_ BackLAW AND ORDER
"Law and order shall be a subject devolved on the regions and shall include public order in the regions and the exercise of police powers" says Article 25(1) of the 'Package'. Article 25(2) on the other hand says that "National defence and national security shall be reserved subjects". Can "law and order" and "public order in the region" be divorced from "defence and national security"? Can the exclusive responsibility for the preservation of the former be vested in one authority while the exclusive responsibility for the preservation of the latter is vested in eight different authorities each of which is independent of each other as well as of the former ? Yet that is precisely what the 'Package' contemplates !!
Threats to the national security, the unity and integrity of independent Sri Lanka have come not from foreign lands but from within our borders i.e from the J.V.P and the Tamil Secessionists. Although our giant neighbour India did commit unconscionable trespasses upon our sovereignty by giving aid and assistance to the secessionist terrorists, and otherwise interfere in our internal affairs during the current civil war, India was never the source of the threat to our national security or our unity and integrity, but rather a Country which nurtured, fostered and nourished the armed bands of terrorists from within our shores who caused that threat. It was the failure of the Government of the day to preserve 'law and order' and 'public order' that enabled both the Sinhalese J.V.P and the several Tamil Secessionist Groups to form armed bands and launch assaults on the Country. The preservation of 'national security' and the 'defence'of the Country are therefore dependent on the preservation of 'law and order' and 'public order' in the Country. 'National security', 'defence', 'law and order' and 'public order' are manifestly subjects that are so inextricably interwoven as to constitute one subject and not different subjects that can be compartmentalised and entrusted to different authorities.
The direct cause of the ever intensifying climate of violence that has gripped our Country for the last quarter of a century has been the coming into being in the Country of independent illegal armed organisations. A sine qua non for the restoration of peace and the rule of law is the subjugation and disbanding of such criminal organisations and the Army, Navy, Air Force and Police Force of the Republic which function under the direction and control of the Government becoming once more, the only armed organisations in the Country. The 'Package' however, envisions the creation of eight Regional Police Forces which will be independent of each other as well as of the existing Police Force and the Government of the Republic. The days when police officers went about armed with nothing more than wooden batons being but a distant memory, there can be no doubt that each of these police services will be an armed 'police service'. Since the 'Package' can only be implemented after peace is restored by defeating the LTTE, the resultant position is that the Government proposes subjugating and disbanding the illegal armed organisation called the LTTE and thereafter establishing by constitutional amendment eight armed forces called 'Regional Police Services' which will be both possessed of a plethora of legal powers and function independently of any control by the Government. The 'logic' behind this exercise is hard to discern.
Article 25 of the 'Package' provides for the creation of one
'National Police Service' headed by a 'National Police
Commissioner' and one 'Regional Police Service' headed by a
'Regional Police Commissioner' for each Region. Each Regional
Police Commissioner will be appointed by the relevant Chief
Minister in consultation with the Governor who in turn will be
the nominee of the Chief Minister since Article 10(2) of the
Package provides that the President will appoint the Governor on
the advice of the Chief Minister. Thus, the Chief Minister of
each Region will have the right to appoint and also to dismiss
the Regional Police Commissioner at his absolute discretion since
Section 14(f) of the Interpretation Ordinance provides that:-
"for the purpose of conferring power to dismiss, suspend
or re-instate any officer, it shall be deemed to have been and to
be sufficient to confer power to appoint him."
The 'Package' is silent about who will appoint the National Police Commissioner but it may safely be presumed that it will be the President.
The responsibility for the recruitment transfer, promotion and disciplinary control of police officers in each Regional Police Service will be vested in a Regional Police Commission which will consist of the Regional Police Commissioner and two others appointed by the 'Constitutional Council'. Similar provision is made for the creation of a National Police Commission.
The command structure of the Regional Police Service envisioned in the Package is that while all officers in such service will function under the Regional Police Commissioner, such Commissioner will in turn "be responsible to and under the control of the Chief Minister in respect of the maintenance of public order in the Region" [Article 25(7)]. The 'Package' also provides that the Regional Police Service "shall be under the direction, control and superintendence of the Regional Police Commission" in respect of the prevention, detection and investigation of and the institution of prosecutions in respect of all offences except those specified in Article 25(4) [which is analysed later in this Chapter] - see Article 25(8).
Thus, in theory, the Package does not envision a Chief Minister being vested with absolute control of the Regional Police Service of his Region because:-
'Theory' and 'practice', however do not always go hand in hand and the latter is often unrecognizeable from the former. That which will affect the People and the Country is not the 'theory' but the 'practice'. How will these provisions work in 'practice'??
