Sri Lanka – Nation Building, Devolution & The 13th Amendment
By Lionel Bopage –
Dr. Lionel Bopage
Introduction
Sri Lanka is facing multiple crises – economic, political and cultural. How the government deals with these is crucial to the future of the country. The failed unitary form of government, in particular, the excessive powers of the executive presidency need to be curtailed. Devolution of power and a more equal balance between the executive, judiciary, parliament, bureaucracy and regions need to be renegotiated if we are to come out of the crises.
It is in this macro light that this paper should be viewed. However, this paper will not focus on the class based issues underpinning the national question, except to note that under neo-liberalism, differences in plural societies are utilised to prop up authoritarian capitalist governance systems that are beset with crises.
Nation-Building
Nation building is an evolutionary and long-term course of action, rather than a revolutionary and overnight process. It needs to develop and grow through an internal process, not via an external intervention or by an imposed agenda. It also needs economic, social, and political development as well as institutions that protect the fundamental rights of the people and communities. In addition, the nation-building effort needs to ensure equal access to jobs, education, and health for all among other things.
For long-term democratic nation-building to be successful, we need to recognise the importance of democratic values, within the civic sphere that will develop and sustain them; rather than just emphasising economic development or state-building. Currently we have only received rhetorical banalities from the political elite shorn of any real meaning of this crucial issue.
Decentralization
Decentralization is increasingly seen as a basic principle of democracy. A system of good governance needs people to have the ability to elect their own leaders and representatives to institutions that wield real power to respond to people’s needs. Grassroots movements have emerged championing it. This is not surprising as an overweening central power has repeatedly failed to meet the needs of the people as attested by the current economic crisis.
Political decentralization can empower citizens or their representatives engaging in decision-making processes. Greater participation is assumed to lead to better informed decision making that are more relevant to the plural societies like Sri Lanka. With political decentralisation, citizens will come to better know their representatives and in turn they will be more cognisant of the needs and desires of their electorates. For decentralisation transfers responsibility for planning, financing and managing certain public duties from the centre and its agencies to regional ones, thus making it more local and accountable. This can be achieved by de-concentration, delegation, and devolution of authority with each of these having their own characteristics.
It should be noted that centralization and decentralization do not need to be an “either-or” scenario. Practical examples around the globe have demonstrated that an appropriate balance of centralization and decentralization can ensure effective and efficient government service delivery. Centres can play a crucial role in promoting and sustaining decentralization efforts. This can be done by developing proper and effective national policies and regulations needed for decentralization, thus creating or maintaining the necessary enabling environments that allow regional, provincial, and local units to take on more responsibilities for undertaking new functions.
As a whole, genuine efforts at decentralization can cut cumbersome bureaucratic red tape. It can make local and national public servants more sensitive to local conditions and needs. Decentralization if done well, can allow political representation of diverse political, ethnic, religious, and cultural groups in plural societies in the decision-making processes. It can contribute to better political stability and national unity as citizens get access to better public programs at the local level. A growing number of countries have adapted federal systems, decentralizing some elements of government responsibility from the centre down to local government, as a means of giving different ethnic and regional groups some autonomy and control over their destiny.
The two uprisings in the south and the three decade long armed conflict in the north are examples that reflect the fact that if people are excluded from sharing any political power, they are more likely to challenge the legitimacy of the existing system. Federalism or devolution is a means of sharing power among diverse political entities irrespective of their ethnic or regional ties. Democracy will survive better if successes and burdens are shared fairly and equitably.
The current political system is based on ‘winner-take-all’ system, where one political party or group monopolise all the privileges and economic benefits. Devolution in contrast allows different ethnic and regional groups an ability to determine their own affairs, thus making them feel more secure. They may gain more confidence in and commitment to the existing system, and a general sense that the system is fair and inclusive.
