June 15, 2013, 6:55 pm


Last week’s cabinet meeting was described by one minister not just as the stormiest cabinet meeting since the present government came into power, but as probably the stormiest cabinet meeting ever held in this country since independence! For two hours complete bedlam prevailed.  Cabinet was divided between the anti-13th Amendment and pro-13th Amendment groups. While the likes of Vasudeva Nanayakkara, Dew Gunasekera, and Rajitha Senaratne were trying to speak, they were continuously interrupted by Wimal Weerawansa who even shouted "PRRA karaya" and "Minimaruwa" to Minister Rajitha Senaratne as he was speaking in favour of the 13th Amendment.




Dew Gunasekera had taken umbrage at what Wimal said to Rajitha and had told cabinet how he (Dew) had narrowly escaped death at the hands of the JVP in the late 1980s. Mahinda Rajapaksa who was then an SLFP parliamentarian had got wind of a plan hatched at the house of Wijedasa Liyanaarachchi to kill Dew and he tipped of the latter. Dew told cabinet that he had barely managed to escape death because of Mahinda’s phone call and that those who tried to kill them at that time were now sitting in the cabinet and accusing their former intended victims of being ‘minimaruwas’.


A furious Dew had told the president point blank that he had made a ‘mistake’ with regard to the 18th Amendment (by which he meant that he had voted for it) and that he was not going to make that same mistake again (which was a threat to withhold his support for any further constitutional amendments the government may propose). At one point, during the stormy exchange of words, Dew had got up and walked threateningly towards Weerawansa who was not allowing anyone in favour of the 13th Amendment to speak. However no actual assault had taken place. Weerawansa took umbrage at Dew using the word ‘thamuse’ to address him and he demanded an apology. Dew refused saying that he had addressed Weerawansa as thamuse because that is the way he should be addressed. Throughout this stormy debate, Champika Ranawaka had been behaving in an exemplary manner, opposing the 13th Amendment, but speaking only when it was his turn to do so. After all this bedlam, it was decided by consensus that an anti-merger constitutional provision will be presented to parliament. Even Dew had said that he too was not opposed to prohibiting the merger of provinces.


Discussion of the more contentious issues like police and land powers had been put off for the parliamentary select committee on the devolution of power that is to be appointed. Even those in favour of giving police powers to the provinces like D.E.W. Gunasekra hold the position that what should be given to the provincial councils should be truncated police powers  limited to things like traffic control and community policing. He too is well aware of the danger of giving wide ranging police powers to provincial administrations. Two weeks ago, Professor G.L.Peiris had said in cabinet that the 18th Amendment had vested police powers in the centre and that therefore there was no cause for concern on that account. This point was not elaborated on by Prof Peiris nor was it discussed at length in cabinet. Even at last week’s cabinet meeting, despite all the heat generated, nothing in relation to police powers was discussed. Everybody took the easy way out and decided to refer it to the proposed parliamentary select committee on devolution.


 Ninth schedule,


Appendix 1





But the question that arises is whether there is anything left in relation to provincial police powers for the parliamentary select committee to discuss. Close scrutiny of the 13th, 17th and 18th Amendments indicates quite clearly that the police powers allocated to the province through the 13th Amendment have now disappeared from the statute books. The present writer feels that this has happened more by accident than by design. If it was by design, then this clearly takes the cake as the most fiendishly clever piece of constitutional manipulation in post independence history. Provincial police powers have been ‘lifted’ from the constitution without anybody even realizing that they are gone. The main issue in relation to the 13th Amendment which has been raised by its detractors is not so much the merger provisions but the police and land powers that were accorded to the provincial councils through the 13th Amendment. Police powers in particular feature very prominently in the 13th Amendment to the constitution.  It is the first item on the list of powers devolved to the provincial councils. Apart from that, Appendix 1 of the Ninth Schedule of the Constitution which was introduced through the 13th Amendment has set out in detail how the provincial police service should function in relation to the national police service.


The 13th Amendment envisaged the separation the police force into the national division and  provincial police divisions for each province.  Appendix 1 of the Ninth Schedule to the constitution specifies for example that members of the national police service would ordinarily be in plain clothes in the provinces except when performing special duties in relation to the maintenance of law and order in that province. It has also set out in detail the powers of recruitment, transfer and disciplinary control of police officers at both the national and the provincial level.  According to the 13th Amendment,  the recruitment, promotion transfer and promotions  of provincial level policemen will be the responsibility of the provincial police commissions.


When the 1978 constitution was first formulated, the police were subsumed under the public service and there was no such thing as a separate police commission. As the 1978 constitution stood in its original form, cabinet had the powers of appointment, transfer, disciplinary control and dismissal of all public officers including the police. They could delegate these powers to the public service commission and the PSC in turn could on directives issued by the cabinet, delegate these powers to various committees in respect of the various categories of the public service. This order was changed when the 13th Amendment created the provincial councils in 1987, as the new amendment envisaged the creation of a national police commission and provincial police commissions for each province.  Under the 13th Amendment, the national police commission was to comprise of the IGP, a nominee of the Public Service Commission and a nominee of the chief justice. At the provincial level, the police commission would comprise of three members, the DIG of the province  a nominee of the Public Service Commission, and   a nominee of the chief minister.


