IGP Jayantha Wickremaratne
Police paralysed by the 17th Amendment
By R. Wijewardene
country’s police force is paralysed. It is not possible
for police officers to be promoted, transferred or
appointed at present as the tenure of the National
Police Commission expired on April 12.
According to the nation’s constitution no appointments,
promotions or transfers within the police force can be
made without the approval of the National Police
Commission and with the expiry of the terms of four of
its members last week the Police Commission is now
unable to sit.
Therefore should the police hierarchy promote, transfer,
or appoint any police officers at present they would be
violating the law they are duty bound to protect.
situation is untenable — the country’s police is
currently operating outside of the constitution. Until
new council members are appointed the force will remain
However the appointment of four new officers to the
commission is not a simple matter — in fact it is
impossible as appointments to the National Police
Commission can only be made by the Constitutional
Council, and the Constitutional Council (CC) of course
has been scuttled by the government.
problem currently confronting the police therefore is
inextricably entwined with the dilemma of the 17th
Amendment. The government’s failure to implement part of
the nation’s constitution has led to the effective
paralysis — in any legal sense — of the police force.
any other democracy this situation would have resulted
in a major public outcry,” claimed Prof. Rohan
Edirisinha of the Centre for Policy Alternatives.
situation in legal terms is simply anarchy — the police
are no longer operating within the parameters of the
has been no word from the government on appointments to
Despite government statements regarding what it
believes are severe shortcomings in the wording of the
17th Amendment, which was passed to depoliticise the
public service, the fact remains that regardless of the
opinion of the government or President the 17th
Amendment is part of the constitution — it is simply the
law. It is not an optional clause or arbitrary addendum
to the constitution and cannot, legally, be ignored.
the problems regarding the 17th Amendment have for the
most part been presented as an abstract, legalistic
difficulty, in reality the government’s failure to abide
by the law has now placed the police in a position of
genuine operational difficulty.
Violating the law
the police will of course be compelled as a matter of
operational necessity to make promotions, transfers and
appointments, but when they do so they will be violating
National Police Commission was set up to ensure
transparency within the police force and protect
officers from unfair treatment and arbitrary decisions.
Officers who objected to their transfers or to
disciplinary action taken against them by senior
officers have the right to appeal to the commission and
challenge decisions made by the police hierarchy.
Appointments too have to be approved by the commission
to ensure that promotions and appointments are made on
the basis of performance rather than on political
preference. Allegations of police misconduct made by
the public were also brought before the commission which
was empowered to investigate these allegations.
“Promotions, transfers, disciplinary action, complaints
all fall under the purview of the commission,”
explained former Police Commission Chairman Noel
Piyadigama. “I think we made a lot of progress, but our
term expired on April 12 and I haven’t heard anything
about new appointments, I’m not sure who is handling
these functions at present.”
were handling 50-60 cases a week, mainly complaints from
officers who felt they had been unfairly treated.
There is no longer anywhere for these officers to go.
The powers of the commission are extremely broad and it
is difficult — if not impossible — for the police to
function without a sitting commission,” claimed K.C.
Logeswaran whose term as commission secretary just
Waiting for appointments to be made
questioned as to how the police intended to function
without the commission, Police Spokesperson SSP Ranjith
Gunasekera responded; “We are waiting for appointments
to be made. But that is a matter for the President and
I cannot comment on the matter at the moment.”
reports of gross misconduct by police officers in some
parts of the country and regular reports of deaths in
police custody, as an impartial authority empowered to
regulate and regularise the conduct of the police, the
commission clearly fulfilled a vital function
its demise there is no authority that members of the
public aggrieved or affected by the misconduct of the
police can turn to.
even more than the problem of transparency the current
impasse relating to the commission presents the police
with a genuine operational difficulty, for without the
authority of the commission it is not possible for the
force to make even a simple transfer.
Symptom of a broader ailment
Ultimately however, the paralysis of the police force
is only a symptom of a broader ailment afflicting the
country — a government that seems to have abandoned the
rule of law.
don’t understand the implications — the government has
abandoned the constitution and the constitution is the
basis for the law,” lamented Rohan Edirisinha.
course the periodic abandonment of the rule of law in
this country is nothing new and a similar situation
arose in 2005 with the expiry of the previous Police
Commission. Then too the absence of a Constitutional
Council prevented new appointments from being made.
However invoking the doctrine of necessity, and what
appears to be a direct violation of the country’s
constitution, on that occasion the President appointed
members to the National Police Commission.
should have been a public out cry,” claimed Edirisinha
while Logeswaran when questioned about the appointments
made to the council in 2005 responded “I am not sure
what the legal basis for those appointments was.”
arguing that a police force that is able to make
promotions and transfers is something of a necessity,
the President appointed members of the commission as a
matter of necessity.
However, invoking the doctrine of ‘necessity’ to
violate the nation’s constitution ultimately sets a
is little that cannot be justified under the doctrine of
necessity — torture, detention without trial. In fact
what ultimately protects people from actions the
government might deem ‘necessary’ in certain
circumstances is the nation’s constitution.
without this admittedly flawed document there is simply
no basis for the law. By invoking ‘necessity’ to
circumvent the problem created by its failure to
establish the Constitutional Council the government
appears to have abandoned the constitution altogether.
However despite the gravity of the present situation
and the dubious legality of the government’s actions,
legal action taken against the government for its
failure to implement the 17th Amendment has consistently
been undermined by the judiciary.
the Supreme Court and the Court of Appeal rather than
acting to uphold the law have made every effort to
dismiss cases brought against the government on account
of its failure to abide by the constitution.
President is inevitably cited as a respondent in cases
regarding the 17th Amendment the Attorney General has
consistently argued that the President’s immunity from
prosecution prevents such cases from proceeding.
According to Edirisinha “The Attorney General’s Office
has worked deliberately and consistently to subvert the
the situation is unparalleled in any democracy.
argument that the President is free to ignore the
constitution and the law is a chilling example of the
logical end of the doctrine of necessity — in order for
the government to successfully circumvent the
constitution — it is necessary that the President is
regarded as above the law. And ultimately if a
country’s leader is under no obligation to follow its
laws then it is clear that the broader rule of law has
been rendered null and void.
in its efforts to ignore the constitution the government
has drawn the country down the dangerous path of
lawlessness, and the nations police is now compelled to
break the law in order to function.