The 'Constitutional Council', which is the brain child of the academically brilliant Minister of Justice Professor G.L.Peiris, will be charged with making appointments to high posts such as the twenty seven different 'Commissions' which will come into being with the 'Package'. The members of this Council will be the Prime Minister, the Speaker, the Leader of the Opposition, five Members of Parliament nominated by the Committee of Selection of Parliament, a Chief Minister nominated by the Chief Ministers of the Provinces and two retired Judges of the Supreme Court or Court of Appeal (13). While no provision has been made relating to who will nominate the two retired Judges, it will presumably be the President who will do so. Since the Committee of Selection always has a preponderance of Members of Parliament of the Government, it is evident that at least three of the five Members of Parliament nominated to the Constitutional Council will be from the Government Benches. The Speaker too being a member of the party that constitutes the Government, the Opposition would be capable of having a maximum of four members out of eleven in the Constitutional Council even if the Chief Minister nominated to it is from one of the parties in the Opposition. The Constitutional Council will, therefore be undoubtedly controlled by the Government.
In these circumstances, as far as the Region's outside the North and East are concerned, there can be little doubt that while the Opposition will have its 'say', the Government will have its 'way', so that the Constitutional Council notwithstanding, the appointees to the Regional Police Commissions and other Commissions in those Regions will be persons who find favour with the Government Party.
This in turn will mean that the two appointees of the Constitutional Council to any of the Regional Police Commissions or other Commissions of those Regions would invariably be the nominees of the Chief Minister where the Government Party of the Centre constitutes the Regional Administratioon or the nominee of that Party's members of such Regional Council where another party constitutes the Regional Administration.
The scenario in respect of the Region comprising the Northern and Eastern Provinces will, however, be entirely different. Having regard to the overtly communal nature of politics in those two Provinces and the results of past elections, the overwhelming probabilities are that none of the 'National Parties' which cut across communal barriers will constitute the Administration of that Region, but that it is one or more of the racist Tamil Parties that will do so. The entire purpose of the 'Package' has been to appease those Parties and the one matter the Central Government will seek to avoid at all costs, particularly at the incipient stages of the implementation of the 'Package' will be a confrontation with the Regional Administration of the Northern and Eastern Provinces. Added to this is the fact that both major National Parties - the UNP and the SLFP together with its satellite parties which constitute the PA, are firmly wedded to the perception that the Sinhalese vote being equally divided between them, the key to political power lies in garnering the 'minority vote' which alone could tip the balance of power in favour of either of them. In these circumstances neither the UNP nor the SLFP led PA would ever dream of offending whichever racist Tamil Political Party or group of Parties that wins the Regional Council Elections for the North and East - for to do so would be to offend a Party commanding a substantial 'minority vote' and hence to lose such vote at a forthcoming National Election.
It is necessary at this stage to digress from the 'Package' to the recent political history of our Country to illustrate with just one of the many available examples, the unabashed sychophancy displayed by these two major National Parties towards parties commanding a substantial number of minority votes.
The Ceylon Worker's Congress [CWC] led by Saumyamoorthy Thondaman is the major Party of the Indian Tamil community of Sri Lanka and is widely believed to command a 'block' of about 500,000 votes. Even after the UNP won 80% of the seats in Parliament in 1977 the UNP leader J.R.Jayawardene took Thondaman who was elected on the CWC 'ticket' into his cabinet as 'insurance' for future election victories. Thereafter Thondaman remained a member of the successive UNP cabinets of Presidents Jayawardene, Premadasa and Wijetunge. During this period Thondaman enjoyed in full measure the freedom of the wild ass. He openly advocated the permanent merger of the North and East while the declared policy of the UNP until 1987 was to be unyielding in its opposition to such merger, and remained in the Cabinet without even a mild reproof. On the other hand two veteran UNP Ministers who were Sinhalese, M.D.H.Jayewardene and Cyril Mathew, were summarily given marching orders from the Cabinet for criticising Government Policy. The former for criticising one budget and the latter for criticising the UNP proposals to the All Party Conference of 1983 regarding the devolution of power. Thondaman defied an 'Essential Services Order' promulgated by J.R.Jayewardene and launched an islandwide strike of employees of Government owned estates shortly after Jayewardene had crushed the July 1981 General Strike launched by other Unions by promulgating an Essential Services Order and dismissing thousands of strikers. Not only were neither Thondaman nor any of his strikers not dismissed but they were rewarded for having flouted the law with the grant of their demands. Finally in 1993 Thondaman while being a member of D.B.Wijetunge's UNP Cabinet, openly joined hands with the SLFP and the DUNF in a conspiracy to topple the UNP controlled Administration of the Provincial Council of the Central Province in 1993. Notwithstanding all this, Thondaman remained a member of the UNP Cabinet till its demise in August 1994, and both he and members of his Party were given nomination on the UNP 'ticket' for the General Election of 1994 !! Thereafter Thondaman was 'rewarded' for his unmitigated disloyalty and sabotage by being nominated to Parliament on the UNP's National List !!!
