By Laksiri Fernando –

Dr. Laksiri Fernando

It is undoubtedly an odd name. Probably the brother himself must have given the ‘dead rope’ to the President who is obsessed with not so much of law but ‘order.’ There was only one country with a ‘Ministry of Law and Order’ to my knowledge in the world and that was Apartheid South Africa before 1994. After the demolition of that brutish regime, a new ministry was created called the Ministry of Safety and Security to take charge of the police (SAPS). Still South Africa is beset with issues of crime and safety as a legacy of the past.

In India, there is a Ministry of Law and Justice and that is very much similar to our current Ministry of Justice and Law Reforms. The police service in India comes under the Ministry of Home Affairs. Now in the past, the police have been shifted between Defence and Home (and Internal) Affairs, back and forth, several times, and this is the first time that it was placed under an odd ministry. Even this time, it should have been placed under the Ministry of Home Affairs and Public Administration and the Minister being none other than WDJ Seneviratne.

There are contradictory reports as to the formation of what the Daily News (24 August 2013) called the ‘Brand New Ministry,’ as if it is another miracle of Asia.[1] Both the banner headlines and the content of the lead story say the “President issues extraordinary gazette notification, brand new ministry is born and will formulate policies for Mahinda Chinthanaya implementation.” No report and especially headlines could be taken on the face value, but if they are any indication, there are dangers of further politicisation of the police service in the future.

Mahinda Chinthanaya has nothing to do with the police and law and order. It is basically a political manifesto. If the task of the new ministry is to implement this political manifesto, then only god knows what will happen to the country and the police. When the police directly come under extremely a partisan and a political president, then the independence of the police will completely be hampered. There will be lot of traffic in the Temple Trees area, the IGP and many DIGs, IPs and even henchman police constables going back and forth, on ‘beck and call.’ The remaining independence and dignity of the police service will be denigrated. When Aemilia Lanyer wrote her poems Salve Deus Rex (meaning Hail the God King) in 1611 this is what she said about a similar situation:

“The Muses doe attend vpon your Throne,
With all the Artists at your becke and call.”

There of course can be a good side to it. After the police come under the President directly, there will be no excuse for corruption, negligence or inefficiency. One may argue the other way round. Moreover, efficiency is not the only quality required by the police. Fairness and justice are much more important. It is in this context that the police should have been placed under the Ministry of Home Affairs, rather than creating a new ministry. It is part of the public administration.

According to a Colombo Page report (23 August 2013) “rising communal extremism and deteriorating law and order situation” is the main reason to establish the new ministry. If this is correct, then there is a clear admission of failure when it was under the Ministry of Defence! Yet again, the Minister is the same and that is the President himself. This is undoubtedly confusing unless there is an admission of the failure of the Secretary of Defence or his bias, especially handling ‘communal extremism.’ He is President’s own brother.

It is in this context that what was said by the Secretary of Defence is important. Perhaps it was in defence, not the country but himself. The lead story of The Island newspaper on Saturday (24 August 2013) reported with its banner headline “Police, STF placed under new ministry in line with LLRC recommendations – GR.” It also revealed the following.

“Asked whether the ongoing controversy over the military crackdown on the August 1 Weliweriya protest had prompted the sudden decision, the Defence Secretary said that the new ministry had been created in keeping with the recommendations made by the Lessons Learnt and Reconciliation Commission.”

What he categorically said was that it has nothing to do with his incompetence in settling the Weliweriya crisis, even after sending the police from the beginning or even the army and also having several discussions with the disputed parties, but faithfully following the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC).

If that is the case then the unanswered question is that why it is done at the very brink of the UN Human Rights Commissioner’s visit to Sri Lanka giving the impression that the government is after all towing the line of the UNHRC, prompted by the US. Otherwise, there was ample time before to implement the LLRC recommendations. There is an obvious connection between the High Commissioner’s visit and the creation of the new ministry but not necessarily with the LLRC recommendations. Or, if at all, the connection between the two is very remote. It is not very clear whether the intention is to deceive the UNHRC or the people, or both.

The connection between the two can be claimed resting on the recommendation number 8.193 of the LLRC Report which says

“The Police Department is a civilian institution which is entrusted with the maintenance of law and order. Therefore, it is desirable that the Police Department be de-linked from the institutions dealing with the armed forces which are responsible for the security of the State.”

The key positions that the LLRC had maintained were (1) the police department is a civilian institution (2) it is entrusted with the maintenance of law and order (3) therefore it should be delinked form the institutions dealing with the maintenance of armed forces (4) the armed forces are responsible with the security of the State (not obviously law and order).

The LLRC has nowhere recommended or hinted the creation of a new ministry. Perhaps they were thinking in terms of the tradition and the practice in other countries and that means the police again coming under Home Affairs. The creation of a new ministry is not the major issue, but the absence of the recommended ‘delink.’ The name for the new ministry is also not the main issue, but it has hilariously been taken either from Apartheid South Africa or what the LLRC says as the task of the police department: the ‘law and order.’

What is implemented is not a tangible delink but rather a camouflaged bifurcation. Now the ministries are different, but both (rivers) flow from the same source, the same Minister. And the Minister is the same President. The Secretaries to the two ministries are also former army personnel. One is the Minister’s or the President’s own brother and the other one is also good as ‘family.’

What is also shown by the recent move is the reluctance of the power holders to give up crucial power bases from the family grip, the army and the police.

If the creation of the new ministry is along the lines of the LLRC recommendations, then the other recommendations integral to the above recommendation also should follow. If that is properly done, then I will take my hat off. The above recommendation to delink the police from Defence comes in the section of the LLRC Report called the “FAILURE TO GIVE EFFECT TO THE RULE OF LAW.” The title itself is significant categorically emphasising the FAILURE. I am not capitalizing the title of the section, but it is capitalized in the Report.

There are 4 major areas of observation from 8.185 to 8.188 subdivided into 11 categorical clarifications with substantial evidence and then comes 6 recommendations from 8.189 to 8.194. It is not the purpose of this article to discuss all the recommendations, but 8.194 should be emphasized as the final and the most important. This follows from the recommendation to delink the Police from Defence and it is about an Independent Police Commission as follows.

“The Commission is of the view that an independent permanent Police Commission is a pre-requisite to guarantee the effective functioning of the Police and to generate public confidence. Such a Commission should be empowered to monitor the performance of the Police Service and ensure that all police officers act independently and maintain a high degree of professional conduct.”

The supporters of the government may argue that there is a National Police Commission now functioning and it was appointed after the LLRC recommendations in November 2011. Yes, that is the case in respect of the appointment, which was done in February 2012. However, it was there in the Constitution ‘amputed’ under the 18^th Amendment in October 2010. If it were a question of appointment, then the LLRC could have said so. When it says “The Commission is of the view…” it says something different and something crucial. And it is about the ‘Independence of the Police Commission’ which is pathetically lacking in the appointment of the present National Police Commission and its powers and functioning.

It is the President who is the ‘Minister of Police,’ now and even before, and it is the President who appoints the Police Commission. It is the same President who is the Minister of Defence. Where is the De-link?

What a Tragedy?