Devolution of Police Powers

by M.A. Sumanthiran, MP, The Island, Colombo, February 9, 2012

The government has responded in multiple and contradictory ways to the position of the Tamil National Alliance that powers over law and order, including powers over police, should be devolved to the provinces. The President himself has stated openly that police powers cannot be devolved, only to contradict that position when he assured Indian Minister of External Affairs S.M. Krishna that he intends to move towards “a political settlement based on the full implementation of the 13th Amendment to the Sri Lankan Constitution, and building on it, so as to achieve meaningful devolution of powers.”

However, despite Minister Krishna’s statement going uncontested by the government at the time it was made, the President has now attempted to distance himself from that commitment. The government is aware that the 13th Amendment includes provisions for the devolution of police power. What then is the government’s position? The TNA has, in contrast, consistently asserted the need for powers over police to be devolved.

Constitutional Requirement

The Sri Lankan constitution requires that a measure of police power be devolved. The constitution specifically requires that a Provincial Police Force be established for every Province. The provisions of the 9th Schedule – which sets out the allocation of devolution under the present Constitution - are unambiguous, with “Police and Public Order” featuring prominently as Item 1 on the Provincial List.

Implementing the provisions of the existing Constitution – which the President, Ministers and MPs swear a solemn oath to uphold and defend – is not a matter for political posturing. The failure to act as the Constitution demands ought to be a matter of concern for those of any political stripe, regardless of their views on the merits of devolving police power. Plainly, it evinces a complete disregard for the supreme law of the land that is illegal, unacceptable and downright dangerous. It should be a matter of embarrassment therefore that we must rely on the words of a high ranking official from a friendly neighbouring country to be assured that our own Constitution will be implemented in full. However, now that these assurances have been made, the President and government must demonstrate good faith by delivering on them. The history of the ethnic conflict is one of broken promise after broken promise, and the government must not invite a repetition of history.

Moreover, a whole host of past proposals for constitutional reform – the 1995, 1997 and 2000 proposals, as well as the majority report of APRC’s Expert Committee - have recommended that police powers must be devolved to the provinces. The APRC’s Expert Committee was in fact directly appointed
by the President himself. The unanimity with which these proposals have recommended devolution of police powers only points to the fact that moderate Sinhala opinion is united in the view that police powers must be devolved. The congruence between the positions of moderate Sinhalese and moderate
Tamils presents an opportunity that cannot be squandered on account of the posturing of extremists.

Reason for TNA’s call

It is with this in mind that I venture to briefly present the reasons behind the TNA’s call for the devolution of police powers. The desire of the Tamil people that police powers be devolved is not a recent one. In fact, it predates the rise of militant groups and must be answered.

First, devolution of police powers is a necessary corollary to meaningful devolution. Provincial Councils must have the power to enact laws and approve regulations that are suited to the specific needs of the Province. For example, the social problems caused by the large numbers of orphans, single mothers and
widows in the North and East will require the recruitment of a large number of Tamil speaking women officers. This is a problem that is specific to the region, and requires local solutions. Just as we would never approve of a politician from Mannar controlling the functioning of the police in Matara, there is no reason as to why politicians from Colombo must have exclusive powers over police in Muttur. The provincial executive also must have the necessary independence from central control to give effect to and implement regional laws and regulations. It is essential therefore that a substantial measure of powers over police be vested in the province, so as to enable the implementation of regional laws. A police force that is tasked with implementing provincial laws, but is not accountable to it, will defeat the purpose of devolution. A lame duck Provincial Council that is unable to implement its own laws is perhaps even worse than the absence of any devolution.

Second and importantly, devolution of police power is essential to rebuilding police – community relations in the North and East. The Tamil people’s alienation from state power has been most acutely felt when the ruptured relationship between the police and local communities in the North and East led to spirals of violence. Multiple pogroms against the Tamil people where the police either participated or colluded through inaction; the application of the draconian Prevention of Terrorism Act and similar Emergency Regulations; the use of the police force in cracking down on dissent ; the widescale torture and abuse of detainees and prisoners; the denial of language rights to Tamil speaking peoples in police stations; and the overwhelmingly Sinhala composition of the police force have collectively contributed to this feeling of mistrust. When Tamil lodgers were forcibly evicted from Colombo and bussed to the North and East suddently one morning in May 2008, it was the police that implemented the decision to
cleanse Colombo of Tamil lodgers.