What of the SLFP led PA ? For seventeen years it castigated and continues to castigate the UNP Governments of 1977 - 1994 accusing them of mass scale corruption; defrauding the Country, ruining the economy, debasing the Judicary, murdering tens of thousands of Sinhalese Youth, instigating communal riots, causing the civil war and a myriad other offences. Thondaman having been a member of these Governments and collectively responsible for their deeds and misdeeds was necessarily one of the 'Accused'. Yet, no sooner Chandrika Bandaranaike Kumaratunge assumed office as President she took the UNP National List MP Thondaman into her Cabinet while the other members of Thondaman's CWC who were elected to Parliament on the UNP 'ticket' including his grandson Arumugam Thondaman remained in the Opposition !! Thondaman's conduct thereafter was no different to his conduct in his previous incarnation as a UNP Cabinet Minister. While President Kumaratunge albeit belatedly, accused the LTTE of being a terrorist organisation after the LTTE foully broke the ceasefire on the 19th April 1995, Thondaman not only maintained in public that the LTTE was fighting for the rights of the Tamils [and therefore fighting a legitimate 'war'] but even proposed that the Government should vest control of the entire North and East in the LTTE for a period of five years !! Thereafter he organised a strike of estate workers while most estates were still Government owned and his party, the CWC, with his knowledge consent and overt blessings moved a vote of No Confidence against his Cabinet colleague and Leader of the House of Parliament Ratnasiri Wickramanayake !!! He met with not a frown or a mild word of reproof from President Kumaratunge while her Ministers who were Sinhalese like Mahinda Rajapakse and Srimani Athulathmudali had felt the stinging lash of her tongue for much less.
What of the present UNP leadership ? Though Thondaman, a UNP Minister for 17 years who had been appointed to Parliament on its National List had grossly betrayed that Party by joining the PA Cabinet and criticising the UNP's performance in its 17 years of office, the UNP leader Ranil Wickremesinghe has not yet dared to ever criticise him. On the contrary he waits with bated breath and patient expectation for this prodigal grandfather to return to the UNP fold with his block of 500,000 votes !! In the meantime Thondaman's men remain on the Opposition benches but support the Government, and are still given times to speak in Parliament from the quota of time allotted to the UNP !! Would Ranil Wickremesinghe or his Party have tolerated such conduct if Thondaman had been a Sinhalese and his party a party of the Sinhalese ??
To return to the 'Package', all this serves to show that having regard to their proven track record of abject servility to a minority party that commands a 'block vote', not even the most incurable of optimists could visualise either the PA or the UNP failing to compete with each other to ensure that their representatives in the Constitutional Council would lend their enthusiastic and unstinted support for the appointment of the nominees of the Chief Minister for the Region comprising the Northern and Eastern Provinces to the Regional Police Commission, [as well as the Regional Judicial and Public Service Commissions] of that Region. Thus, both the Regional Police Commissioner as well as all three members of the Regional Police Commission for the North and East will, indisputably be the nominees of the Chief Minister and it is he, therefore, who will at least in the crucial formative years of the Regional Police Service of that Region, control through his nominees all appointments to, as well as transfers, promotions and disciplinary control of the members of that armed Regional Police Service.
The provisions of the Package which place the Regional Police Commissioner under the direction and control of the Chief Minister in respect of the maintenance of public order while placing the entire Regional Police Service under the direction and control of the Regional Police Commission in respect of all other police functions will, as far as the Regional Police Service of the North and East is concerned be only of academic interest since its Regional Police Commission will necessarily consist of nominees of the Chief Minister.
Even where the other Regions are concerned, this scheme of dual control over the Regional Police Service will be of little more than academic interest in its practical application. The maintenance of public order will, by its very nature, be dependant on the prevention, detection and investigation of offences. Clearly no public order could be maintained unless offences are prevented, detected, investigated and the offenders prosecuted. Since the prevention, detection and investigation of offences are an integral part of the maintenance of public order, it is meaningless to provide that the Regional Police Commissioner will be subject to the direction and control of the Chief Minister in respect of the maintenance of public order and that the entire service of which he is the head will be subject to the direction and control of the Regional Police Commission of which he is a member, in respect of the prevention, detection and investigation of offences. In the context of these circumstances, in practice, the Regional Police Commissioner and hence the Regional Police Service which he heads will function under the direction and control of the Chief Minister in respect of all functions.
The jurisdiction of the Regional Police Service, according to
Articles 25(4) and 25(8) of the 'Package' will consist of the
prevention detection and investigation and the institution of
prosecutions in respect of all offences except:-
"Offences against the Republic.
Offences relating to the army, navy and air force.
Offences relating to elections except local authority elections.
Any offence committed against the President.
Any offence committed against the Prime Minister, the Speaker, a
Minister, a Deputy Minister or a Member of Parliament.
Any offence committed against a Member of the National Judicial
Service Commission, a Member of the National Public Service
Commission, the Secretary-General of Parliament, a member of the
President's Staff or a Member of the Staff of Parliament.
Any offence prejudicial to national security or the maintenance
of essential services.
Offences relating to coins, currency and Government stamps.
Any offence relating to property belonging to the Republic or a
State Corporation, Company or Establishment, the whole or part of
the capital whereof has been provided by the Republic.
