Despite the 13th Amendment’s (13A) return to the political stage and assurances by the President that a solution to the issues faced by minorities will be addressed by the 75th Independence Day (4), little progress has been made regarding the enforcement of Police and land powers listed in the amendment, The Sunday Morning learns.
According to Ministry of Public Security Secretary Viyani Gunathilaka, discussions among Government stakeholders on decentralisation of some of the Police powers to the nine provinces remain at preliminary stages. When asked if the Government had established a timeline for such a programme, Gunathilaka would not comment except to say he would be better informed on the process later in the month.
No finality yet
When contacted, Minister of Justice Dr. Wijeyadasa Rajapakshe said that no finality on the devolution of Police powers had been reached at the recent All-Party Conference (APC) and that the matter remained to be discussed further.
It is understood that the Government is looking at appointing nine Senior/Deputy Inspectors General (DIGs) to the nine provinces with one Senior DIG (SDIG) appointed to the metropolitan sector, who is envisaged to be empowered in a coordinating role for the provinces.
“There was no finality on that [at the All-Party Conference]. When a National Police Commission (NPC) is established, they can draft a policy on law enforcement. That is an independent commission. We can consider something like that, a policy brought by them [NPC], or decide on following another method,” Rajapakshe opined.
President Ranil Wickremesinghe, responding to concerns raised by a Member of Parliament about the implementation of Provincial Police Commissions in line with the 13th Amendment, said that if there was no agreement on such, a constitutional amendment would be needed to establish an NPC instead, adding that one of the two needed to be expedited.
“The measures that will be taken in this regard could be presented to the Parliament on 8 February. If there are any suggestions, they could be made before 4 February so that they may be considered and submitted on 8 February, the President had told the All-Party Conference,” the President’s Media Division (PMD) has said.
35 years of reluctance
Land and Police powers listed under the provincial list of the 13th Amendment have not been implemented by any government over the last 35 years since the legislation was introduced to the Constitution following strong pressure from India.
Over the last three decades, the security establishment and mainstream political parties in the south have strongly resisted the devolution of Police powers to the provincial councils. Such sentiments remain strong, despite the armed conflict ending in 2009.
The lacklustre efforts of the major parties to fully implement the 13th Amendment and the reluctance of the security establishment on the matter also underscore long-held insecurities regarding the faultlines of Sri Lanka’s ethnic fabric and the inability of successive post-war governments to build a national identity for Sri Lanka.
The logistics and chain of command concerns regarding moving some of the Police powers to the provinces have also caused considerable concern and resistance from within the ranks of the Police Department. Further, some senior officers are concerned as to how their long-established political networking will be impacted if the proposed measures are fully implemented, The Sunday Morning reliably learns.
Last week, the proposed full implementation of such powers by President Wickremesinghe once again drew opposition from key Buddhist religious leaders and some politicians.
Speaking to The Sunday Morning, Sri Lanka Freedom Party (SLFP) General Secretary Dayasiri Jayasekara expressed reservations regarding the 13th Amendment’s Police powers.
“We think the full implementation of 13A is viable and we support it, but there are some reservations. Key issues regarding full implementation are Police and land powers. We believe that the Police Commission should oversee the Police in all nine provinces. We feel that a chief minister of a province should not have the powers to transfer any Police officers or order them to do this or that. The administration of the Police should not be a politically-motivated exercise,” Jayasekara said, calling for discussions at party level on the issue and a robust monitoring and command mechanism if some Police powers were to be delegated to the provinces.
This comes in the backdrop of Indian External Affairs Minister S. Jaishankar’s visit to the island last month, where he had conveyed India’s “considered view” that the Government should fully implement the 13th Amendment, adding that the move would help the reconciliation process. Last week, visiting US Under Secretary of State for Political Affairs Victoria Nuland, who met the President and members of the minority parties, called for concrete action from the Government on reconciliation measures.
No tangible progress
Speaking to The Sunday Morning, Tamil National Alliance (TNA) MP M.A. Sumanthiran stated that although President Wickremesinghe had promised full implementation including Police and land powers as per the 13th Amendment, there had been no tangible progress.
“The President had told visiting US Under Secretary Nuland that he would fully implement 13A. However, we have seen no concrete action on the matter,” Sumanthiran said, adding that the Ministry of Justice had not updated him regarding the proposed National Lands Commission nor the Police powers transfer.
Tamil United Liberation Front (TULF) member Kanagalingam Sivajilingam, commenting on the full implementation of Police and land powers in accordance with the 13th Amendment, questioned why the majority Sinhalese leadership of the south were afraid of power sharing.
