Danger of devolving police powers to PCs

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By 2017-08-12

by Lakshman I. Keerthisinghe

"We, the people of Tamil Eelam, have an inherent right to self-determination. Subject to genocide at the hands of successive Sinhala national governments and as an essential measure of protection we wish to establish our own independent and sovereign State of Tamil Eelam."

-Preamble to the Tamil Eelam Freedom Charter

Visuvanathan Rudrakumaran - Prime Minister TGTE

It was recently reported in the Asian Tribune that M.K. Sivajilingam, the Northern Provincial Councillor and a former Member of Parliament, who represented the Tamil National Alliance (TNA) has categorically stated that "the present President was the acting Minister of Defence in the last week of the war in May 2009, against the Liberation Tigers of Tamil Eelam, as President Mahinda Rajapaksa was away from the country and in his capacity as the Acting Defence Minister, he too had a fair share in the war crimes against the Tamils. Sivajilingam has further stated that three provincial councillors including him, were summoned and questioned by the special CID team that arrived from Colombo, mainly on the allegations they earlier levelled on 8 May, at the media conference held at the Jaffna Press Club, on genocide and on the allegation made on the present President's earlier involvement in war crimes."(Asian Tribune 1 August 2017)

It must be noted that Sri Lanka cannot afford another war and there is no guarantee that a future Northern Provincial Government would not do the same as what the Liberation Tigers of Tamil Eelam (LTTE) did in the past. Sri Lanka cannot risk a provincial government forming its own Army through Police powers devolved to provinces under the 13th Amendment to the Constitution. The recently reported escalation of attacks on the judiciary as evidenced by the assassination attempt on Justice M. Ilancheliyan and the murder of his Police bodyguard coupled with the recent attacks on Police personnel in Jaffna Peninsula indicate that an armed struggle is now not a thing of the past. It must be recalled that the 13th Amendment to the 1978 Constitution was created by the Indo-Lanka Accord in 1987. It is very clear in the Accord that only one mechanism should be there for law enforcement for the entire country and there cannot be separate mechanisms.

TGTE Charter

In the above backdrop, we may now examine the contents of the Transnational Government of Tamil Eelam (TGTE) Charter which states:

1. The creation of an independent and sovereign State of Tamil Eelam remains the only viable option to lead a life with security, dignity and equality, both individually and collectively.

2. For over six decades we have struggled, through both non-violent means and armed resistance, to protect ourselves from State sponsored genocide. We demand the international community to organize a referendum to enable us to exercise our right to self-determination and also take all measures to bring to justice the perpetrators of genocide against the Tamil people.

3. The North-East of Sri Lanka is our traditional homeland and will be the territory of the State of Tamil Eelam. The maritime and aerial limits of Tamil Eelam will be established according to international laws.

It is the view of TGTE that "Presently, the international powers view the Tamil national issue as having three vantage points involving Sino-Indian-Sri Lankan geo-strategic interests.

Tamil Nadu Factor

TGTE had referred to Mark J. Grabrielson and Joan Johnson Freese's article titled the "Tamil Nadu Factor in China's Naval Basing Ambitions in Sri Lanka", and explained "when the Eelam struggle is undertaken by the Tamils across the globe, especially the Tamils in Tamil Nadu in conjunction with Eelam Tamils, the effect of it will multiply," forcing India to review its foreign policy to strengthen its position in the region by placing less reliance on its relationship with Sri Lanka...In the light of China's naval basing ambitions that include access to a new seaport, which it funded and built in Hambantota, Southern Sri Lanka, a development, "...impacting the balance of naval forces in the Indian Ocean," as analyzed by Gabrielson and Johnson Freese, TGTE believed "India has to address the Tamil Nadu factor as an opportunity to actually strengthen its position formidably against China's ambitions by aligning itself with Tamil Nadu towards finding a political solution for Eelam Tamils that's in accordance with Tamil aspirations, thereby protecting her interests in the region. (Source: Internet)

1978 Constitution

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". 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 the 13th 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".

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 level of public security.

Contention

Thus it is seen that the contention that devolving Police powers to these Provincial Councils could pave the way for the re-establishment of an Army in the North is indeed a reality and the risking of such an action may result in another failed attempt at the formation of a separate State in the North and East through the resurgence of an armed struggle as in the past resulting in misery to our Nation. This fact necessitates a strong military presence in the North and the East and continued vigilance as even our brethren living in the North and East do not desire such an eventuality, which will bring misery to their people as evidenced in the past.

As far as devolution of land powers is concerned the Supreme Court has held that "State Land shall continue to vest in the Republic" Thus it is the central government which holds such power which is advisable in the present context.

It is the diaspora led by the TGTE thriving comfortably in foreign lands on the millions of dollars flowing into their coffers in the guise of protecting an Eelam cause that are hell-bent to destablize Sri Lanka in the eyes of the international community. The government has already commenced a dialogue with all stakeholders to achieve a consensus through consultation and compromise.

In conclusion, it is advisable that all Sri Lankans should resort to the ballot and not to the bullet to resolve any conflicts among the ethnic groups. It is now seen that abolishing the executive presidency, as well as devolving Police and land powers to the provinces is not advisable in the present situation. As the prelates have observed it is advisable to halt the Constitution making process as the present time is not opportune as evidenced by the recent escalation of unrest in the North.

The writer is an Attorney-at-Law with LLB, LLM, MPhil (Colombo)

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