Any offence under any law relating to any matter in the Reserved
List.
Any offence in respect of which courts in more than one Region
have jurisdiction, and International crimes."
The jurisdiction of the National Police Service is not defined in the Package but will, presumably, be restricted as far as the Regions are concerned to the prevention, detection, investigation and the institution of prosecutions in respect of the above offences which are excluded from the jurisdiction of the Regional Police and encompass all offences in the cities of Colombo and Kotte.
Accordingly it is the Regional Police and the Regional Police alone that will have jurisdiction within the several Regions in respect of, among other offences, all offences against the persons and property of all persons who do not fall within any of the categories of persons specified in Article 25(4), including offences such as murder, rape, abduction, kidnapping, housebreaking, armed robbery, cheating and criminal breach of trust as well as offences under the Firearms Ordinance, Explosives Ordinance, Offensive Weapons Act etc. The National Police Service including the Criminal Investigation Department will have no jurisdiction over any such offence in any Region. Further, while offences against the persons of such 'exalted' persons as the President and any member of her staff including her cook would be excluded from the jurisdiction of the Regional Police and fall within the jurisdiction of the National Police Service in terms of Article 25(4) and 25(8), any offence committed against the person of a spouse or child of such a person or in respect of his property that is committed within any Region would fall within the exclusive jurisdiction of the Regional Police Service !!
The exclusion of the jurisdiction of the Regional Police in respect of all offences committed against the categories of persons specified in Article 25(4) such as the President and her staff, Members of Parliament, the Secretary-General of Parliament and members of the Staff of Parliament and the vesting of jurisdiction in respect of all such offences in the National Police Service could only be effected on the basis that the Regional Police could not be trusted to have jurisdiction in respect of offences committed against such persons, or that such offences are so grave that they merit the attention of the National Police Service. This in turn leads to the irresistible conclusion that in the Government's 'thinking', offences such as the murder of any person such as a Mahanayake, an Archbishop or a member of the Clergy of any religion, a Judge of the Supreme Court, the Attorney-General, the Commissioner of Elections, the Auditor General, a Service Commander, the National Police Commissioner or a Secretary of any Ministry other than that of the President, a spouse or child of any of the specified persons or any ordinary citizen could be adequately investigated and dealt with by the Regional Police, but that an offence of even giving a single slap to the President or her office aide, the Secretary General of Parliament or a gardener employed by Parliament is too serious an offence to be investigated by the Regional Police and merits the attention of the National Police !! The reason for this distinction is somewhat difficult to comprehend.
The nett effect of the division of jurisdiction relating to police functions envisioned by the 'Package' insofar as the personal security of the residents of our Country and that of their property is concerned will be that:-
In short the Government of the Republic of Sri Lanka elected by all the People of the Country would be abdicating its duty and responsibility for the preservation of the safety and security of the vast bulk of Her citizens and their property in all parts of the Country outside the cities of Colombo and Kotte, and making an outright transfer of such responsibility to the several Regional Administrations, each of which will be elected by only some of the citizens. So complete will this abdication be that even if a Regional Police Service refuses or fails to investigate an offence committed against, or to provide adequate security to any citizen who does not fall within the class of the 'doubtful elite', the Central Government would be powerless to cause an investigation to be made or security to be provided. Another result of such abdication will be that whenever any citizen visits a Region of which he is not a permanent resident, his personal security will not be the responsibility of a Police Service controlled by a Government or Administration in the election of which he participated and which is therefore responsible to him, but that of a Police Service controlled by an Administration that is elected by and responsible to others. On such a visit such a citizen would also be liable to arrest or detention by such 'alien' police. His situation on visiting any Region outside his own would be very similar to that of a tourist in a foreign land.
A question of paramount importance that demands consideration is whether the proposed partition of the functions performed by one central police force among eight different 'Police Services' will increase or decrease the efficiency of crime prevention detection and investigation in the Country.
At the time of independence we inherited from the British an excellent police system. The manifold shortcomings in our present Police Force are not attributable to that system but to political interference in all aspects of the Force including recruitment, transfers, promotions, disciplinary action and investigations, and the twin evils of corruption and the erosion of professionalism which have afflicted practically every field of activity in our Country today.
The provisions relating to Police Powers in the Thirteenth Amendment not having been implemented, the essential features of the Police System we inherited remain virtually intact. Those features consist of a centrally controlled Police Force commanded by the Inspector General of Police with a network of Police Stations throughout the Island, each with an area of authority demarcated for administrative convenience, manned by transferrable officers of ranks ranging from Police Constable to Chief Inspector, supervised by a hierarchy of transferable Senior Gazetted Officers of ranks ranging from Assistant Superintendent to Deputy Inspector General, each of whom is assigned an area of authority which is also demarcated for administrative convenience, and specialised branches located in Colombo.