Then came the 17th amendment to the constitution which stipulated that the power of  appointment, transfer, disciplinary control of police officers would be exercised by a National Police Commission  made up of seven members appointed by the president on the recommendations of the Constitutional Council.  Article 155G(1)(b) of the 17th Amendment specifically stated that the national police commission should not usurp the powers allocated to the provincial police commissions as and when they are constituted.  Subsections (1)(a) and (b) of Article 155G of the 17th Amendment said the following about the powers of the National Police Commission:


155G. (1) (a) The appointment, promotion, transfer, disciplinary control and dismissal of police officers other than the Inspector-General of Police, shall be vested in the Commission. The Commission shall exercise its powers of promotion, transfer, disciplinary control and dismissal in consultation with the Inspector General of Police.


(b) The Commission shall not in the exercise of its powers under this Article, derogate from the powers and functions assigned to the Provincial Police Service Commissions as and when such Commissions are established under Chapter XVIIA of the Constitution.


The reference to ‘Chapter XVIIA’ of the constitution in subsection 155G(1)(b) above is a direct reference to the 13th Amendment.  Chapter XVIIA was inserted into the constitution through the 13th Amendment. This new chapter contained the provisions for the setting up of Provincial Councils. Thus the 17th Amendment accommodated the devolution of police powers to the provinces. But the same cannot be said about the changes made by the 18th Amendment. The 18th Amendment made many changes to the provisions of the 17th Amendment. Among the sweeping changes made to the 17th Amendment were the following:


1. The all-powerful Constitutional Council envisaged in the 17th Amendment was scrapped and replaced by a Parliamentary Council made up of five individuals including the prime minister, the speaker and the leader of the opposition which would give their observations to the president on the appointment of members to the various commissions including the police commission.


2. The 18th Amendment has retained the National Police Commission provided for in the 17th Amendment, but in a truncated form. Whereas under the 17th Amendment, the National Police Commission had the powers of appointment, transfer, disciplinary control and dismissal of all police officers other than the IGP, that power has been taken away from the National Police Commission by the 18th Amendment.  The National Police Commission now has the power only to entertain and investigate complaints from members of the public or any aggrieved person against a police officer or the police force, and  to provide redress in accordance with the provisions of any law enacted by Parliament.


3. The 18th amendment has included police officers under the rubric of ‘public officer’.  The appointment, transfer, disciplinary control and dismissal of public officers (including police officers) is once again placed under the cabinet which can delegate this power to the Public Services Commission as in the pre-13th and  pre-17th amendment days.





The missing link





The most game changing provision in the 18th Amendment is the complete repeal of Article 155G of the constitution which was introduced by the 17th Amendment and which stipulated the powers of the National Police Commission. As we saw earlier, it is through Article 155G(1)(b) that the 17th Amendment ensured that the powers vested in the Provincial Police Commissions by the 13th Amendment remained intact.  The 18th Amendment has repealed Article 155G completely leaving nothing behind.  Hence, Article 155G(1)(b) of the 17th Amendment which ensured that the powers of the provincial police commissions envisaged under the 13th Amendment would remain intact despite the creation of the National Police Commission with wide ranging powers, is also now gone taking with it the space afforded to the provincial police commissions.


The 17th Amendment sought to make sweeping changes in the way the entire police force functioned. This was a constitutional amendment, and not an ordinary law and hence the changes made in the way the police force functioned had the effect of repealing all other provisions in the constitution relating to the police including the provisions in the 13th Amendment. Even if the 17th Amendment did not expressly repeal everything said earlier in the constitution about the police force, the doctrine of ‘implied repeal’ would have ensured that the new law replaced the old because in constitutional law it is impossible to have two mutually contradictory or overlapping fundamental laws of the land on any given matter.  The implied repeal doctrine is one of the oldest principles of statutory interpretation. This is why it was necessary to spell out in Article 155G(1)(b) of the 17th Amendment that the creation of the National Police Commission did not in any way affect the police powers that had been devolved to the provinces by the 13th Amendment.


 Now the whole of Article 155G along with its subsection (1) (b) which ensured a continued slot for provincial police powers has disappeared from the statute books. The police are now once again categorized as public servants and placed under the cabinet and the Public Services Commission with the truncated National Police Commission also playing a certain role. There is no provision in the constitution for the existence of a provincial police force any more. Some may argue that the 17th Amendment went, and the 18th Amendment came, but that the police powers given to the provinces in the 13th Amendment remain intact. But it I doesn’t happen like that in constitutions. The 17th Amendment made sweeping changes to the way the police force was to function. Appendix 1 of the ninth Schedule in the13th Amendment also provided for the setting up of a National Police Commission which was to comprise of three persons, the IGP, a nominee of the Public Services Commission and a nominee of the chief justice.