Tension between police and people

These issues are multi-layered and complex and have been perpetuated over many decades. Tensions between the police force and local communities result in an atmosphere of fear and resentment. This tense atmosphere sometimes leads to outbreaks of violence and sometimes severe acts of brutality. Most recently, the Grease Devil phenomenon where local communities took the military and police to task for harbouring and assisting assailants resulted in severe violence. These incidents function as an early warning of the consequences of failing to resolve police – community tensions. If a repeat of history is to be avoided, the culture of resentment that characterises police – community relationships must be fundamentally transformed. This ruptured relationship between the police force and local communities also impedes the efficient functioning of the police force. Effective policing requires public cooperation. The objectives of battling crime and
creating a peaceful society can never be possible without strong, effective bonds of trust between the police force and local communities. The experience of the last six decades, whether in peacetime or war, is that these relationships cannot easily be restored. The police are almost always the first point of contact with the State for those who find themselves in a crisis. The very nature of their work requires the police to be in constant contact with those in desperate states of vulnerability. Thus, decision makers within the police must be those with an intimate understanding of a given community’s specific needs and problems. For instance, decision makers within the police must be knowledgeable about and
respectful of informal dispute resolution arrangements that prevail in certain rural areas in the North and East. The devolution of police powers to the Province will enable a transformation of police – community relations and will lead to greater police sensitivity to local concerns and thus lead to a restoration of normalcy and amity in those relations. Ultimately, the handing of powers over police to a
tier of government closer to the people is necessary to ensure that Tamil speaking communities are given a measure of power over decisions involving security and law and order, which is essential to insuring against further conflict and violence.

Moving beyond colonial paradigm

Third, the idea that hyper-centralized control of the police is necessary to protect security in the country is in fact an outdated feature of colonial rule. The paradigmatic example of strong, central control over law and order was and remains the Public Security Ordinance – a colonial piece of legislation designed to
ensure control over ‘natives’ by the Governor General. The decimation of communities in the South during the insurrection by the state security apparatus was another manifestation of the colonial conception of the police force. Thus, if we need to move beyond a colonial paradigm in law and order governance, we must dispense with the idea that a strongly centralized police force is synonymous with the effective protection of law and order. It is time to recognize that this model has failed us, resulted in bloody armed conflict, and is incongruous with any notion of a dignified peace. Strong central control over police has contributed to the denial of Tamils’ right to enjoy the fruits of independence from
Western colonial powers and must be checked.

Fourth, the arguments made against devolution of police power are overstated and often wrongheaded. One type of concern expressed often is that the devolution of police powers will result in disorder and chaos. This is misleading. The devolution of police power does not mean the exercise of unfettered
police power. Nor does it mean the oppression of regional minorities. The courts and an independent body to regulate the provincial police force must be vested with sufficient power to curb abuse by the police. Moreover, the Bill of Rights must be strengthened to protect individuals against the police. The TNA opposed the passage of the 18th amendment in the strongest terms because we are opposed to the weakening of independent public institutions. Ultimately, given the nature of Sri Lankan politics, a provincial police force is more likely to be brought under the oversight of the judiciary and independent public institutions than is the case with a highly centralized police force with a politically powerful hierarchy.

The myth that the devolution of police powers will lead to secession is as fanciful as it is ludicrous. There is no Tamil political party in Sri Lanka that is even remotely interested in dividing the country. For our part, we are clear that a durable solution to the ethnic problem must be found within the contours of a
united Sri Lanka. That aside, that line of argument ignores that it was disillusioned youth – often unemployed and angry – who have resorted to violence against the State, whether in the North East or in the South. To suggest that lower level and middle level officers entrenched in the local bureaucracy
would attempt to resist a trained military is absurd.

Thus, devolution of police powers is desirable for a number of reasons. Fundamentally, it is a necessary corollary to meaningful devolution in other areas; essential to restoring community – police relations; necessary to undoing the harmful colonial legacy in the governance of the police and finally, is perhaps
the most effective way of curbing police excesses. Since a measure of devolution in relation to police powers is part of the existing Constitution, and since many past proposals for constitutional reform have highlighted the necessity to further devolve police powers, there is no excuse for the failure to do so.