Devolution
Historically, governments in Sri Lanka have tended to centralize all powers. Yet, the late 20th century witnessed an increasing global tendency to reduce central governmental power, by devolving power to the peripheral governing bodies such as state, regional, provincial and/or local bodies. Many countries in Europe, Asia, Africa and Latin America have adopted diverse devolutionary measures to empower their plural communities. In this regard, France in the 1980s and the United Kingdom in the late 1990s are the most appropriate examples. France was one of the most centralized states. All decisions of the régions, départements and communes from annual budgets to naming streets and schools had to be authorized by the central government under a system known as the “tutelle” (supervision). Due to the pressure the peripheries exerted on the central government; the François Mitterrand administration (1981-95) removed most of the authorisations needed in policy making matters[1].
In the UK devolution became a major political issue in the early 1970s, as Scotland and Wales demanded greater control over their own affairs. A referendum was held in 1979, to determine the people’s will for devolution. The electorate was needed to approve it with a two-fifths majority, but voters in Wales and Scotland rejected it. However, in 1999 under Tony Blair’s regime, power was devolved, Scotland had a parliament and later, Wales a Welsh Assembly. The Good Friday Agreement of 1998 provided Northern Ireland with its own parliament[2].
In Sri Lanka, proponents of devolution have been demanding clearly defined powers the Provinces can wield. During the Constitutional reform process under the previous regime led by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, the Chief Ministers of the seven ‘southern’ provinces asked for proper devolution as envisaged under the 13th Amendment. However, nothing came to fruition.
[1] Reiter R, Grohs S, Ebinger F, Kuhlmann S and Bogumil J 2010, Impacts of decentralization: The French experience in a comparative perspective, Ruhr-Universität; Published in French Politics 8(2010), 2, 166-189, Available at: https://d-nb.info/1078649812/34
[2] Baldersheim H 2009, Decentralisation in practice: European patterns and experiences, Ministry of Public Administration and Local Self Government, Available at: https://www.undp.org/sites/g/files/zskgke326/files/migration/rs/UNDP_SRB_Decentralisation_in_practice-European_Patterns_and_Experiences.pdf
*To be continued..
Sri Lanka – Nation Building, Devolution and the 13th Amendment – Part II
By Lionel Bopage –
Dr. Lionel Bopage
A historical perspective
Devolution in Sri Lanka is a story of missed opportunities. The armed conflict ended in 2009, but the political conflict has not. A settlement to the political conflict can be achieved only by offering a share of state power to all communities within a framework of democratic governance. Many Sri Lankans in the country and overseas are yet to be convinced of this requirement.
Sri Lanka is an overwhelmingly stagnating unitary state. In 2018, one of the former Auditor Generals stated that Sri Lanka was ranked the topmost country in terms of public sector misappropriation and corruption. The country’s parliamentary system has neglected its primary responsibilities of formulating policies, enacting laws and implementing transparent public financial systems. And the general public, ignorant of facts due to misinformation and deception, has repeatedly elected a set of crooks who have used ‘rule by law’, instead of ‘rule of law’ to maintain their autocratic rule.
All of these led to catastrophic consequences for the people in recent times. In 2022, the ‘ARAGALAYA’ protests ousted the last elected Sri Lankan President. With the severe shortage of essentials and defaulted debt payments, the country has encountered a poly-crisis. Despite the assurances made by the installed President Ranil Wickremasinghe, many people continue to suffer terribly. Those who can leave the country are leaving in droves, looking for greener pastures.
From schools and hospitals to the justice system and utility services, much of the country’s administrative functions have come to a grinding halt. Corruption, mismanagement, wastage, political patronage, and a lack of transparency and accountability that have prevailed for the last four decades contributed to a combined economic and political firestorm. The Rajapaksas, who are responsible for aggravating the crisis to its epic proportions are waiting in the wings to regain power by tacitly supporting the president they installed. They are rebuilding their chauvinist fundamentalist bases, utilizing whatever opportunities and resources they can get their hands on to divide the society and capture power.
District Development Councils – a history
In 1977, the JR Jayewardene regime introduced an open economy and provided commercial interests the opportunity to invigorate the private sector. However, this intensified social contradictions due to the general public not given opportunities to enjoy the positive outcomes offered by the expanding economy. Many, particularly among the Sinhala majority population, felt left behind. The Tamil people in the Northeast also felt frustrated as the economy opened up almost overnight to international competition. The importation of chilies, onions, staple foods, etc from India destroyed their major means of living – agriculture. They have been demanding better opportunities for upward social mobility and a greater share of national productivity growth.