 However, under the 17th Amendment, a totally new National Police Commission was to be set up. The new NPC was to have seven members appointed by the president on the recommendations of the Constitutional Council and this National Police Commission was to have all powers in relation to the appointment, transfer, disciplinary control and dismissal of police officers.  It was because such sweeping changes were made in the existing law with regard to the police including the provisions in Appendix 1 of the Ninth Schedule of the constitution that was introduced by the 13th Amendment, that it became necessary to specify in the 17th Amendment that the setting up of the powerful National Police Commission does not in any way impede the police powers that were to be devolved to the provinces according to the provisions of Appendix 1 of the Ninth Schedule to the constitution. If not for Article 155G(1)(b) of the 17th Amendment, everything said in the 13th Amendment about police powers would have been rendered null and void with the promulgation of the 17th Amendment. So long as the 17th Amendment was in force, Article 155G(1)(b) provided room for provincial police powers.





Article 155G made


to disappear





But now that Article 155G of the 17th Amendment has been repealed in toto, no such thing as provincial police powers exist. If one were to argue that the provisions in relation to the police powers of the 13th Amendment still remain intact after it was amended by the 17th Amendment and  the 17th itself was amended by the 18th Amendment, then we would be confronted with many contradictions.  The first contradiction is that the 13th Amendment provides for a National Police Commission made up of three persons but the 17th Amendment provided for the setting up of a National Police Commission of seven persons with vastly expanded powers. Under the 18th Amendment, the National Police Commission still consists of seven persons but its powers have been vastly truncated. If anybody argues that the police powers as provided for in Appendix 1 of the Ninth Schedule which was inserted in the constitution through the 13th Amendment still remain intact, then the National Police Commission mentioned in the 13th Amendment also has to be in existence. It is clear that the National Police Commission envisaged in the 13th cannot exist concurrently with the National Police Commission instituted by the 17th Amendment and retained in a truncated form by the 18th Amendment.


 Someone may argue that while the provisions for a National Police Commission provided for in the 13th Amendment  may have been changed first by the 17th and later by the 18th amendment, that the powers relating to the provincial police still remain intact because both the 17th and 18th Amendments have ‘worked around’ the provincial police powers leaving them untouched.  The 17th Amendment did try to work round the provincial police powers by including clause 155G(1)(b) which expressly stated that the institution of a new National Police Commission does not vitiate the police powers vested in the provincial councils through the 13th Amendment.  But the 18th amendment has not ‘worked around’ the provincial police powers in that manner. Instead, the 18th Amendment has removed the link that existed between the 17th Amendment and the 13th Amendment in relation to provincial police powers. So now there is no link between the 18th amendment and the 13th Amendment in relation to provincial police powers.


 In fact the 18th Amendment does not recognize any provincial police powers at all. And the police power as conceived in the 18th Amendment directly militates against the existence of any provincial police force. As far as the 18th amendment is concerned, the police force are now categorized by Article 12 of the 18th Amendment as public servants with the cabinet having the power to formulate policy for the appointment, transfer, disciplinary control and dismissal of all public servants (as per Article 8 of the 18th Amendment) . The power of appointment, transfer, disciplinary control and dismissal of public servants including the police will vest in the Public Service Commission (also according to Article 8 of the 18th Amendment.) There is no room in this scheme of things for the existence of a provincial police force that will come under the purview of provincial police commissions as envisaged in the 13th amendment.


 If the provincial police powers were to survive, the 18th Amendment would also have to specifically say that despite any changes made, the provincial police powers envisaged in the 13th Amendment would remain intact. But that crucial ‘carry forward’ clause is missing in the 18th Amendment. So provincial police powers have both figuratively and literally fallen by the wayside in Sri Lanka’s constitutional journey from the 13th  to the 17th and then onwards to the 18th Amendment. Furthermore,  Article 33 of the 18th Amendment changes Article 155M of the 17th Amendment. The new Article 155M goes as follows:


155M. All rules and regulations and procedures in force on the date of the commencement of this Article relating to police officers shall be deemed to continue to be operative, until rules, regulations and procedures are made hereunder by the Public Service Commission.


 The only regulations and procedures that were in force in relation to police officers at the time of the promulgation of the 18th Amendment were for the national police force as there never was any provincial police force. According to the above provision in the 18th Amendment, only the public service commission can make any changes to the existing regulations and procedures. There is no mention of any provincial public service commissions or provincial police commissions here. So we see that changes made to Article 155M by the 18th Amendment confirms that the provisions relating to the police in the 13th Amendment have been superseded by subsequent constitutional amendments. As things, stand, no constitutional amendment is necessary to abolish the police powers in the 13th Amendment – they have already been abolished. On the contrary, if the police powers envisaged in the 13th Amendment are ever to be implemented, THAT is what will require a constitutional amendment - to reinstate in the constitution the provisions relating to the provincial police forces.

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