Independence of police under 17-A not possible under 13-A
(Courtesy of The Island)
Recent incidents in Alutgama and Beruwala have highlighted once again the need to address issues relating to Law and Order in Sri Lanka. The strongly held belief is that the Law and Order situation could be considerably improved by restoring the provisions for a National Police Commission as provided for in the 17th Amendment. In the background, there is also the demand for the “full implementation of the 13th Amendment”, which would involve devolving Police powers to the Provinces.
It is an accepted fact that for the Rule of Law to prevail it is imperative that the Police who are responsible for maintaining Order should be independent of political or other patronages. If the intent is to depoliticize police functions by bringing it under the purview of a National Police Commission, the question arises whether such an independent arrangement could coexist with the Police powers devolved under the 13th Amendment.
PROVISIONS UNDER THE 17th AMENDMENT
Article 155G (1) (b) of CHAPTER XVIIIA – NATIONAL POLICE COMMISSION of the 17th Amendment states: The Commission shall not in the exercise of its powers under this Article, derogate from the powers and functions assigned to the Provincial Police Service Commission as and when such Commissions are established under Chapter XVIIA of the Constitution”.
PROVISIONS UNDER THE 13th AMENDMENT
Under the 13th Amendment the Provincial Police Commission is composed of the D.I.G. of the Province; a person nominated by the Public Service Commission in consultation with the President and a nominee of the Chief Minister (List 1, Appendix I clause 4). And under clause 11: 1 “The D.I.G. of the Province shall be responsible to and under the control of the Chief Minister therof in respect of the maintenance of public order in the Province…”.
This means that 2 of the 3 members of the Provincial Police Commission are under the “control” of the Chief Minister of the province. Clearly then, the Provincial Police are NOT independent of political patronage.
CONCLUSION
The fundamental premise for maintaining effective Order in a society is to ensure structural arrangements that make it possible for the Police to function free of political or any other influences. While the intent of the 17th Amendment was to establish an independent National Police Commission to meet such an objective, the already enacted 13th Amendment constitutionally provides for an arrangement that creates opportunities for political influences to affect policing functions. This could cause the policing functions throughout the country to be seriously compromised. Furthermore, the coexistence of the 17th Amendment and the 13th Amendment simultaneously, would mean the creation of an independent National Police force but with a politicized Provincial Police Force. Therefore, since it is the 13th Amendment that constitutionally provides for politicization of Police functions, Police Powers must be withdrawn from the 13th Amendment.
By Neville Ladduwahetty
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