Devolution of police & land powers

February 14, 2017, 8:32 am

The primary reason for devolution is to address the
national question. The national question is seen by the
Tamil leadership in terms of greater political power for
them while for the people it is how devolved powers are
organized to "operate effectively". The current situation in
the Northern Province as reported in the media vividly
demonstrates that devolution is not operating effectively
for the people. The report states: "The details on the
surveys carried out on alcohol consumption in the North is
disheartening with Jaffna Peninsula being rated as number
one region in the country as far as alcohol consumption is
concerned.

By Neville Ladduwahetty

The common perception is that except for Police Powers and Land
Powers all other powers assigned under the 13thAmendment
have already been devolved. Consequently, the demand is for the
full implementation of the 13th Amendment

The facts presented below demonstrate that constitutional

provisions relating to Police Powers under the 13th Amendment
are such that it is not possible to devolve Police Powers due to
lack of clear demarcation of responsibilities between competing
agencies responsible for security.

Regarding State Land however, since a panel of 3 Judges of the

Supreme Court determined that "State Land shall continue to vest
in the Republic", devolving powers over State Land to Provinces
would need a Constitutional revision.

1. POLICE POWERS

Article 42 of the 1978 Constitution and the 33A of the 19th

Amendment state that the President "shall be responsible to
Parliament for the due exercise, performance and discharge of
any written law relating to public security".

Thus, while the President is responsible for "public security" as

stated in articles cited above, List 1 which itemizes the powers
devolved to the Provinces states that the Provincial Police would
be responsible for "Public order and the exercise of police
powers". Furthermore, Appendix 1 of List 1, states that upon the
declaration of an emergency, the President may "assume powers
and responsibilities of the Chief Minister and the Provincial
Administration in respect of public order within the Province".

It is clear from the foregoing that while public order and police
powers are exercised by the D.I.G of the Province responsible to
and under the control of the Chief Minister, public security and
the declaration of an emergency are exercised by the President
and the Governor as the Presidents representative in the
Province. Furthermore, the fact that a declaration of an
emergency could be based "on receipt of a report by the
Governor" (Article 154L) and that "the President may give
directions to the Governor in which executive power exercisable
by the Governor is to be exercised" (154J), both reflect the nexus
between the President and the Governor relating to matters of
public security.

Article 4(b) of the Constitution states: "the Executive powers of

the People, including defence of Sri Lanka, shall be exercised by
the President". Article 154 B of the13th Amendment states that
the Governor "shall hold office in accordance with Article 4 (b)".
Furthermore, the Provincial Councils Act No. 42 of 1987 Article 15
(2) states that "all executive action of the Governor, whether
taken on the advice of his Ministers or otherwise, shall be
expressed to be taken in the name of the President".

It is clear from all of the above that the Governor represents and
acts in the interests of the President in the Province. In such a
context, conflicts of interest between the Governor and the
Provincial Police are bound to arise as to when public order
reaches the threshold of public security. The tendency would be
for the Provincial Police, supported by the Chief Minister, to claim
that its resources and capabilities are sufficient to meet
challenges relating to public order and for the Governor to claim
that timely intervention would prevent threats from escalating to
levels that would warrant declarations of emergencies. Therefore,
devolution of Police powers should be avoided until these
respective areas of responsibility are clearly defined.

PUBLIC SECURITY and PUBLIC ORDER

The Public Security Ordinance is the law governing Public Security

and its Preamble states:

"An ordinance to provide for the enactment of emergency

regulations or the adoption of other measures in the interests of
the public security and the preservation of public order and for
the maintenance of supplies and services essential to the life of
the community.

Although the Ordinance governs emergencies it is empowered to

"adopt measures in the interests of public

security and the preservation of public order". Therefore, since

the Ordinance permits intervention to "preserve public order",
there is a clear necessity to establish guidelines as to when public
order deteriorates to the point of reaching the threshold of public
security.

Even in countries such as the USA and others that have divided
powers relating to Law and Order between Provincial Police and
National Police, Law Enforcement Agencies continue to
experience difficulties in this regard. In the Sri Lankan context
these complexities would be compounded by ethnic differences
between Provincial Police and National Police in the Northern and
Eastern Provinces. Intervention by the National Police over public
security concerns would be perceived as a Sinhala Police
attempting to override Tamil /Muslim Police. Measures adopted to
contain threats to public order would invariably be seen upon
review to be excessive, influenced more by ethnic biases than
security concerns. Therefore, for the collective reasons cited
above and considering the existential realities in the Sri Lankan
scene it is best that Police Powers are not devolved.

However, the difficulty of establishing such clear distinctions is

evident in countries where issues relating to Law and Order are
divided between Provincial Police and National Police. This is often
the case between Federal Agencies and the local police in the USA
and vividly demonstrated in India during the terrorist attack in
Bombay due to the need for the National Police to seek
permission before intervening to restore public security under
provisions of devolution. In the Sri Lankan context, distinctions
between Provincial and National Police in the Northern and
Eastern Provinces would invariably be ethnic based thus
compounding existing complexities relating to jurisdictional
responsibilities. Therefore, if powers relating to Law and Order are
to be devolved it should be limited only to community policing.
Since this would entail revisions to the Constitution it would be
best not to devolve powers relating to Law and Order as currently
provided in the 13th Amendment.

