29th February, 2004  Volume 10, Issue 33

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SPOTLIGHT

Operation IGP

By Vimukthi Yapa

If one is asked to name the government organisation that has been politicised to the lowest level, without doubt the first to be named will be the Police Department. If one looks at the present situation in the department or inquired about the levels of politicisation it can be well surmised that politicisation spreads through the entire body of the Police Department, like a cancer.

President Chandrika Kumaratunga 
and IGP Indra de Silva

Losses and gains

With governments trying to be charitable to their political stooges from the Police Department who helped them when they were in the opposition, another set of police officers gained, not only financially, but with re-employment with promotions to the very top.Some were out of the police service, serving the private sector in cushy jobs, drawing fantastic salaries for some time, but ended up as Inspectors General of Police (IGP). In other words, due to political connections civilians were appointed to the highest position in the police.

The case in the police has to be considered in the light of certain legal connotations in the Police Ordinance, if one wishes to understand the effect of irregular action related to the appointment of an IGP. For  instance, Section 55 of the Police Ordinance (Chapter 65) states thus: "The Inspector General of Police may from time to time, subject always to the approbation of the said minister, frame orders and regulations for the observance of the police officers who shall be placed under his control as aforesaid, and also for the general government of such persons, as to their residence, classification, rank and particular services, as well as their distribution and inspection, and all such orders and regulations relative to the said police force as he may deem expedient for preventing neglect or abuse, and for rendering such force efficient to the discharge of its duties...

If any officer neglects or violates any such order he could be punished for non adherence. Therefore, in a service where the principle of comply and complain is respected, the powers so given to the IGP should be managed by a policeman and not a civilian. Note the words "shall be placed under his control" where there is no option given for non-compliance.

With this preamble we may proceed to observe what has been happening in the last few years, as far as the IGPs are concerned. A thesis will be required if the whole police service is to be considered.

One of the above mentioned political appointees, the late Lucky Kodituwakku was in office when the United National Front (UNF) assumed office.

He was seriously ill before long and was in hospital most of the time. The most senior DIG was H. M. G. B. Kotakadeniya, but the President decided on DIG T. E. Anandarajah to act in the absence of Kodituwakku.

Many representations made by Kotakadeniya on this anomalous situation before the appointment fell on deaf ears and ultimately Kotakadeniya chucked up the police service, a frustrated and angry man. He ended up with the Sihala Urumaya, on the unannounced understanding that he was discriminated because Anandarajah was a Tamil. There may have been other reasons for Anandarajah's selection.However, it is difficult for the affected to narrow down reasons.

On approval

Anandarajah was appointed to the post of IGP on the approval of the  Constitutional Council, which was established under provision of the 17th  Amendment. According to the l7th Amendment, Section 41 C states, (1) "No person shall be appointed by the President to any of the offices specified in the schedule to this article, unless such appointment has been approved by the council upon a recommendation made to the council by the President."

The President on September 25, 2002 nominated Anandarajah to be considered by the Constitutional Council for approval to be appointed, as the IGP. The Constitutional Council approved the recommendation of the President on October 1, 2002 and Anandarajah was appointed as IGP to succeed Kodithuwakku.

Anandarajah had to leave the police service and the position of IGP due to an allegation that he participated in a birthday party of a drug dealer's child.There was a lot of pressure brought in by political and civic organisations for his removal.

The ongoing battle for the post of IGP commenced with the decision of  Anandarajah to leave the IGP's position. There were four Senior DIGs (S/DIGs) out of whom T. Indra de Silva was one.

On October 13, 2003 the President again violating the criteria of seniority and shattering the legitimate expectations of the S/DIGs, nominated Indra de Silva for consideration by the Constitutional Council for approval under the 17th Amendment to the post of IGP.He was number three according to the seniority list. However, this placement in the seniority list was questioned by Indra de Silva. The Constitutional Council on October 14, 2003 requested the National Police  Commission (NPC) to determine the seniority of the four S/DIGs and to convey its decision to the Constitutional Council.

Improper conduct

The argument that was adduced during this interim period was that all four S/DIGs were appointed to this rank on the same day. Therefore, seniority was not considered a matter that should be seriously thought of. This argument is considered as totally incorrect by other S/DIGs. It is a fact that all S/DIGs were appointed on the same day to the rank of S/DIG, but it was only a tentative arrangement until a final determination is made by the NPC. The NPC, having gone into the subject matter thoroughly, submitted its decision to the Constitutional Council on October 24, 2003.

While the matter was under consideration, the President appointed de Silva as acting IGP. The President without adhering to the provisions of the 17th Amendment, arbitrarily and thereby in an unjustified manner extended his period as acting IGP till December 8, 2003.

