by K. Godage, ‘The Island,’ Colombo, August 3, 2013
There has been an intense and animated public debate re the matter of Provincial Councils, and not just that of the Northern Province, exercising police powers and on the issue of land. I set out below for the benefit of the public an analysis of these two subjects relating to the 13th Amendment as understood by me.
The Provincial Council list includes the subject of ‘Police and Public Order’. On the other hand, it qualifies this subject by saying ‘public order and the exercise of police powers’ to the extent set out in the Appendix (13th Amendment 9th Schedule), and what does Appendix I say? That the Inspector General Police shall be the head of the Sri Lanka Police Force which shall be divided into the National Division and a Provincial Division for each Province. The Provincial Division shall be headed by a Deputy Inspector General of Police seconded from the National Service. The DIG will be selected and appointed by the IGP. The IGP is empowered to appoint a DIG for each Province with the ‘concurrence of the Chief Minister of the Province’; but if there is no agreement, the President after due consultation with the Chief Minister, will make the appointment. The Chief Minister is of course granted the privilege of being consulted!
Recruitment to the Provincial Police will be made by the Provincial Police Commission composed of three members, namely the DIG, a person nominated by the Central Public Service Commission in consultation with the President and a ‘nominee of the Chief Minister’. The Central Government will be responsible for the training of all recruits.
The responsibility for the preservation of public order will be responsibility of the Provincial Police. But here too, the prevention, detection and investigation of any offence against any public officer and any offence prejudicial to national security or the maintenance of essential services, shall be outside the competence of the Provincial Police Division. (13th Amendment, Schedule to Appendix I )
Such offences though committed within the Province, will fall within the jurisdiction of the National Police Division and will continue to be enforced within the Province by the National Police Division under the direct control of the IGP.
It is made out that the DIG himself “shall be responsible to and under the control of the Chief Minister”; is this correct? If it is, this is absolutely unacceptable and is not in the interest of the citizens of our country, All other Police Officers in the province will function under the control and direction of the DIG of the Province. The D.I.G. shall be seconded from the National Division and selected by the IGP and if the Chief Minister disagrees with such selection he could then appeal to the President. The DIG will be under the disciplinary control of the IGP and will be employed on terms and conditions determined by the Central Government.
Though it is stated that the DIG ‘shall be responsible to and under the control of the Chief Minister’, the 13th Amendment provides no means by which the Chief Minister may exercise any control in respect of the actions of the DIG except by appealing to the IGP or the President for assistance.
Executive power lies with the President and his servants – and to the extent that a Chief Minister is not a servant of the President, the Constitution does not, and indeed cannot, vest executive power in the Chief Minister.
It is this provincial police, recruited by the Provincial Police Commission which has a majority of members appointed by the Central Government and which functions under a DIG who is under the disciplinary control of the IGP which is charged with the responsibility of preserving public order in the Province.
The 13th Amendment would however have the Tamil people believe that the subject of ‘Police and Public Order’ is somehow ‘devolved’ on the Provinces.
From the aforesaid it appears that the subject of ‘Police and Public Order’ is not even within the competence of the Provincial Governor. It is a subject which is effectively retained in the hands of the President and the IGP who may act either through the National Police Division or the Provincial Police division.
Disposition of State land
Apart from the subject of ‘police and public order’, there was another issue and that was ‘disposition of state land’. It was not only a way of wining political support and votes, it was also a way of bringing about demographic change and managing a people.
On the one hand, the subject of ‘Land and Land Settlement’ is matter in the Provincial Councils List. On the other hand this is qualified by the statement: ‘Land and Land Settlement’ to the extent set out in Appendix II. (13th Amendment 9th Schedule)
And what does Appendix II enact? It enacts that ‘state land shall continue to vest in the Republic and may be disposed of in accordance with Article 33(d) and written law governing the matter’. What is Article 33(d) of the Constitution? This is the article which enacts that the ‘President shall have the power to execute such grants and dispositions of lands and immovable property vested in the Republic’!
So despite ‘Land and Land Settlement’ being a matter in the Provincial List, disposition of state land remains a power vested in the president.
State land in the provinces will be vested in the President and will not be given over to the Provincial Councils. The principle of central rule will not be affected in the distribution of land. Under the land policy as envisaged in the Amendment, no state land will be vested in a Provincial Council – in other words no giving away of state land to the provinces.
In matters connected with the disposition of state land, just as much as in matters connected with police and public order, it is the President who will rule.
I was of the view that 13A needed to be amended and Police powers and the subject of Land taken away from Provincial Councils in the national interest. Just imagine a Mervin Silva as Chief Minister in direct control of the police —even God won’t be able to help us; but having studied the amendment, I am now inclined to think that it may not be necessary to seek an amendment as the central Executive or the President controls both police powers and land.
I am only a student of such matters and I do hope some constitutional expert such as Jayampathy Wickremaratne, Rohan Edirisinha or Manohara de Silva would please clarify matters in the public interest.