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President to usurp police powers?

IGP Jayantha Wickremaratne
and Mahinda Rajapakse

Police paralysed by the 17th Amendment

By R. Wijewardene

The 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.  

This situation is untenable — the country’s police is currently  operating outside of the constitution.  Until new council members are appointed the force will remain paralysed.  

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.

Government’s failure 

The 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.  

“In any other democracy this situation would have resulted in  a major public outcry,” claimed Prof. Rohan Edirisinha of the Centre for Policy Alternatives.

The situation in legal terms is simply anarchy — the police are no longer operating within the parameters  of the constitution.

There has been no word from the government on appointments to the CC.

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. 

While 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

For 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 the law.  

The 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.”

“We 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 expired.   

Waiting for appointments to be made

When 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.”

Given 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

With its demise there is no authority that members of the public aggrieved or affected by the misconduct of  the police can turn to.   

But 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.  

“People in Sri Lanka don’t understand the implications — the government has abandoned the constitution and the constitution is the basis for the law,” lamented Rohan Edirisinha. 

Of 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.

“There 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.”  

By 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.  

Dangerous precedent

However, invoking the doctrine  of ‘necessity’ to violate the nation’s constitution ultimately sets a  dangerous precedent.  

There 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.  

And 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.  

Both 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’s immunity

As the 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 law.” 

Again the situation is unparalleled in any democracy.

The 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.   

Thus 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.  








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