One important feature of this Police System is that even the humblest Police Constable serving in the remotest of Police Stations has jurisdiction in respect of all offences in all parts of the Country. Thus a Police Constable serving in Point Pedro in the North has the jurisdiction to make an arrest or conduct investigations anywhere in the Island, be it at Devinuwara in the South, Colombo in the West or Batticaloa in the East. Another important feature lies in the fact that all police officers being members of the same Force functioning under the same command, any Police Station in any part of the Country can, through the centralised chain of command, obtain as of right, the co-operation and assistance of any other Police Station or specialised branch such as the CID or the Registrar of Finger Prints. The implementation of the 'Package' will sound the death knell of this salutary system.
Apart from the fact that each Regional Police Service will only have jurisdiction over certain offences, they could be empowered to exercise such jurisdiction only within the boundaries of their own Regions, and only in respect of such offences as are committed within such boundaries, for there is clearly no basis on which officers belonging to a Regional Service which is controlled by and responsible to only the Administration of its own Region which is elected by only the citizens of that Region could exercise any powers in another Region.
Thus, where a person commits a murder in the Southern Region and flees across the regional boundary to the Western Region, no police officer of the Southern Region would have the jurisdiction to follow and arrest him because his jurisdiction ends at that boundary. By the same token the Regional Police of the Western Region would be powerless to arrest him even within the Western Region because the murder having been committed in the Southern Region, the Western Regional Police would have no jurisdictionin respect of it. Even the National Police Service would be unable to arrest him because the murder of an 'ordinary' person is not an offence in respect of which the National Police Service would have jurisdiction.
Even the provisions of Article 25(4) of the 'Package' that impliedly vest jurisdiction in the National Police Service to investigate offences in respect of which Courts of more than one Region have jurisdiction would not vest the National Police with jurisdiction in respect of such murder. This is so because ordinarily the Courts of more than one Region would have jurisdiction in respect of an offence only when such offence is committed partly in one Region and partly in another, such as where a person standing on one side of a regional boundary shoots another on the other side of that boundary, and not to a case where a person commits an offence wholly in one Region and flees to another (14).
The identical disabilities that attach to the arrest of such a person would attach to the conduct of investigations and the recording of statements where such investigations into an offence have to be made and statements recorded in a Region different to that in which such offence has been committed.
There can be little or no doubt that every criminal and would be criminal in every part of the Country would without exception, welcome the 'Package' with open arms.
The disastrous effect of the implementation of the 'Package' on the prevention, detection and investigation of crimes committed against the persons and property of ordinary individuals would be as nothing when compared to its effect on the security of the Republic.
It is apparent from what has been said so far, that the feeble
attempts made to make it appear that the Chief Ministers will not
have total control over all aspects of the armed Regional Police
Services notwithstanding, the Chief Minister of the Region
comprising the Northern and Eastern Provinces will, indisputably
gain such total control from the point of recruitment onwards,
and that the overwhelming probabilities are that that Chief
Minister and his Administration will be wedded to the identical
policies as the LTTE - i.e the policy of secession. It would be
an act of incredible naiveity to even imagine that any of the
racist Tamil Political Parties which purports to accept the
Package would accept its implementation as an end in itself,
rather than as a stepping stone to their ultimate objective of a
separate state. This would be in keeping with the thinking of the
political progenitor of the present day secessionists, S. J. V.
Chelvanayakam Q. C., which was so well described by his
son-in-law Professor A.Jeyaratnam Wilson in these terms:-
"As a lawyer and a politician he knew that goals could
not be attained in a single leap; he believed in the policy of 'a
little now and more later'. The 'little now' could not therefore
become an end in itself, although many of the comfortable 'Tamil
bourgeoisie interpreted the 'little now' aspect of
Chelvanayakam's policy - best characterised by the 'interim
adjustments' he arrived at with the prime ministers,
S.W.R.D.Bandaranaike in 1957 and Dudley Senanayake in 1965 - as
final destinations. This was far from his own interpretation of
Sinhala majoritarianism. He had come to the conclusion as early
as 1958 that the Sinhala leaders were 'not big enough to rule the
Tamils'(15).
The "little now" to Chelvanayakam's political progeny would be the Regional Councils and the "and more later" a separate state.
When against the background of these circumstances, a party of secessionists is presented with a Region comprising their 'Promised Land' equipped with all the essentials of a separate state, namely, a legislature, executive, judiciary and an armed police force called a Regional Police Service which will be totally under the control of their leader, there is at the very lowest, a strong likelihood that they will use that Police Force as a nucleus around which to build an army with which to make a final putsch for a separate state at a time of their choosing.
The military defeat of the LTTE and the capture or elimination of its leadership will not result in all its cadres being destroyed or arrested, or in all its arms, ammunition explosives and other military equipment being surrendered or destroyed - a substantial quantity would in all likelihood remain in caches concealed in various parts of the Country particularly in the North and East, to be unearthed and used when the time is opportune. Apart from the 'military' cadres of the LTTE who remain alive and free there will also be the 'military' cadres of the other secessionist groups like PLOTE, EPDP, TELO etc., all of whom believe in the same policies and are both trained and experienced in warfare. The problem faced by such cadres of fighting men will be how to re-group, re-organise, establish a command structure and how to recruit and train fresh cadres.
