Columns

Assessed on jaundiced experiences of Sri Lanka’s political history, the manner in which a Government responds to protecting the institutional independence of the country’s National Police Commission (NPC) has always been an early warning test to judge how rhetoric on democracy measures to reality.

 An ‘interventionist‘ NPC

The best example to date remains the fate of the very first NPC established following the 17th Amendment to the Constitution (2001) under which the Constitutional Council (CC) conceived to act as a check on executive power had a majority of civil society members as against political representatives. Here, the rosy blush of good governance promises by the Chandrika Kumaratunga Presidency soon lost their sheen.

That was when ruling politicians quickly realised that they could not transfer ‘disobedient’ police officers from their posts or discipline them with that power being handed to the NPC. Headed by an experienced criminal lawyer of repute, the first NPC had the courage of its conviction to direct the interdiction of police officers indicted for grave human rights abuses. This bold stand did not last very long with the combined force of the political establishment wielded against it.

That NPC was accused of being too ‘interventionist’, ‘how can the Government rule or the Inspector General of Police (IGP) control his officers when outsiders interfere?’ it was asked. From that point onwards, it was a roller coaster ride downhill with so-called ‘independent constitutional commissions’ including the NPC being done away with in some instances, rendered inactive in other periods and then brought back as pale shadows of what this body should be.

 The constitutional
‘bad and the ‘good’

That was done in a dizzying cycle of constitutional amendments under various regimes which made Sri Lankans detest the very idea of the Constitution being the ‘fundamental norm’ of a nation-state. It was no wonder that some of the more radical activists of the 2022 ‘aragalaya’ (protest) called for the burning of the Constitution. They were rightly repelled by the sight of the same parliamentarians raising their hands for the ‘bad’ 18th and 20th amendments as well as the ‘good’ 19th and 21st amendments.

So too did the Supreme Court, we must not forget, sign off on each of these amendments, fundamentally contradictory as they were to each other. And as is evident with foresight, while the ‘bad’ was really bad, it is a matter of argument as to whether the constitutional ‘good’ was all that it was touted to be. How much of these constitutional changes actually impacted ordinary Sri Lankans?

But that remains a discussion for another day, probably far sooner than later given storm clouds of a new Constitution with the imprimatur of the National Peoples Power (NPP) Government. A bizarre harbinger of what we may expect is a proposal to change the now minority numbers of civil society members on the CC ‘every time a Prime Minister changes.’ That has been accompanied by the proclaimed intent to change the composition of the ‘independent constitutional commissions.’

The Government’s
democratic fault line

The NPP has seemingly grumbled that the commissions have members appointed by predecessor governments. ‘The Government should be entitled to make fresh appointments when a new administration is in power’ the public has been told. The fact that such chopping and changing is exactly what the Rajapaksas did through their ‘bad’ constitutional amendments (18th, 20th) seems to be an irony lost in this extraordinary justification.

That apart, if constitutional amendments are made each time a new Government comes into power as a tactic to meddle with the composition of ‘independent commissions,’ that exposes a basic fault line in their good governance mandate. So as much as the NPP has forgotten its key mandate pledge to abolish the Executive Presidency, it may also evince convenient amnesia in respect of promises to protect governance bodies.

In fact, there is little point of announcing, as the Prime Minister did recently in heralding the establishing of a Womens’ Commission as the newest ‘independent commission’ if the Government’s approach to oversight commissions is so cavalier. Where this particular Commission is concerned, its members have reportedly complained that they neither have office space, staff or resources to function.

The Opposition’s boasts

That is scarcely reassuring to say the least. But, to return to the chequered topic of the ‘independence of the NPC’ and the Opposition’s much hyped adjournment debate this week, several questions arise for public scrutiny. If the Opposition was anxious to focus on this as a ground of public concern, should it not have ensured sufficient numbers on the opposition benches rather than a few scattered parliamentarians?

In the wake of that failure, the boast that the adjournment debate ‘prevented’ the Government from issuing a gazette notification ‘undermining’ the independent powers of the NPC rings a trifle hollow. This is where democracy fails, not through actions of those in power alone, we must be reminded. In substance, the debate itself was weak in content and structure.

At its core were allegations by Opposition parliamentarians of ‘illegal transfers’ of officers in charge (OICs) of police stations. The NPC has the constitutional power under Article 155G in respect of appointment, promotion, transfer and disciplinary control of police officers other than the IGP. This is again one of those maligned constitutional provisions that war repealed and then restored ad nauseam so to say.

Precedents that do not
prove the argument

On its part, ruling parliamentarians sneered at the lack of strength on the opposition benches. Perchance it may be justified in doing so but that said, the Government did itself no credit either on multiple fronts. First, the Public Security Minister’s claiming of ‘precedent’ for previous ‘transfers of power’ from the NPC to the Inspector General of Police (IGP) to support the argument that this was all a storm in an Opposition teacup, raised a few sceptical eyebrows.

Earlier too, the NPC had ‘transferred its powers’ to the IGP, he said citing a gazette notification dated May 6th 2016. However his explanation is shot through with a highly misleading misconception, deliberately or not. Put bluntly, the thrust of his explanation that ‘there is precedent for this, nothing extraordinary was happening currently’ is far from the case. This gazette notification delegated to the IGP some of the NPC’s powers of appointment, promotion, transfer and disciplinary control of police officers.

But that was with a strict caveat. Namely the delegation was only in respect of officers below the rank of Chief Inspector (CI) and that too, excluded OICs. That clear and express exclusion of OICs from the reach of the delegated power to the IGP is evident for a child to see. Essentially, this is not a ‘transfer of powers’ from the NPC to the IGP per se but subject to strict limitations.

Charades of governance

That is precisely where tensions have arisen, surfacing previously as well with the IGP (when acting in the post) insisting that he be given control over Sub-Inspectors, Inspectors, and Chief Inspectors serving as OICs particularly in respect of transfers to properly ‘discipline his officers.’  These are shades of the same arguments that we heard from 2001 onwards as to why the NPC should not interfere with the IGP’s command of his officers.

This time around, there is another layer to this debate. Transfers of police officers in regard to whom the NPC has specifically retained its powers, are alleged to be exercised ‘under the table’ by the IGP contrary to the relevant gazette notification. So was the contemplated gazette notification aimed at ‘legalizing’ this practice with the NPC delegating powers over senior officers as well to the IGP?

If so, there is certainly no precedent for this in previous gazette notifications as the Public Security Minister claims. A far more honest option would be to do away with a ‘toothless’ NPC entirely.  That would be preferable to tasteless charades of democratic governance.