This gave rise to much speculation. It was considered an act of favouritism, as this could make the IGP an obliging and slavish party and would support the President's political wishes in a future election.

The NPC submitted its decision to the Constitutional Council indicating the seniority as follows: 1. Chandra Fernando, 2. Gamini Randeni, 3.Indra de Silva, 4. Jayatissa Herath.

The Constitutional Council without approving the name of Indra de Silva, which was submitted by the President, or considering the most senior out of the four, submitted the report of the NPC to the President. The President without even querying the report of the NPC recommended Indra de Silva again to the Constitutional Council for approval for appointment.

The Constitutional Council on December 18, 2003 accepted the nomination made by the President and approved the name of Indra de Silva to avoid a conflict. Prime Minister Ranil Wickremesinghe too may have considered this as an opportunity to show his respect for cohabitation and said nothing. The President on this approval appointed Indra de Silva as the IGP with effect from October 14, 2003, on which date Anandarajah retired from service. The new IGP was expected to retire when de Silva reaches 60 years of age.

It had been the practice in the Police Department with two exceptions to appoint the most senior DIG to the post of IGP. The only two occasions that deviated from this policy within the last 25 years were when Ananda Seneviratne was appointed over Rudra Rajasingham in 1979 and when the late Kodituwakku was appointed over four of his seniors.

Violation

Although Indra de Silva's appointment was a violation of the fundamental  rights guaranteed under Article 12(1) of the constitution by the Head of the State, this appointment was not contested in the Supreme Court because there are legal constraints in suing the President on one hand and as all S/DIGs could aspire to be the IGP before they retire by appointing the IGP from among the four S/DIGs on an age criteria.As de Silva was to retire on February 18, 2004 the S/DIGs consoled themselves with the fact that it was only for a short period that de Silva could remain as IGP.

The S/DIGs did not know that they were being taken for a ride. By the time de Silva settled in his seat there were many manipulations that were taking place at President's House.The President was planning to oust the democratically elected UNF government, which had an assured majority with 129 members of parliament supporting the Prime Minister. She was planning to take over selected ministries under her control. She was concentrating on her strategies to finalise the alliance with the Janatha Vimukthi  Peramuna (JVP). In that background she wanted an IGP who would act irrespective of law to crush any attempts by the UNF to sabotage her plans.

However, the IGP made some silly moves which made it obvious that he had come in  to the IGP's room not to leave soon as wished for by the three S/DIGs.De Silva approached Public Administration Minister Vajira Abeywardene under whose charge the government bungalows are kept and discussed changing his residence. He inquired whether it was possible for him to change his residence to an equally or better bungalow presently allocated to another VIP.

De Silva meanwhile began meticulously executing the plans that were hatched at President's House by visiting the ranges to meet all officers.This is said to be the first time an IGP has done so. Wherever he went he stressed the fact that he will be making promotions that have been withheld for some time irrespective of the fact that some have to be done by the NPC.He was trying to impress on the lower ranks his intention to support  them.

Opportunities

To top it all he issued a circular giving the number of vacancies that will be filled by the promotions in due course. He was successful in this attempt, which is proved by the public appreciation of the IGP made by the Police Inspectors Association after being thrilled and excited of the grand opportunities offered by the new IGP.

The IGP was not only doing a public relations exercise in popularising the President as the authority to give promotions and to expect benefits through her, but he also started making representations to the NPC for transfer of officers perhaps on the requirement of the President and her political cohorts.He sent a representation to the NPC which happens to be an undated letter, numbered staff DIG/IG/TG/05/29/04.

Some of the requests are reasonable such as the transfer of Wegodapola, most probably a relation of the President, to be her Director Security.

Other transfers requested have their own reasons, some known and some unknown. The transfers he wanted to execute were as follows. SSP Meegoda to be transferred from Police Kennel Division to parliament;SSP Lucky  Gopallawa from the Kennels Division to Nuwara Eliya; SSP Peiris from Gampaha to Transport Division in the Police Head Quarters; SSP S. M. Wickramasinghe to Gampaha from the Transport Division; SSP Wilfred Mahanayake from Disciplinary Section to Kegalle; SSP H. P. Wickramasinghe from Terrorist Investigating Division; L. A. S. Lekamge from Planning and Research Division to Terrorist Investigation Division; and SSP Nanayakkara to oversee the Planning and Research Division in addition to his present duties.

Some of the requests made by the IGP were not allowed by the NPC. In the case of a transfer made suddenly to Jaffna (SSP C. N. Karunaratne) the IGP has stated that the transfer should be cancelled due to representations  made by certain public representatives.

But with the NPC standing firm, it was reported in the media that the President had summoned the IGP and the NPC Chairman to discuss police transfers. In fairness to the NPC it must be stated that the NPC has declined to approve some of the transfers requested by the IGP. This is another instance where the IGP could have explained the situation to the President, if she was willing to give a hearing.