All these problems would be solved for them with the creation of an armed Regional Police Service into which they would, in all probability be recruited. Recruitment and office in such Police Service would enable them not only to operate openly but also to do so clothed with legal authority over all residents of and visitors to the North or East, and with the full backing of the 'government' of the area. Such 'government' under its Chief Minister will both own the sea coast and have free and untramelled control over all minor ports and harbours of the Region rendering the smuggling of arms and equipment to equip that force for war all the more easy. Prabhakaran's starting point, it must be remembered was with a ragtag group of ill armed youth hunted by the Government. We have seen how far he progressed. The starting point of a secessionist Chief Minister on the other hand will be a mini state replete with its own legislature, executive and judiciary, exclusive governmental authority over all subjects which affect the day to day lives of all citizens, and an armed police force that is solely under his command.
The answer of the Government's spokesmen to any fears expressed about the dangers inherent in granting to each of the Regions and the Region comprising the North and East in particular, armed police forces that are independent of the Centre is that those fears are unfounded, firstly because there will be a National Police Service controlled by the Central Government which will have sole jurisdiction over all "offences against the State, offences prejudicial to national security or the maintenance of essential services", and secondly, because the provisions relating to Emergency Powers of the Centre [see Article 26] would equip the Government with ample authority to effectively obviate any such dangers. What these spokesmen do not appear to have even begun to realise is that the best and most effective means of obviating such dangers is to refrain from establishing any Regional Police Services, or that wilfully creating a danger and then taking steps to guard against the dangers so created is an exercise in idiocy.
If the National Police Service is to be even a partial safeguard against the Regional Police Service of the North and East being metamorphosed into a Secessionist Army, or against the Regional Administration maintaining a Secessionist Army clothed in the garb of a Regional Police Service, the National Police Service must of necessity closely monitor the conduct and day to day activities of that Regional Police Service and of its members while they are both 'on' and 'off duty'. It is self-evident that this will be a task incapable of accomplishment - for how could one police service established by law monitor the activities of another police service established by law that is independent of it, in the area of jurisdiction of that very service ?? Even an attempt at such monitoring would inevitably result in frequent armed clashes between the two services which, in turn, would give the Regional Administration a credible basis to complain of the mala fides of the Government and broken promises, so as to gather international sympathy and support for secession, and to thereafter make an unilateral declaration of independence.
Although exclusive jurisdiction in respect of offences against the State and offences prejudicial to National Security is to be vested in the National Police Service, that jurisdiction is one that is more easily bestowed than exercised.
As our own experience with the J.V.P rebellions and the on going secessionist rebellion has shown, an insurrection or rebellion does not commence with overt attacks on Army Camps, Police Stations or Government Establishments. The offences committed in the incipient stages of an insurrection would, except for such offences as the distribution of seditious literature, be offences such as robberies of banks, co-operatives, payrolls or of individuals to build up a war chest; the robberies of fire-arms and explosives, the possession of unlicensed fire-arms, ammunition and explosives, the murder of politicians and other 'opinion makers' who are unsupportive of the cause of the rebels, as well as of persons such as police informers. Each of such offences would, on the face of it, appear to be an ordinary offence committed for personal gain or motive, and hence an offence in respect of which the Regional Police Service has exclusive jurisdiction unless such offence is committed against one of the persons specified in Article 25(4), or in respect of State Property.
The fact that such offences were committed in pursuance of a conspiracy to wage war against the State would become apparent only upon a proper investigation of each such offence and an assessment of the evidence in respect of all such offences, not merely individually, but in their totality. It is only when such evidence is so collected, collated, analysed and assessed that the overall picture created by the pattern of such offences could come into focus.
However, the vast majority of such offences would be investigated initially by the Regional Police Service because each of them would, on the face of it, appear to be an ordinary crime committed for personal motive. Thus, if the Regional Police Service is supportive of the planned rebellion, it would undoubtedly suppress the investigations, 'doctor' the statements of witnesses, intimidate or do away with witnesses who divulge the truth about the purpose for which such offences were committed, shield the offenders from detection and otherwise suppress from the National Police Service and the Country at large, the truth about, or pattern that emerges from the commission of such offences.
The National Police Service would be largely helpless in such a situation. Being a police service that is separate and independent of the Regional Police Service, neither the National Police Commissioner nor even the President or Minister of Defence will be able to give any orders to, or enforce the co-operation of the Regional Police Service. On the other hand,the Regional Police Service supported by the Chief Minister who controls it would resist any attempt by the National Police Service to investigate such offences on the ground that they fall within the exclusive jurisdiction of the Regional Police Service. Thus, the likelihood is that preparations for the launching of a secessionist rebellion will be effectively shielded from the view of the National Police until it is too late to take the necessary preventive action.