This demand has a history running back to the days of the Legislative Council in 1926, where the possibility of a second tier of government was discussed. The issue was again discussed at the Donoughmore Commission of 1928. It had recognized the need for decentralization of powers so that much of the administrative work carried out at the centre could be performed more directly at the local level, leaving the government to concentrate on the macro affairs of running the country. The Commission also pronounced its proposals for Provincial Councils. Those proposals also suggested that “the special views of the different races predominant in the different parts of the island” might have an effect “in the administration of these parts.” Unfortunately, the recommendations regarding Provincial Councils were not implemented. This was possibly due to the opposition of politicians and bureaucrats, who were not willing to share their authority with those in the provinces or districts.
A large segment of the Tamil community increasingly felt the only effective solution to address their right to self-determination was to form their own autonomous state – Tamil Eelam. For this they gave an overwhelming mandate to their political leadership, the Tamil United Liberation Front(TULF), at the August 1977 General Elections. Socially, economically and politically the country was facing a chaotic and disintegrating situation. And the Jayawardene regime resorted to more authoritarian ways of enforcing its dictates. In 1981, the Jayawardene regime established District Development Councils (DDCs) for each administrative district as a supposed instrument of devolution.
However, the DDCs were politically toothless. They could not independently attend to matters under their jurisdiction as there was no separate administrative mechanism established to allow them to function. So, the DDCs had to depend on the bureaucracies of the local and central government agencies and resources to do their work[1]. In practice, this system helped the Sinhalese political elite to garner more influence in district administration, creating another state tier to muster and sustain political party patronage[3]. In addition, the Ministers of the then government overpowered the DDCs, impeding the activities that fell under their jurisdiction. If the JVP (Janatha Vimukthi Peramuna) experience is anything to go by, the DDCs did not have any powers of financial management. Frustrated with its incapability, the Chairman of the Jaffna DDC threw it away in July 1983[3].
The first remedy that allowed for devolution, since the unilateral abrogation of the Bandaranaike-Chelvanayakam (B-C) pact and the Dudley-Chelvanayakam (D-C) pact, was imposed under the auspices of the Indian Government in 1987. Since then, the Thirteenth Amendment has been in the Constitution for nearly three and a half decades without being fully implemented. Starting with the Jayawardene regime, all regimes have resolutely held absolute control over land and police powers. They even seriously restricted financial powers of Provincial Councils. This is despite many complaints made by the Provincial Councils that they do not have any real administrative control over their regions and do not have enough money even to buy the essential necessities of those councils.
History of constitutional amendments
Currently the executive, the legislature, provincial councils and the local governments of the country have about 10,000 elected and nominated representatives. They are supposed to address the socio-economic, political and multicultural issues of the entire country. However, the governance system has become a complete failure. Moving from crisis to crisis, the authoritarian, centralised, non-accountable governance system has plunged the country into the current poly-crisis. This system is accompanied by corruption, wastage, mismanagement, and impunity for those who commit terror and violence to protect the ruling elite. This debasement and mortification continue to prevail in every nook and cranny of the country.
Let us examine the last four amendments made to the Constitution of Sri Lanka. The good governance regime elected in 2015 enacted the 19th Amendment but was not fully committed to implementing it with sufficient responsibility and speed. Despite the election pledges made in 2015 to abolish the authoritarian powers acquired by the previous Rajapaksa regime, President Maithripala Sirisena and Prime Minister Ranil Wickramasinghe did not have the political will to bring it to fruition in any meaningful way.
This situation paved the way for the 20th Amendment enacted in 2020. It allegedly crippled the whole audit process that was there to ensure accountability and transparency to public financial transactions. A Parliamentary Council was to be introduced that could make observations regarding appointments to independent commissions. However, the president wielded total discretion in making those appointments. Later, the 21st Amendment was enacted to restore the executive presidency’s powers and perks taken away by the 19th Amendment.
