Police Powers And 13-A

13 MAHINDABy N Sathiya Moorthy

Independent of claims to the contrary, the events and developments of the past week and beyond would show that Police powers in  the hands of the provinces by itself alone need not be an unsustainable proposition. They have shownthat the Centre too need to exercise precaution and pre-emptive responsibilities in ensuring that the Police powers now exclusively available to it ensure law and order across the country.

It is easy to dismiss the riots and communal clashes in Aluthgama, Beruwala and Dharga Town as a mere law and order episode, as many others before it. Yet, the events of the past year and half, particularly targeting the nation’s Muslim population, sends out a different message altogether. Even while declining expectations and demands for him and his party to quit the Government, SLMC’s Rauff Hakeem has declared the party’s intention to take up the issue to the UN Rapporteur for Minority Issues. In contemporary Sri Lankan context, anything to do with the UN other than funding agencies is unacceptable. It’s at the same time incongruous that political parties in the Government should sing different tunes at different times and on different issues. It does not weaken the Government of the day. It weakens the Sri Lankan State.

Sri Lankans need only to look at the Indian neighbour for avoidable lessons. In India, the unreasonably long run-up to the recently-held parliamentary polls ended up making both the Government and the State look weak, though they were neither. It’s no different in Sri Lanka just now.

Only a poll platform 

With speculation to early polls to the presidency making the rounds already, political parties in Sri Lanka have begun using the anti-UNHRC resolution in Parliament and the Alutgama-Beruwala incidents outside as a poll platform and just that. No political party can claim honourable exemption from it. When the affected in the communal clashes required a healing touch and a common national approach, they were playing the blame-game as usual. This does not mean that responsibilities should not be fixed. Rather, they need to be done so, here and now. The question remains why no preventive action was taken when the situation in the area was already tense. Was it only a failure of judgment of the police officers on the ground, or was there more to it than meeting the eye?

A similar failure on the part of the police a year or so ago created avoidable loss of lives in Welliweriya, where the victim community happened to be mostly Christians. The episodic attack on Muslims, both before and after Welliweriya, seems to have evolved into a pattern. Likewise, a raid on Minister Rishad Baithudeen, and attacks on fellow Buddhist monks all recall memories of another era. At the time, intolerance of the LTTE used to be blamed for everything. Soon, the LTTE became a monster. Sri Lanka of our times has had the inherent capabilities to convert an ideological militant group like the JVP into a religion and language centric ‘Sinhala-Buddhist nationalist’ outfit. Both targeted innocent people and the Sri Lankan State.

History cannot afford to repeat itself, too often, too frequently. That’s because the lessons of history are not learnt as seriously and sincerely as every Sri Lankan should learn, and should have learnt. None, including the individual is exempt.

Political leaders, starting with government leaders, are not exempt.

Partisanship charges

The argument that provincial administrations will misuse or abuse ‘police powers’ if granted has no validity on that score. Today, every failure on the part of the Police, if it were so, to maintain law and order, is seen as a failure of the Government  at the Centre. Worse still, it’s seen as a failure of the Sri Lankan State. In nations where the provinces/states (alone) have police powers, the Centre seldom comes under attacks of partisanship in the use of those powers, and the deployment of the police force in specific situations. It then becomes the responsibility of the Centre to ensure that the ‘Police powers’ entrusted to the provinces are not misused and abused. There are specific constitutional provisions, or healthy precedents, or both, to empower the Centre in context.

In the past, whenever communal riots or serious erosion of law and order situation has occurred, Sri Lanka’s Central Government could not escape blame. It was so in 1983, too.

More than the episodes per se, it’s the powers-cum-responsibilities of the Centre as a single, unified institution to enforce law and  order across the nation, which came under stress,and repeatedly so.

Trivialising accountability? 

More than the findings of the Centre-appointed LLRC, the responsibility of the Centre as the implementing authority in relation to the Commission’s recommendations has made the very process weak, lacking in credibility. It could not have been otherwise, either. This does not mean that only an external inquiry alone could help. With a nation suspicious of the aim and objective of the international community, a UNHRC-driven independent probe into war-related accountability issues will be just that. The blame that the UN, the US and the UNHRC have now laid at the door of the Sri Lankan Government applies as much to them.

By commenting on every HR issue of whatever kind and worth in Sri Lanka since the Government began opposing the war crimes probe over the past two years, the international community too is often seen as trivialising the main issue.

Worse still, nations and individuals in place in the international apparatus, have also given the impression that they have taken it all personal too. Mervyns do not stop with Sri Lanka, it would seem. When those living in glass houses begin throwing stones, the dirt hits the ceiling. The events in Iraq in recent months, the apprehensions of continued instability and war-lord attitudes in Afghanistan may delay and hide the accountability issues in those countries. But the truth is otherwise, whether or not they are accountable and acceptable.

