A responce to Subramaniam Swamy on police powers to the provinces



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By GaminiGunawardane
Rtd. Snr. DIG Police


I send this response to a statement reported (The Island-of 11th Aug) to have been made by Dr. Subramaniam Swamy at the recently concluded international seminar organized by the Sri Lanka Army, on post war development and rehabilitation. I believe many Sri Lankans are appreciative of Dr. Swamy’s enlightened and sympathetic attitude towards Sri Lanka in the matter of the so called ‘ethnic conflict’ in this country. He has steadfastly stated his position against the LTTE without getting carried away by the conventional and mostly subjective views generally prevalent in India in this connection. Therefore any ideas expressed by him become more important than most. Hence this response.


This news report says, "On the issue of police powers, he (Dr. Swamy) said that police powers too should be granted to provinces like in India. But, oversight mechanisms should exist at the Central level to make sure that these powers are not misused." In this regard I wish to point out to Dr. Swamy that the very notion of devolution of police powers is conceptually flawed, unfeasible and untenable in a unitary state. This may be possible in India which is some kind of a quasi-federal state. But Sri Lanka is a unitary state 16 times or more smaller than India geographically and many more times smaller than that country population-wise. Sri Lanka in fact is much smaller than even the smallest Indian State. In such circumstances how much smaller will be a ‘province’ in Sri Lanka both geographically and population-wise? Thus the very thinking of granting police powers to the provinces based on an Indian model as suggested is not tenable.


Conceptual flaw


There is basically a conceptual issue. That is, under a unitary constitution, is it conceptually possible to devolve the function of internal security and maintenance of law and order, to Chief Ministers?


Let me explain.


Law and order and internal security in the country are a fundamental pre-condition necessary for all other activities. All economic, political, social and cultural activity could take place in a community only in a secure environment. For that matter, even the basics of life, food, clothing and shelter, could be enjoyed by a person only if one could have them in a secure environment. Thus, maintenance of law and order becomes a fundamental responsibility of governance. That may be the reason why the subject of defence and internal security, is a subject that is kept directly under the President and earlier, under the Prime Minister, under the previous constitutions. It is thus a basic/core responsibility of the head of state, in governance. Therefore, it could be construed as an ‘inalienable’ responsibility.


Accountability


With responsibility goes accountability. This means a question of accountability, for, the preservation of law and order in the country lies directly on the government and more specifically, on the Head of State. He is primarily accountable to the people of the whole country for peace, law and order. Hence, is it practical or legitimately possible for him to devolve this accountability to some others who are not accountable to him? Thus, could it be a devolvable subject?


The question is, how can he be accountable for a responsibility that is passed on to somebody (viz. Chief Minister) who is independent of him and over whom he has no effective or direct control?


On the other hand, control of law and order function from the center may well be the very essence of a unitary concept. It may well be an essential characteristic of a unitary concept. In fact, it may be one of the very purposes of the unitary concept.


Viewed in that light, the idea of devolution of political power to the provinces as envisaged under the 13th Amendment itself is a contradiction in terms, conceptually flawed and untenable.


Structural problem


From that flawed concept flow the other problems. According to Sec 2 of Appendix 1.of the 13th Amendment, The IGP remains the head of the Sri Lanka Police Force; but his Police Force is now divided into two Divisions viz., (a) National Division, (b) Provincial Divisions. Now we need to examine the responsibility of the IGP, the Head of the Police in the country, in this light. Under this Amendment, is he responsible for the policing of the whole country? This question arises because as a result of this amendment he loses his Territorial Policing Arm which is the core police activity and responsibility, to the Provincial Division. Then is he responsible only for the non-devolved subjects of policing, namely the logistics function? If so, through whom does the President exercise his total responsibility and accountability for the other aspects of law and order, especially at the territorial level? This question becomes pertinent because, the DIG of the province is held ‘responsible to and be under the control of’, the Chief Minister (Sec.11:1). This gives rise to problems of command and control.


Command and Control problems


The IGP has the power to appoint the DIG to head the Provincial Police, but that too with the concurrence of the Chief Minister. The DIG however is accountable to the Chief Minister. Not only that, he will also be under the control of the Chief Minister. Now where is the Territorial Command of the IGP? What is he responsible for, beyond the appointment of the DIG whom he cannot remove without the Chief Minister’s concurrence? In such circumstances, even if he continues to have countrywide responsibility, what is his mechanism to exercise such authority? Then how could the DIG be held accountable to the IGP who in turn, is accountable for policing of the whole country?