Then the 22nd Amendment was brought intending to reduce certain powers granted to the president under the 20th Amendment by re-establishing a Constitutional Council. It, too, allowed the president to hold defence and any other portfolio he wished to hold. However, it did not significantly impact the powers vested in the President, as was evident from the now-President Ranil Wickremesinghe’s unpresidential behaviour during the last two years. Failure to curtail the excessive power in the executive presidency has proven to be disastrous for the country’s economy and the rule of law.
To be continued..
[1] De Alwis, R. K. 2009, History of and Prospects for Public Sector Reforms in Sri Lanka. 209, Unpublished PhD thesis, Victoria University of Wellington, Cited in Jayasundera S 2022, An uneasy hegemony: Politics of State Building and Struggles for Justice in Sri Lanka, 173, Cambridge University Press.
[2] Ibid, 175
[3] Sivathasan S 2013, Jaffna Development Council Election 1981, available at: https://www.colombotelegraph.com/index.php/jaffna-development-council-election-1981/
Part 1 – Sri Lanka – Nation Building, Devolution & The 13th Amendment
Sri Lanka – Nation Building, Devolution & The 13th Amendment – Part III
By Lionel Bopage –
Dr. Lionel Bopage
The 13th Amendment
The accord with India signed in 1987 was followed up with the enacting of the 13th Amendment. This established nine provincial councils within a unitary state, with limited legislative and executive powers. These councils became toothless tigers in that the executive president held powers to override any of the provisions the amendment empowered. This doomed the process even before it could be implemented. Since then, nationalists of almost all tendencies from the right to the left including the JVP, made every effort to place hurdles against any attempt at the full devolution of power.
Developments since the Accord
In 2003, Prime Minister Ranil Wickremesinghe’s administration offered a LTTE dominated interim administration in the North-East, however, the LTTE demanded an Interim Self-Governing Authority (ISGA). Under the existing unitary form of Constitution, this was not possible as some powers that were asked for could not be granted. Yet, negotiations could have continued to find some middle-ground. However, President Chandrika Kumaratunga took over the ministries of defence, interior and media held until then by the Prime Minister. President Kumaratunga also dissolved Parliament in 2004.
During the last phase of the armed conflict, President Mahinda Rajapaksa appointed an All Party Representative Committee (APRC) with a 17-member panel of experts to make specific proposals for a constitutional settlement of the conflict. However, a divided panel of experts produced a ‘majority report’ with eleven members favouring strong power-sharing, while other members disagreeing. The majority went on to state that the country’s multi-ethnic, multi-lingual, multi-religious and multi-cultural character be recognised, while safeguarding its unity and territorial integrity. It also proposed to recognise the peoples of the island as ‘the constituent peoples of Sri Lanka’ with every constituent having the right to its due share of state power. Its recommendations were ignored by the central government yet again making a mockery of the government’s commitment to devolution.
The Lessons Learnt and Reconciliation Commission (LLRC)
The LLRC appointed in May 2010 after the end of the civil war submitted their report in 2011 and made a number of extensive recommendations. The well-received report stressed the obligation to develop a political solution with the government taking the initiative by presenting its own thoughts in a formal proposal to address the causes of the national question through a high level national dialogue inclusive of the representatives of the minorities. It also emphasised that implementation of any power-sharing mechanism needs to be done within the broad framework of a sovereign, politically independent and multi-ethnic Sri Lankan state.
The Rajapaksa Administration repeatedly assured the international community, particularly India of its commitment towards a political solution. Despite this, like past regimes, it took no meaningful steps towards that end. Many attempts were made to dilute the 13th Amendment, against which there was opposition from some members of the UPFA itself. The regime tried to divert attention away by appointing another Parliamentary Select Committee. However, the Tamil parties and the UNP demanded that the government first put its position on a political solution on the table. The regime did nothing to address the issues that fuelled the armed conflict.