Everyone other than the S/DIGs and a few who knew the team that was involved in political manipulations and parochialism expected the IGP to retire from service, when he reached retirement age. This was in keeping with Section 17 of the Pensions Minute which is quoted below.

Motivation

Section 17 states "Every public servant may be required to retire from the public service on or after attaining the age of 55 years.Retirement shall be compulsory for every public servant other than a judge of the Supreme Court on his attaining the age of 60 years, unless the competent authority decides that his services shall be retained."

Subsequently, the competent authority is interpreted as "the authority  competent to make appointments." Of course, the competent authority to appoint or extend the services of the IGP is twofold.The paper has to be signed by the President and the approval to do so is given by the Constitutional Council having studied the nomination made by the President. Division of labour principle is applicable in this matter.

In this background of the stipulations of the Pensions Minute the IGP had to retire at the age of 60 and he had no option to remain in office as he becomes a civilian when he reaches the age of 60.In fairness to de Silva it must be stated that he has communicated his desire to retire, keeping to his principles and showing respect to the existing rules and regulations.

The President's Secretary too has followed up this issue with the appointing authority and informed the IGP that his retirement had been approved. This intimation was made by his letter CPA/6/CF:189(Vol II) dated 28-01-2004. He was to retire with effect from 16-02-2004. This was good news and was considered by the S/DIGs as a reasonable response from the President. It looked as if she had started adhering to the rule of  law.However, this expectation of the S/DIGs was shortlived.

The department even prepared to organise the ceremonial salute for de Silva's departure. It was only then the officers found that the IGP has come to stay and not to depart so soon. The DIG in charge of this act happens to be one in Balapatabendi and Chandrananda's clannish mafia, namely Punya de Silva.When the ceremonial salute was informally discussed with him it is learnt that he has sarcastically phoo-phooed the suggestion and said that it would be held when required, giving the impression that this was not the appropriate time for it and he was aware of what was happening behind the backs of all concerned.Even the IGP had the same response conveyed only with a sarcastic smile from the corner of his mouth. If these are true one could understand the reality of "Operation IGP."

Although the President accepted the retirement of the IGP, the news soon spread that she was trying to get the same IGP to continue in office instead of one of the S/DIGs being appointed. She submitted a recommendation to the Constitutional Council to re-appoint him for a further period of six months. The question that is being raised now is why the President made a recommendation to re-appoint the IGP when she had accepted the retirement and wished him good health and happiness in retirement.

This gives rise to a suspicion that the President had a separate agenda, which was put into practice, step by step. By this time parliament had been dissolved and police action important to look after her candidates and supporters and to harass opponents. The political  agenda of the President took precedence over the constitutional requirement of obtaining the approval of the Constitutional Council.The respect for the Pensions Minute was lost. The consideration that should be given to senior police officers for motivation was wiped out.

Playing politics

As the Police Department watched the unfolding saga, there was no mention of an application for another new appointment. The Ministry Secretary was unaware of what was happening.When inquiries were made from the Ministry inquirers were told that they were in the dark. May be it was so. Or it may be he was washing his hands off the situation. The fact of the matter is that M. N. Junaid did not protest any of these manipulations.

The President having accepted the retirement of the IGP and confirming it in writing through her secretary yet made a recommendation to the Constitutional Council to re-appoint de Silva for a further period of six  months stating that the appointment was made due to the prevailing situation in the country.

If de Silva has been the IGP for a very long  period then his experience would have been indispensable. His S/DIGs are equally capable and experienced.De Silva is not an expert in elections. De Silva had only a short period in office and he cannot be regarded as an indispensable asset who should be kept back in service even after passing the retirement age of 60.

The Constitutional Council on February 1, 2004 discussed the recommendation submitted by the President and refused approval, as there is no constitutional provision to re-appoint the IGP. It is a known fact that under the 17th Amendment to the Constitution there is no provision to re-appoint the IGP after reaching retirement age.

Although the President may argue that she is the competent authority to appoint or extend such appointments it could be only done subject to the Constitutional Council approval.She does not possess total power in this regard, but has shared power with the Constitutional Council. The fact that she at first sought the approval of the council to appoint de Silva to act in the post of IGP proves that she cannot behave arbitrarily, as there is an accepted process in place.

However, on the contrary, the President whilst withdrawing the letter accepting his retirement, arbitrarily extended the term of the IGP for a further period of six months.

Political interference is not a new phenomenon in Sri Lanka, especially where the police force is concerned. Political interference in promotions, transfers and in other areas of police work have been reported in the print and electronic media as a matter of routine. However, extending the period of the present IGP by violating the constitution is a matter that  has to be considered seriously.


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