Division. (Appendix I, Para 8).
Offences under the Provincial Police
The Schedule to Appendix I provides the offences which would come under the National Police. According to the Schedule, the offences including the offences relating to the State, national security, Navy, Army, Air Force, essential services, state property, public officers, elections, subject matters reserved to the Central Government, any offence in respect of which the courts in more than one province have jurisdiction and international crimes would not come under the Provincial Police (Schedule to Appendix I).
Declaration of emergency
All police officers in the National Division and Provincial Police Division shall function under the direction and control of the DIG of the Province. The DIG of the Province shall be responsible to and under the control of the chief minister in respect of the maintenance of public order within the province. In this provision, the words “function” and “direction” have not been used, and the words “maintenance of public order” narrow the scope of the provision.
However, upon declaration of emergency within a province, the President may assume the powers and responsibilities of the chief minister and the provincial administration in respect of the maintenance of public order within the province. Therefore, upon declaration of emergency within a province, the DIG of the province and the police officers within the province would come under the control of the President. Also when a state of emergency is declared within a province, the IGP may deploy the National Police within the province for the maintenance of public order (Appendix I, Paras 11; 11.1; 11.2; and 12.3).
Conclusion
As explained, the powers of the Provincial Police would not include national security; the Provincial DIG would be the person appointed by the NPC when there is non-agreement between the IGP and the chief minister in the appointment of the Provincial DIG; only one member of the Provincial Police Commission would be the nominee of the chief minister; the NPC would decide the nature, type and quantity of firearms and ammunition and other equipment that could be used by the Provincial Police Division; many offences including the offences relating to national security would not come under the Provincial Police; after a declaration of emergency within a province, the Provincial DIG and the police officers within the province would come under the control of the President; after the declaration of emergency within a province, the IGP may deploy the National Police within the province to maintain public order. The combined effect of these provisions is that devolving police powers to the provincial councils would not become a threat to national security.
Prof. Arulanantham Sarveswaran is a Senior Lecturer, Department of Private and Comparative Law, Faculty of Law, University of Colombo and a member of the Expert Committee appointed by former President Gotabaya Rajapaksa to draft a new constitution.
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