This in turn too has trivialised the international community’s concerns in the matter.

Policing a provincial Police?

The weak yet revived discourse on police powers for the provinces, peppered by references to new Indian Prime Minister Narendra Modi’s call for Sri Lanka to go ‘beyond the Thirteenth Amendment’ have consequences. While conforming to the best policing practices in India, 13-A made a huge exception that is now behind the genuine and not-so-genuine concerns of the Sri Lankan State and successive political establishments in the practical conferment of police powers on the provinces.

To be fair, no government at the Centre in Sri Lanka has conferred policing powers to the provinces under 13-A, or otherwise. Tamils are neither the rule, nor the exception to it.

The Sinhala provinces too have suffered the same fate. They complain to none, not that they too many not have such legitimate aspirations for themselves and their provinces. The TNA need to ask itself why they want the Police powers for the provinces. If it’s to help the Tamil citizenry to transact legitimate business in police stations otherwise they should encourage Tamil youth to join the police force, whenever recruitments are made in the Tamil-majority, TNA-controlled Northern Province.

That’s not happening. Instead, the Centre’s call for the recruitment of Tamil youth in the police force is often accompanied by unsubstantiated abuse of their youth in uniform,  particularly women. If the security of the women cops from among their midst is the concern, this is not the way to go about it. In a situation where the post-war Tamil youth can do with substantial family incomes and also have the satisfaction of doing something good to the society, the Tamil social and political leaderships should encourage their youth to join the uniformed services. This requires no police powers, or even provincial administrative control. It is not happening, either.

This is not to argue against police powers for the provinces. That is a different, political issue, not to be confused with having Tamil-knowing policemen and finding gainful, permanent employment to the Tamil youth, post-war. On the political front, police powers for the provinces have to be tempered with precautions against their alleged misuse and abuse.

In contemporary Sri Lanka, post-war, the apprehensions of such misuse of police powers by a Tamil province are more real than the truth. The same applies to the southern, Sinhala provinces, where too the two ‘JVP insurgencies’ raise questions about the possibilities of the kind challenging the Sri Lankan State from within, and in ways more powerful than in the past.

What Sri Lanka needs today is not denial of police powers to the provinces. Instead, it is the conferment of the same on the provinces, if only to check against the charges of misuse and abuse against the Centre, if the Sri Lankan State is to be seen as non-partisan and just. The Centre in such a case can play the credible judge and enforcer at the same time.

In the context of Police powers, it could take the shape of the creation of para-military forces at the disposal of the Centre and stationed in the Provinces, all across (and not just in the Tamil provinces). If recruitment from the armed forces would help, then the Centre, now or later, should not shy away. Considering the gravity of the ethnic situation in the country, post-war, the Centre could consider a multi-layered model for policing, based on the US scheme. A county police-like set-up could ensure that minority communities live with a sense of security and police protection among the relative majority – be it the Tamils in the midst of Sinhalese, the Eastern Muslims in the company of the Tamils earlier, and even the Sinhalese just now. Both have suffered, and both need solutions.

The Centre too should consider setting up an independent investigating and prosecuting agency, on the lines of the FBI in the US and the CBI in India. Such agencies can be independent of the provincial police, entrusted with investigations against crime. Such a course could take it beyond the traffic police duties that the Centre now says, it may consider for the Provinces.
If law and order powers alone is the problem, and not provincial policing otherwise, in terms of the Sri Lankan State’s legitimate concerns about security and sovereignty of the nation, then ways can be explored to ensure as much. Overwhelmingly and justifiably so, any constitutional/parliamentary re-look into policing powers under 13-A could consider powers for the Centre to dismiss elected provincial governments under specific circumstances, for the enforcement of the Constitution.

Automatic powers for the Supreme Court to review such decisions of the Centre could provide the required protection for the provinces. Needless to say, all such decisions of the Centre, independent of the judicial hearing and verdict, should be debated in Parliament and voted in, there too. The TNA and the Tamils should not stand in the way of ‘truncated police powers’ under 13-A. The Centre and the Sri Lankan State should not continue to deny police powers for the provinces for the sake of such denial. The solution lies in between. It can be identified and codified only through mutual discussions and parliamentary deliberation, say through the PSC.A chicken and egg situation this, in which, the differences are not about issues and solutions, but about political egos and personality clashes, both within and otherwise! If nothing else, no stake-holder can have the cake and eat it too.

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary public-policy think-tank, headquartered in New Delhi. email: sathiyam54@gmail.com) Formeco