In the absence of such authority with the IGP, the Defence Minister / Secretary Defence will have nine Territorial DIGs to deal with who are not directly accountable to him through the IGP. The IGP and his HQ. DIGs and Directors will be reduced to mere service providers. Thus, the chain of command becomes so unclear. This is very dangerous when it comes to critical situations.


This situation becomes further complicated when the Chief Minister happens to be a member of a political party that is different to that of the President/Minister of Defence/Internal Security. If the hostility between the government party and the opposition party becomes acute, the Chief Minister could make things difficult to the Defence Minister/Secretary in so many ways, to make him appear ineffective. Then what will be the state of the country?


Operational problems


Yet, Dr. Swamy had stated "The head of state government will have primary responsibility to maintain public order through a state police constituted for the purpose, but the Union shall have a Central Reserve police and a contingent of the Armed Forces stationed in a special conclave in the state to intervene for the maintenance of public order whenever the President determines with ex-post approval of parliament that a situation has arisen that requires such an intervention." (Note. It will be seen from the terminology of Dr. Swamy here, how much he is obsessed with the Indian idea of policing in the states in India). It will be seen that this is better said than done here. The central problem here is, the 13th Amendment provides that in the matter of a major public disorder or a breakdown of law & order, the central government could intervene only with the consent of the Chief Minister.(Appendix I sec. 11.1. (b) ) What if the Chief Minister would not consent? Judging by the petty minded conduct of today’s politicians, it is not an impossibility.


It could turn out that the Chief Minister himself or his supporters could well be behind the breakdown of the law & order. It is possible to refer to many such incidents here, but requirement of brevity precludes me from doing so. Yet it may be useful to cite some instances from the Indian scene itself to demonstrate the dysfunction of this system suggested by Dr. Swamy for Sri Lanka. The best example is the delay of more than 12 hours caused in moving the Special Forces to Mumbai to deal with the deadly terrorist attack on the major tourist hotel there. How many unnecessary deaths were caused as a result of this delay?


Similarly we watched in horror on the television the failure on the part of the Lahore State Police in providing security at a professional level for the Sri Lankan cricket team in Pakistan. In Sri Lanka this would be a high priority function of the center. That is how we were able to have the World Cup matches in 1996 in this country even in the midst of the battle with the LTTE terrorists going on in full cry. Then, one could not forget how in the ‘80s the IGP of Tamil Nadu behaved under Chief Minister M.G. Ramachandran whenever his police arrested Sri Lankan terrorists operating there. He was virtually a lump of clay in the hands of the Chief Minister. It was in the Tamil Nadu state that former Indian prime minister lost his life to a Sri Lankan terrorist suicide bomber. These are only some of the prices paid for the weakened policing at the periphery achieved through the recommended devolution mechanism.


On the contrary, there is a recent example to cite, to illustrate the value of Sri Lankan unitary policing model. Of late, Sri Lanka Police has been able to develop a countrywide rapid police response system where any citizen anywhere in the country could activate the police through a mere telephone call from a hand phone to No. 119. The advantage here is that police could intervene trans–provincial or otherwise, without the permission of anyone leave alone a Chief Minister or even the Prime Minister. This is because the Police Ordinance provides by Sec 56, for any police officer to exercise his police powers in any part of the country. We do not need to ask the President of the country to obtain "ex-post approval of parliament that a situation has arisen that requires such an intervention’’ to do that, as suggested by Dr. Swamy!


Sri Lanka Police has functioned for the last 145 years most effectively as a unitary command structure, under the co-ordination at the top and accountability to the IGP and by him to the Secretary Defence which is a must for the proper maintenance of law and order in this small country. Thus it is a time tested model. This had so far been taken for granted because of its unitary structural excellence introduced by the British. Dismantling of such a sound system to satisfy a short sighted political agenda of just one group of politicians will indeed be a disaster for the country. In fact, the 13th Amendment that India forced on us without consulting the people of this country has been a contentious obstacle to the political settlement of the problems that had arisen here. It was very probably designed originally to entice Prabhakaran to disarm. Since that situation is not extant any more, Sri Lanka should have the freedom to iron out the outstanding issues if any without being bogged down by the complications caused by the alien 13th Amendment. We are already saddled with the problems it has caused in the eight provincial councils in the other provinces. It is not within the scope of this essay to discuss all those problems here.


Our request therefore to Dr. Swamy who is sympathetic to Sri Lanka and who wishes to see that she solves the problems at hand which will be in the interest of India too, is to understand in depth the problems caused by the 13th Amendment, and request the Indian Central Government to desist from insisting on the implementation of this contentious enactment.


 
 
 
 
 
 
 
 
 
 
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