“It is because the 13th Amendment was not implemented that the war took such a turn for the worse. Eight Executive presidents have failed to fully implement 13A. Even after the war, Maithripala Sirisena and Gotabaya Rajapaksa failed to enact what’s in the Constitution and what the Supreme Court has given a ruling on. So how can trust and peace be built? Why can’t they give the land and Police powers? The Supreme Court has said it won’t impact the unitary nature of the country. What are they afraid of? Why are the Sinhalese leaders afraid of power sharing?” Sivajilingam questioned.
“If they don’t share power, a foreign power may intervene and force its implementation like in the 1980s. The Sinhala leadership must decide what outcome they want. Do they want to continue as a unitary state with power sharing or do they want to move down a road that will lead to a divided country?” Sivajilingam warned, adding that in Scotland and Montreal, Canada, where there were power sharing models in place, multiple referendums of leaving the union had failed.
Sivajilingam said his personal opinion was that the time for the 13th Amendment had passed and that a new constitution was needed. Commenting on the issue of Police powers, Sivajilingam opined that the semi-federal model in India had provided some Police powers to each state, which had not led to secession or fragmentation of the union of India.
Implement the Constitution
When The Sunday Morning spoke to Northern Province Governor Jeevan Thiyagarajah, he echoed the President’s sentiments that the full implementation of the 13th Amendment was essential.
“Quite simple – the Executive is obliged to implement provisions provided for the benefit of people. It is essential and obligatory. Full implementation requires that we give effect to the provincial list in schedule nine of the 13th Amendment. It requires we place statutes and regulations to enable the provisions and derive the benefits. Since the 13th Amendment became law, we should be ready to do so. The impact [of the 13th Amendment] is wholly positive. We must own it in that spirit and find consensus on the use of Article 154 provisions in the Constitution,” Thiyagarajah opined.
When asked if he saw any challenges in enacting Police and land powers to the provinces, Thiyagarajah said: “I see no great challenge. We give effect to what is in the Constitution. At the province we determine four uses for land. The rest the centre determines. The commissioner handles all land awards once it comes through divisions, district, and provincial mechanisms. For provincial awards, the Governor has to concur. On Police matters, we have a seamless process between the Police Department, IGP, SDIG, and the Governor in the absence of a chief minister.”
Reject the 13th Amendment
Ahila Ilankai Thamil Congress (AITC) Leader and Parliamentarian Gajendrakumar Ponnambalam told The Sunday Morning that his party rejected the 13th Amendment, pointing out that it had not been implemented for 35 years and was “not even the starting point of power sharing” in his view.
“When it comes to devolution, there are matters that cannot be left to the opinion of the government in power. Today, Ranil Wickremesinghe can say ‘we want to do something’. The next may come to power and say ‘no, we don’t want anything to happen’. Unfortunately, the 13th Amendment is a legal instrument that leaves those uncertainties in place. The Supreme Court has ruled that the 13th Amendment is well within the unitary characteristics of the State. The unitary status ensures that all powers are vested in the Executive, the Cabinet, and Parliament; it also ensures that there is no devolution, only decentralisation of power. It means that what Colombo wishes, happens,” Ponnambalam explained, adding that 13A brought the perception of devolution, but it was only power sharing.
“Even with regard to Police powers, the vast number of those who will make up the Police Commission will be appointed with the President’s blessings. My view of some of the parties in the south objecting to the 13th Amendment is that it is not an issue with the law; they may have a problem with India and they may be seeing 13A as an extension of India’s hegemonic designs. They think that 13A secures India’s national interest,” Ponnambalam opined.
The law
According to Attorney-at-Law Jayampathy Wickramaratne, PC, not all Police powers will be devolved under the 13th Amendment, with the Supreme Court finding that the unitary characteristics of the Sri Lankan Constitution have not been adversely affected by the legislation.
“It is within the Constitution that the powers are devolved and, of course, if someday the Parliament decides, those powers can be negated. The 13th Amendment can be abolished at any time, unlike a federal system where you need the consensus of a majority of units to do so. As to the Police, even under 13A, there will only be one Sri Lanka Police. The Sri Lanka Police will continue to be one force or department. Even now, there are 10 or 12 divisions; they will continue, with provincial divisions clearly marked with some powers. The powers are all laid down in the schedule (13A). The arms and ammunition to be used by the provincial Police is decided by the centre. There will be a DIG in charge who will be answering to the IGP,” Wickramaratne explained.