Indian factor
Sri Lanka reluctantly abided by India’s demand to accept the 13th amendment as the purported solution to the national question, as the ruling elites have been undermining any meaningful solution. The sad and inescapable fact was that the political elite and many of the left cynically used ethno-linguistic and religious differences to mobilize electoral advantage. As a result, in the south, there was intense opposition not only to the Indo-Lanka Accord, but also to the alleged Indian interference in Sri Lanka’s internal affairs.
Certain factions within the ruling United National Party (UNP), the main opposition Sri Lanka Freedom Party (SLFP), and the Janatha Vimukthi Peramuna (JVP) opposed both the Accord and devolution. The SLFP mounted a legal challenge to the Thirteenth Amendment. With the change of leadership to Mrs Chandrika Bandaranaike Kumaratunga, the SLFP adopted a pro-devolution position and strongly advocated for power-sharing in order to address the national question, as pertained to the Tamil community of North and East backgrounds in the island.
President Kumaratunga presented the Constitution of the Republic of Sri Lanka Bill in August 2000. The Bill proposed a non-unitary framework, and a clear division of powers between the Centre and the Regions with no concurrent list to dispute. However, due to the political manipulations, the Bill was not put to a vote. Manipulations for grabbing political power between the leaders of the SLFP and the UNP, and the chauvinist positions the JVP had taken towards addressing the unjust problems the Tamil community faced, resulted yet again in another missed opportunity.
The issue of devolution once again came to the front during the regime elected in 2015. A steering committee comprising all political parties represented in Parliament and chaired by the Prime Minister was set up to make proposals on prevailing constitutional matters including centre-periphery relations. The interim report presented to the Constitutional Assembly in 2017 covered subject matters including principles of devolution. Yet again it did not proceed due to the lack of political commitment and leadership.
Highlighting the escalating tensions in the north and east due to land acquisition for expansion of military installations, Buddhist heritage conservation at Hindu and Muslim sites, and forestry protection, India continues to press Sri Lanka on power devolution citing the “two guiding principles” of supporting both the aspirations of Tamils for equality, justice, dignity, and peace; and the unity, territorial integrity, and sovereignty of Sri Lanka. India is also concerned due to the ongoing lack of progress by the Sri Lankan government in addressing the issues the Tamil community have been subjected to, and has asked the Sri Lankan regime to “work meaningfully” to keep its promises. At the 54th session of the UN Human Rights Council India’s representative has asserted that:
“… progress on the same is inadequate and we urge the Government of Sri Lanka to work meaningfully towards early implementation of its commitments to ensure that the fundamental freedoms and human rights of all its citizens are fully protected …”
Prior to the 13th Amendment, Sri Lanka was a typical centralised and unitary state. Legislative power was exercised by Parliament, executive power by the President, and judicial power through courts. During the armed conflict, the Rajapaksa regime pledged multiple times, to provide a solution based on a 13th + (plus) arrangement. Yet, they were shrewd enough not to define it. It can come as no surprise that the Tamil youth turned to militancy to gain their rights as equal citizens.
Judicial interpretation
It is difficult to find a set of core constitutional principles that are coherently and judicially developed in relation to ‘devolution within the unitary state’. Legal challenges against the 13th Amendment and the Provincial Councils Bill were based on arguing that those were inconsistent with Articles 2 and 3 of the Constitution in that Sri Lanka is a unitary state, and the devolution proffered was an unconstitutional alienation of the sovereignty of the people. If the Supreme Court determined that devolution was materially affecting the unitary state and the sovereignty of the people, then the amendment can be validly enacted only if it was approved at a referendum as well as a two-thirds majority in Parliament. A full bench of the Supreme Court by a majority decision held that the Amendment did not require a referendum and once enacted by Parliament, the Provincial Councils Bill would be constitutional. Both the 13th Amendment and the Provincial Councils Bill were enacted in November 1987..