The above matters apart, there is another 'mundane' matter that will prevent the National Police Service from effectively discharging the duties that would be assigned to it by the 'Package' - that is the not unimportant matter of logistics.
Even though the categories of offences in respect of which the National Police Service would have jurisdiction are substantially less than those in respect of which the Regional Police Service will have jurisdiction, the physical area over which it will exercise that jurisdiction will be the entire Island. Moreover, its jurisdiction in respect of such offences being exclusive, each Regional Police Service will be precluded by law not only from investigating but even from preventing or detecting any such offence. Thus, the National Police Service which will not only exercise exclusive jurisdiction in respect of the offences enumerated in Article 24(4) but also have jurisdiction in respect of all offences committed in the cities of Colombo and Kotte will need to have at least as many personnel and police stations as all the Regions put together - this would be particularly so in the Region comprising the North and the East.
From where are the requisite personnel to be found ? Even today, the Country does not have sufficient police officers and competent police officers in particular, in the single force that we now have. If we are to have nine independent 'Police Services' in place of that single Police Force, it must follow that the personnel of the single Sri Lanka Police Force will be divided among the nine new 'Police Services' - for it is not even imagineable that the Government intends that the new Regional Police Services should start from 'scratch' and be manned wholly or mainly by 'raw' recruits. Thus, with the vast majority of its personnel going into the new Regional Police Services, the Sri Lanka Police Force which will be re-named the National Police Service will be left with but a small fraction of its personnel.
Since an officer of the Sri Lanka Police Force could not be compelled to join a Regional Police Service, and such officers would have the option of deciding whether to join any of the the proposed Regional Police Services or not, there is likely to be a massive shortage of personnel in not only the National Police Service which will be the 'pool' from which all the Regional Police Services will draw at least the nucleus of their personnel, but also varying shortages of personnel in some Regional Police Services. Having regard to the facts that there will necessarily be a manifold duplication of administrative functions incumbent upon the creation of nine Police Services in place of the single Sri Lanka Police Force, and the need for the National Police Service to have at least the same number of personnel as the combined strength of all eight Regional Police Services,and as many police stations and offices as they, it will be essential to recruit to the nine new Police Services a number of suitable personnel that is at least equal to the number of personnel in the existing single Police Force - both police officers and support staff such as clerks, stenographers, typists, peons etc.
Though it may be possible to find sufficient support staff, from where are suitable recruits to be found overnight to fill so many vacancies for police officers ? While anybody with a basic education could perform clerical duties, not all such persons could perform police duties. Even if the requisite number could be found how will they be trained ? It is axiomatic that having regard to the extent of the powers with which a police officer is vested, it is imperative that only suitable persons are appointed and that a proper training is given to each recruit. Every recruit to any Police Force or Service, however it may be named, must be given an adequate training in basic law including at least the Penal Code, the Criminal Procedure Code, the Evidence Ordinance, the Motor Traffic Act, the Police Ordinance and the conduct of prosecutions in Primary and Magistrates Courts. They must also be trained in such fields as unarmed combat, the use of firearms, first aid, crowd control, traffic control, investigation techniques, swimming and drill. Such a training to be effective, would ordinarily need a duration of six months. We clearly do not have the facilities to impart such training to anything even remotely resembling the number of recruits who will have to be trained to adequately man the proposed nine independent Police Services. Each of these nine Police Services will then have the option of either being short of manpower requirements or filling their services with unsuitable and untrained or inadequately trained recruits. The dire consequences of having a Police Force manned by unsuitable or untrained or inadequately trained personnel are too obvious to need elaboration. The worst affected would undoubtedly be the National Police Service, and the ultimate sufferers the long suffering public.
Even if an adequate number of suitable recruits could be found and we had adequate facilities to give such recruits sufficient training, there will still be another not unimportant 'detail' to be considered - that is the availability of funds for the expenditure that will be involved.
Since the number of police officers in the Country will have to be at least doubled, so also will the salary bill - but that will not be all. The administrative expenses will be far more than doubled with a nine fold increase in the administrative requirements including support staff for the nine establishments replacing the existing single establishment. In addition to these, funds will have to be found to impart training to a number of recruits that is at least equal to the existing strength in the existing Police Force, to provide them with uniforms, weapons and ammunition, pay them batta and provide them with quarters. The doubling of the number of existing police stations and the consequent doubling of the number of Senior Gazetted officers supervising them will result in a need to purchase at least an equal number of vehicles as are now possessed by our single police force, to provide fuel for and maintain such vehicles, purchase or rent a number of new premises to house a number of Police Stations and Police Offices that will at least be equal to the number that now exists, and provide the new Police Stations and Offices with funds to feed prisoners, 'run' informers, purchase furniture, stationery, typewriters, computers and communications equipment, and meet a number of other expenses ordinarily incurred in any police establishment.
Not only does our impoverished country not have the resources for such expenditure, but such expenditure will probably exceed the entire expenditure now incurred on the 'civil war'.