2. STATE LAND

Extracts of the judgment by a Supreme Court Panel of 3 Judges

relating to State Land are presented below for the benefit of those
who are unaware of this judgment and for others who find the
judgment wrong in Law. The logic and the reasoning of the Court
that "State Land shall continue to vest in the Republic" are self
evident. However, the lack of due diligence on the part of those
who have not accepted this judgment and the pertinent facts, has
caused the credibility and the integrity of the Court to be
challenged. See details below.

S.C. Appeal No. 21/13

Before: Mohan Pieris, P.C., C.J., Sripavan, J., Wanasundera, P.C., J.

Judgment written by: Sripavan, J.

Relevant extracts of the judgment are:

"It must be noted that the demarcation between the Centre and
the Provinces with regard to "State Land" must be clearly
identified. As far as possible, an attempt must be made to
reconcile entries in Lists I, II, III of the Constitution and the Court
must avoid attributing any conflict between the powers of the
Centre and the Provinces"

"On an examination of the Provincial List, it would appear at item

18 as follows:

"Land Land that is to say, rights in or over land, land tenure,

transfer and alienation of land, land use, land settlement and land
improvement, to the extent set out in Appendix II" (emphasis as
in judgment)
Appendix II sets out as follows:

Land and Land Settlement

"State Land shall continue to vest in the Republic and may be

disposed of in accordance with Article 33 (d) and written law
governing this matter" (Ibid)

Thus it is important to bear in mind that "land" is a Provincial

Council subject only to the extent set out in Appendix II. This
Appendix imposes the restriction on the land powers given to
Provincial Councils. The Constitutional limitations imposed by the
legislature shows that in the exercise of its legislative powers, no
exclusive power is vested in the Provincial Councils with regard to
the subject of "land".

"According to 1.2 (in Appendix II) it is important to note that a

Provincial Council can utilize "State Land" only upon it being made
available to it by the government.

Devolution Of ...

It therefore implies that a Provincial Council cannot appropriate to

itself without the Government making "State Land" available to
such Council. Such "State Land" can be made available by the
Government only in respect of a provincial Council subject. The
only power cast upon the Provincial Council is to administer,
control and utilize such "State Land" in accordance with the laws
passed by Parliament and the statutes made by the Provincial
Council."

"In view of foregoing analysis, and considering the true nature

and character of the legislative powers given to Provincial
Councils one could safely conclude that "Provincial Councils can
only make statutes to administer, control and utilize State Land, if
such State Land is made available to the Provincial Council by the
Government for a Provincial Council subject."

CONCLUSION

The demand is for full implementation of the 13th Amendment,

meaning the devolution of Police and Land powers. The material
presented above demonstrates that Police Powers should not be
devolved given the particular context of Sri Lanka in which the
normal overlap of functions between Provincial Police and
National Police relating to public order and public security is
compounded, particularly in the Northern and Eastern Provinces
due to ethnic biases; a fact that could compromise national
security.

As for Land powers the Supreme Court determination cited above

is that "State land shall continue to vest in the Republic". Those
who are unaware of this judgment and others who have failed to
acquaint themselves of the reasoning behind the conclusions
reached by the Court, have indulged in comments that cast
aspersions on the credibility and integrity of the Court; a tendency
that has affected other judgments as well.

In the meantime, the September 2015 UNHRC Resolution Clause

16 states: "encourages the Government to ensure that all
Provincial Councils are able to operate effectively, in accordance
with the thirteenth amendment to the Constitution of Sri Lanka".
The focus should therefore be on how to make devolution operate
effectively instead of resorting to diversions by way of demanding
the right of self-determination or recognition of distinct Tamil
nationhood, and clamoring for more and more devolved powers
as reflected in the proposed Constitutional reforms.

The primary reason for devolution is to address the national

question. The national question is seen by the Tamil leadership in
terms of greater political power for them while for the people it is
how devolved powers are organized to "operate effectively". The
current situation in the Northern Province as reported in the
media vividly demonstrates that devolution is not operating
effectively for the people. The report states: "The details on the
surveys carried out on alcohol consumption in the North is
disheartening with Jaffna Peninsula being rated as number one
region in the country as far as alcohol consumption is concerned.
Drug trafficking in the North has also increased in recent years,
Seizure of narcotics such as Kerala cannabis and heroin by the
Police and Security Forces take place almost daily in the Northern
Province" (February 6, 2017).

This is only a hint as to the situation in the Northern Province; a

situation reported several times earlier. The plight of the people in
the North has a direct bearing on the seriously deteriorating
security situation. In such a context even contemplating devolving
Police powers with political patronage is foolish. What is disturbing
is that without addressing these real life situations that have a
direct bearing on the people, the Tamil leadership is preoccupied
with how to consolidate power to be as independent as possible
from the rest of Sri Lanka.
The Tamil leadership is projecting the notion that the reason for
the current state of affairs of the Tamil people is due to lack of
devolved political powers. It appears that the UNHRC has seen
through this charade when they resolved that the priority should
be for the 13th Amendment to "operate effectively". In the
meantime, if the South is genuine about reconciliation they
should canvas the International Community and jointly prevail on
the Tamil leadership to focus on delivery systems that benefit the
people, without pandering to their self seeking interests through
Constitutional reforms. By not doing so the South has become
partners in the charade. Overall, there is disingenuousness and a
leadership deficit all around.
Posted by Thavam