To be continued…
Sri Lanka – Nation Building, Devolution & The 13th Amendment
Sri Lanka – Nation Building, Devolution and the 13th Amendment – Part II
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Sri Lanka – Nation Building, Devolution and the 13th Amendment (Part IV)
By: Dr. Lionel Bopage
Part 4 (Link to Part 3)
Current Situation
The full implementation of the 13th amendment continues to be a controversial issue. The amendment is subject to opposition from both the south and the north east of the country. There are certain serious deficiencies with the current 13th Amendment model that need to be addressed in any future constitution. The 13th Amendment in the form it was enacted, has never been fully implemented, as many powers, especially land and police powers are yet to be devolved.
The political arena in Sri Lanka is, once again, abuzz with demands both for and against the full implementation of the 13th Amendment, even 45 years after its enactment. The nationalists in the south still argue that such devolution is too much and would lead to division of the country, whilst those in the northeast argue that there is not enough devolution. There is also the possibility that many politicians and their organizations have taken up this issue at this point in time due to the possible electoral vulnerabilities they are facing.
During the Gotabaya Rajapaksa presidency, there were assertions that certain provisions in the 13th Amendment were impractical and alternative solutions needed to be sought [Daily Mirror 6 Jan 2020, Some provisions in 13A impractical, alternatives should be sought: President; available at: https://www.dailymirror.lk/breaking_news/Some-provisions-in-13A-impractical-alternatives-should-be-sought-President/108-180835]. If police powers are in the hands of Provincial Councils, the police force will become politicised, he had said. So, to help solve issues caused by language and cultural differences, he wanted to appoint individuals from the districts to the police up to the rank of OIC.
Last February, some sections of the Buddhist Sanga/clergy demonstrated against the full implementation of the 13th Amendment. However, locally, internationally and on several occasions in joint statements with India, the government has recognised the necessity for meaningful power sharing as a way of achieving reconciliation among the peoples of Sri Lanka. The Tamil National Alliance (TNA), which advocates for a federal solution, wants the full implementation of the 13th Amendment, including land and police powers.
President Ranil Wickremasinghe did speak once about fully implementing the 13th Amendment. However, in the next breath changed his mind stating that he is committed to implementing the 13th amendment but without police powers, and that the Parliament needs to discuss its implications. His devoted supporters appear to go along with whatever position he takes. These pronouncements end up as mere political opportunism.
Last July, President Wickremasinghe called an all-party meeting and asserted that Sri Lanka should retain “its provincial councils with powers adequately devolved as provided for in the 13th Amendment to the Constitution, or abolish the PC system entirely” [Ref: EconomyNext July 27, 2023, https://economynext.com/sri-lanka-must-either-implement-13a-or-abolish-provincial-councils-president-126875/]. Samagi Jana Balavegaya (SJB) attended the all-party meeting, while a number of south-based political parties, including the National People’s Power (NPP) boycotted it. Yet again, decentralisation of land and police powers has become the Achilles heel of devolution of power in Sri Lanka.
The excuse given by the NPP, which represents a broad coalition of groups led by the JVP, for boycotting the meeting was that it was just a sham as the government has not ensured consensus within its own ranks over the issues relating to the 13th Amendment. According to the NPP, the President is utilizing this exercise to win Tamil votes to secure victory at the next presidential election. This happened even as some of the leaders of the JVP have expressed their vehement opposition to the 13th Amendment [Ref: https://www.adaderana.lk/news/88542/JVP-is-against-13th-amendment-handunnetti]. According to them, even the NPP does not accept the 13th Amendment.
However, both the JVP and NPP have a question to answer. If they accept that there are specific issues the non-majoritarian communities face due to their ethno-linguistic and religious backgrounds, and if they think the 13th Amendment does not address those issues, then it is their duty and responsibility to present the policy positions that they would be adopting to address those issues. Asking the non-majoritarian communities to wait to address their issues under a future JVP or NPP regime is meaningless; rather it would be much better to secure their support by advocating the policy positions with regard to the national question.
Another Truth Commission?
Once again, the Government of Sri Lanka has proposed a commission, this time under the title ‘National Unity and Reconciliation Commission’. Going by the past experiences of numerous commissions convened since 2005 on this subject, it is no wonder that many, including the victims’ families, have expressed grave reservations about this proposal.