The one Police Service that will, in all probability have no problem about man power requirenments will be that of the Region comprising the Northern and Eastern Provinces - for the nucleus of its Regional Police Force will be drawn not so much from the existing Sri Lanka Police Force, but from former members of the LTTE's illegal 'Police Force' as well as from the former military cadres of the LTTE and other secessionist groups all of whom would be only waiting all too impatiently to join an organisation through which they could prosecute further their march to a separate state.
The National Police Service would, on the other hand, be a largely impotent service with the bulk of the personnel of its predecessor, the Sri Lanka Police Force going into the Regional Forces and with insufficient manpower or financial resources to enable it to perform with any degree of effectiveness, the functions assigned to it. The very thought that the National Police Service would be able to thwart any separatist designs of the Regional Council for the North and the East would, of course, be less than an opiate dream.
To what extent will the provisions in the Package relating to
'Emergency Powers' obviate the danger to the security of the
State that will be created by the provisions relating to the
establishment of Regional Police Services ? These provisions
contained in Article 26(1), (2) and (4)(a) read:-
"26.(1) Where the President is of opinion that the
security or public order in a Region is threatened by armed
insurrection, or grave internal disturbances, or by any action or
omission of the Regional Administration which presents a clear
and present danger to the
unity and sovereignty of the Republic , he may make a
proclamation bringing the provisions of the law relating to
Public Security into force in the Region.
26(2) upon such proclamation, the President may by order deploy
in aid of the civil power, the armed forces or any unit of the
national police service for the purpose of restoring public
order................
26.(4)(a) If the President is satisfied that a situation has
arisen in which the Regional Administration is promoting armed
rebellion or insurrection or engaging in an intentional violation
of the Constitution which constitutes a clear and present danger
to the unity and sovereignty of the Republic, the President may
by Proclamation assume to himself all or any of the functions of
the administration of the Region and all or any of the powers
vested in, or exercisable by, the Governor, the Chief Minister,
the Board of Ministers or any body or authority in the region.
The President shall also have the power to dissolve the Regional
Council in these circumstances."
Having regard to the wording of and punctuation of Article
26(1) the question arises whether the words:-
"which presents a clear
and present danger to the
unity and sovereignty of the Republic"
qualify only the words:-
"or by any action or omission of the Regional
Administration"
which immediately precede them, or whether such words also
qualify the words:-
"that the security or public order in a Region is
threatened by armed insurrection, or grave internal
disturbances,......."
which appear earlier.
This question is put beyond doubt by the Sinhalese text of the
Package in which Article 26(1) commences with the words:-
"Janarajaye Eksathbhavayata Saha Svyrabhavayata Erehiwa
Pahadili Ha Pana Nagi Athi Antharayak Vannavu Sannaddha Karallak
Ho Barapathala Abhyanthara Aragala Ho Palath Palanadhikaraye Yum
Kriyawek Ho Nokara Hareemak Ho Magin.........."
which leaves no possible room for doubt that the words:-
"which present a clear and present danger to the unity
and sovereignty of the Republic"
qualify not only the words:-
"or by any action or omission of the Regional
administration"
but also the words:-
"armed insurrection, or grave internal
disturbances".
Thus the fact that there is clear evidence that a secessionist rebellion is being planned in any Region, or that the Regional Administration is involved in the planning of that rebellion, or that an armed insurrection or grave internal disturbances such as communal riots have broken out, or that a Regional Administration is actively promoting or passively acquiescing in such insurrection or disturbances will not by itself be sufficient to entitle the President to declare a State of Emergency and deploy units of the Armed Forces and the National Police Service to restore public order, or exercise any of her powers under the Public Security Ordinance - for she could do so only after the armed insurrection or the public disturbances or the misconduct of the Regional Administration has reached such alarming proportions that it presents a 'danger' that is both 'clear' and 'present' to "the unity and sovereignty of the Republic" !! By the same token, even the clearest of evidence that a Regional Administration is committing treason by promoting armed rebellion or insurrection, or that it is intentionally flouting the Country's Constitution that it is pledged to safeguard, will not by itself entitle the President to assume to herself a single function of the Regional Administration including the function of preserving public order or to give a single direction to it or to dissolve the Regional Council - she would have the power to do so only after such armed rebellion or insurrection promoted by the Regional Administration, or the intentional flouting of the Constitution assumes such proportions as to present a danger which is both clear and present to the unity and the sovereignty of the State.
Ordinary prudence demands that the stable door should be shut before, and not after the horse has escaped, nor while it is in the process of escaping. The provisions relating to the use of Emergency Powers, and the powers of the President to give directions to a Regional Administration, or to dissolve a Regional Council make evident the fact that she will be totally powerless to take preventive action to preserve the safety and security of the State and her citizens, and that she will only have the power to take 'curative' action once a 'clear' and 'present' danger to the unity and the sovereignty of the State has arisen.
The fact that the stage at which the President will be empowered to take curative action may well be too late is apparently one that has escaped the attention of the author of the Package.