Colombo Telegraph

Intentional Violation Of The Constitution?

By M. A. Sumanthiran –

M A Sumanthiran MP

On 30th July 2013, President Mahinda Rjapakshe, at a breakfast meeting with the editors is reported to have categorically declared that he will not devolve land and police powers to the provinces.  It was further reported that he stated that the delegation of these powers has not been implemented since the introduction of the Provincial Council system and it is not necessary to give it any consideration now.  When the President refers to land and police powers, what is he referring to? He is referring to provisions in the Constitution of the Democratic Socialist Republic of Sri Lanka, the supreme law of our land, which by the specific provisions of the 13th Amendment categorize land and police power as subjects under the purview of the Provincial Councils. He is in effect stating that these provisions of the Constitution have not been given effect since 1987 and that he has no intention to give any effect to it now. It is a dangerous mindset that has seized the governing powers of the day, one that unabashedly and brazenly refuses to uphold the Constitution. This habitual disregard and non implementation of the Constitution is the one that has eroded the supremacy of the Constitution. Disregard for the supreme law trickles down to an erosion of the rule of law in a country, and reflects in the incidents of lawlessness on the ground. The recent reports of appalling conduct of certain provincial councillors and high ranking police officers are an indicator of this mindset. The impunity which follows is a mechanism of self defence employed by those who flout our laws and further entrenches a norm of lawlessness. The impact of this on the psyche of the masses is one of mistrust of politics and government in general.  

The Constitution is not the kind of document from which one may cherry pick provisions for implementation to suit the fancy of one person or one political party. It is the cornerstone of the aspirations of the peoples of this country, it is the code by which all actions of public officers, including the President, are governed and against which all actions are evaluated. That is why ‘intentional violation of the Constitution’ is one ground for the impeachment of the President. It is the supreme law having as one of its objectives to serve as a check on the exercise of executive power. The responsibility of public office is to protect and uphold the Constitution. The oath taken by the President for example is a solemn declaration that he “will be faithful and bear true allegiance to the Republic of Sri Lanka, that I will uphold the Constitution of Sri Lanka and shall faithfully perform the duties and functions of the office of President of the Republic of Sri Lanka in accordance with the Constitution and with the law.” Public office is a creature of the Constitution and there can be no confidence in a chief public officer who expressly denies the country its constitution. Most significantly the Constitution does not grant the power to arbitrarily suspend any part of it to any public officer, including the President. Therefore the obligation towards the Constitution is solely positive and in advancement of its design.

As our grund norm, the Constitution provides a fundamental sense of certainty. Suspending any part of it must prompt action by the people that the Constitution protects. Imagine if the executive were to suspend the fundamental rights chapter of the Constitution. The citizenry has been robbed of their constitutionally guaranteed rights by the deliberate denial of devolving certain powers to the provinces. The Provincial Councils have undeniably demonstrated and are living proof of stronger participation and accountability at the provincial level. It is a given that politics experienced at the center also devolves and a politics of the provinces emerges. Politics as a process of engagement must be disentangled from corruption which has become synonymous with politics. In response to a previous article of mine, a criticism was levelled at my insistence on devolution of police powers, that it was an encouragement of further politicization of the police force and facilitates devolution of corruption. It is important not to confuse politics with corruption, although I can understand how this can happen in our context. Let me revisit the question of devolving police powers to demonstrate the workings of devolution and the determinative power it affords to all provinces.

Firstly, a look at the practice that necessitates a close connection between police power and community. A local police force is equipped to understand and appreciate the local social issues peculiar to the local context and is able to respond appropriately. A local police force will be equipped with knowledge of local customs, practices and laws. By reflecting a representiveness of the community it serves, a local police force is able to encourage trust and confidence. This is underpinned by the notion of being protected by one of the community’s own. It enhances the ability of the police, by ensuring constituent representation, to protect the interests of the community. A local police force is essential to building police-community relations. Consequently the subject of law and order is intimately connected to the people it seeks to protects and is an essential element of having the decision making power to govern oneself.

Secondly, let me address the frequently levelled and completely unsupported argument that devolution of police power will lead to chaos and disorder, and separation. Police power is the first subject in the Provincial Council List in the Eight Schedule in the Constitution, titled ‘police and public order’. The limits and mechanism by which the police power is devolved is described in detail in Appendix I to the Eighth Schedule. It sets out that the Sri Lanka Police force will consist of a National Division and Provisional Divisions. The scheme of appointment, promotion and transfer is detailed. The Provincial Divisions feed into the National Division which is centrally controlled. The schedule to the Appendix also sets out a list of subjects which are only the purview of the National Police, offences against the state, offences relating to the armed forces, to elections, currency and stamps, against the President, national security and so on. It is clearly not unfettered or unbridled police power that is provided for in the 13th Amendment. It is then this clearly limited power that is being sought to be denied. Any premonition of chaos and disorder or a runaway provincial police force is clearly based on ignorance of the constitutional provisions or a deliberate attempt to create fear.

The 13th Amendment is problematic and insufficient for good reason. It devolves power but in no real measure. If devolution in this state is what is sought to be prevented, apart from the deliberate flouting of the Constitution, there is really nothing on which a dialogue towards building this country and bringing peace can be pinned on. The Constitution is a bulwark against domination by those in power. It protects not only the minorities in this country, but its citizenry in general. It also pursues a realization of sovereignty for its peoples, it devolves power to all regions so that each regional population has authority over how their lives are governed. The Tamil people have felt repression by fear and of opportunities denied, they have experienced having no control over their lives. This experience prompts their voice to be strongest in demanding that the Constitution, in the least, be fully implemented. It is not however a demand peculiar to this people. At least two other provinces have passed resolutions in the past demanding that police powers be devolved as mandated in the Constitution.

President Rajapakshe has thought it fit to denounce and decry provisions of the Constitution to suit his personal preferences. All of us have the right to criticize even the provisions of the Constitution. But none of us, certainly not the President of the Republic, has the right to intentionally violate the provisions of the Constitution. Prescribed consequences must follow if we do that.

*The author, M. A. Sumanthiran (B.Sc, LL.M) is a Member of Parliament through the Tamil National Alliance (TNA), a senior practicing lawyer, prominent Constitutional and Public Law expert and civil rights advocate

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