Not a single commission appointed in the past has been effective in delivering truth, justice or reparation to the people who have suffered. The regime has not come out with any clarification as to how this time they would ensure the safety and a conducive environment for the commission to function effectively.
Structural issues
In the absence of clear structural arrangements at the provincial level, differences exist from province to province in how devolved powers are exercised. The Ministry of Home Affairs is the direct authority of Divisional Secretaries. They are also under the administrative supervision of District Secretaries. The Divisional Secretaries have no direct link with the Provincial Councils. Thus, they have to play a dual role, serving sometimes conflicting interests of the central government and Provincial Councils, making operations of a Provincial Council ineffective. This anomaly needs to be fixed.
All powers constitutionally provided under the 13th Amendment appear to be devolved to provincial councils, except for land and police powers. However, there have been other additional manoeuvres used, such as the application of non-transparent measures for controlling the finances required for the provincial councils to function efficiently and effectively.
As per the Supreme Court’s determination, if land power is a reserved subject and cannot be devolved, and police powers should not be devolved as it would compromise national security, then there is no way such a system could address the issues of the economic and law enforcement facing the non-majoritarian communities. Are we headed for another militant uprising of nationalities demanding their basic rights and freedoms based on their right to self-determination?
To be continued
Sri Lanka – Nation Building, Devolution and the 13th Amendment (Part 5)
Dr. Lionel Bopage
5 (Link to Part 4)
Police powers
Under colonialism, Sri Lanka’s policing and judicial system was developed to safeguard colonial privileges and interests. Since independence, this skewed system has continued with minimal changes, but with additional protections provided through enacting new legislation and otherwise, reinforcing the privileges and interests of the ruling elites. The need of the hour is to amend and democratise various Police Acts and Emergency Powers, and anti-terror legislation in the country so as to make those who implement such legislation more accountable and transparent. Nevertheless, the intrinsic nature of the devolution dialogue is that those opposed to devolution continue to remain silent on such aspects of the matter.
One argument raised against devolving police powers to provincial councils is that while a Cabinet Minister is in charge of the central police force [EconomyNext 3 August 2023, Sri Lanka parliament must discuss implications of devolving police powers: FM; availalble at: https://economynext.com/sri-lanka-parliament-must-discuss-implications-of-devolving-police-powers-fm-127300/] police units in each province being controlled by different chief ministers, are more likely to become politicised. Another reason cited is that if police powers are devolved the national security of the country would be compromised. In fact, the politicization of police started in the 1950s, i.e., three decades prior to the establishment of provincial councils, with the Bandaranaike regime employing police units for violently suppressing the democratic right to peaceful protest – particularly during the ‘satyagraha’ campaigns led by several Tamil leaders. This political, ethnic, and religious manipulation of the police force has now expanded to massive proportions.
The Department of Police became an object of ridicule a long time ago due to its attitude of pleasing the political masters of the day and their goons. Rather than performing their professional duties, the police officers are compelled to yield to the demands made by the political goons and thugs who give illegitimate instructions to carry out. If the officers resist the wishes of the politicians or the actions of their goons, then they will be penalized for doing their duty. When the National Police Commission was functioning, this situation became slightly better. But when the politicians realised that the Commission and its members were not yielding to their requests for transfers etc, the politicians came forward to change the constitution itself!
This is evidenced by the way the political elite and bureaucrats have employed police units and other security forces to fulfill their whims and day-to-day needs. Sri Lanka has been exposed to this type of politicisation from the days of Presidents Mahinda Rajapaksa and Gotabhaya Rajapaksa and now under President Ranil Wickremesinghe. This was particularly visible when the Rajapaksa-cum-Wickremesinghe regime used violence against the island wide Aragalaya campaigns last year to hound some of the protest leaders and lock them under harsh conditions for longer terms utilizing political and judicial manipulations. Hence, saying that the police force will become politicised if it is decentralised to the nine provinces is a moot point.
Police powers remained centralised throughout the last 75 years of post-independence, during which the Police have supposedly been maintaining public order. However, it was mainly due to political and religious interference in maintaining public order, particularly in the north and east, and also in other areas where diverse non-majoritarian communities are resident, the situation became much more than problematic. This situation led to many conflicts and a war both in the south and the north of the country. Last year there was a news item reporting that police transfers, particularly higher-level officers, are made to electorates in response to requests made by the political authorities of those electorates.
If devolution of police powers is unacceptable because of the potential for political interference in maintaining public order, how do we address safety and security concerns in areas inhabited by non-majoritarian communities? To make the system better, the way police appointments and transfers are made, and complaints made against the police are dealt with, needs to change. Such changes can be implemented through panels of independent personnel who possess wide experience and knowledge in law, management, human relations, social services, etc. And the independent personnel could be drawn from the judiciary and experts of law, in consultation with the Chief Justice of the land. The independent Police Commission needs to be truly independent and impartial! The establishment of a separate impartial and non-partisan authority to handle complaints against police is also necessary.
Notably, it was only last week that President Ranil Wickremesinghe disregarded a recommendation made by the Constitutional Council with regard to the third service extension [The morning 20 October 2023, Prez appointing IGP despite CC veto: Oppo. wants CC to seek AG’s advice on its powers, https://www.themorning.lk/articles/u1ug8bcrCeRX5aJslnRM] provided to the Inspector General of Police. These types of incidents highlight the need for establishing a separate independent and non-partisan authority to handle complaints against police.
An independent non-partisan National Security Authority (NSA) to handle appointments of top security brass including those of the police can strengthen this process. It should have responsibility and accountability to supervise investigative functions, including providing facilities for crime investigation. However, it should not have the power to interfere in cases that are under investigation. The NSA could also be authorised to be an appellate authority to record and handle complaints about illegal or irregular orders or political meddling. This could be done by any of the higher bodies subject to public scrutiny and will allow better accountability.
For community participation in policing, police administration needs to be more transparent, accountable, and participatory. This has never been the case in Sri Lanka. Since the 1950s, the situation has worsened. Police harassing and intimidating the Tamil-speaking civilians continues to this day. The precarious way of bending laws by the police and the judicial system to suit the whims and fancies of politicians and other authorities endures. The lack of sufficient staff to record and deal with complaints made by Tamil civilians in majority Tamil speaking areas remains a major obstacle for improving community relations and reconciliation.
Since the mid-fifties, the escalation of state-led pogroms, violence, and terror by thugs and security forces witnessed an increased police involvement in harassing and intimidating Tamil civilians. Prior to the Tamil militants launching terror attacks against the Sinhalese and other civilians in the south, there had been many instances in which Tamil civilians were slaughtered. The instances of brutality with which the police and security forces behaved against the Sinhalese in the south had been too many. There were occasions when entire villages, including the elderly and children, were wiped out without any impunity. How could one expect such a security force to behave in a more disciplined way against the non-majority communities?
It is in this context that the devolution of police powers needs to be looked at.
Land powers
The 13th Amendment has land powers on its concurrent list. However, the centre has a dominant role over land through powers vested in the centre when dealing with national policies and urban development. The centre also managed the process of releasing crown land. Any land release requires the President’s approval upon request made by the relevant provincial council. Such alienation is also subject to several other special provisions relating to irrigation and development matters.
Provinces are further disadvantaged because the constitutional provisions stipulate a National Land Commission as the sole authority in formulating the National Land Policy. Those against devolving land powers to provincial councils argue that despite the prevailing understanding of it as a devolved subject, the Supreme Court has ruled otherwise. It has determined that “State Land shall continue to vest in the Republic”. The court’s interpretation was that a provincial council can utilize “State Land” only upon the centre making it available to the provincial council. This implies that a provincial council cannot appropriate state land unless the centre has made that land available to the council for its use.
Recently, President Wickremasinghe stated a National Land Commission will be appointed. Developing a National Land Policy is complicated as some advocate land should be vested in the provincial councils. However, some others argue that land must be allocated only for agricultural cultivation and business use. Sri Lanka can gain from the experiences of models used globally in this regard, for example in India, Canada and Australia. India’s land powers are fully devolved to the periphery. Every Indian state has legislation in dealing with their land matters.
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