Police powers, policing the powers

The post-war ethnic discourse in Sri Lanka has often been interspersed with election campaigns of one kind or the other. It was so during much of the era of ‘Eelam War-IV’, but the battle bugles had suppressed the electoral loud-hailer. Today, poll campaigns have taken the place of those bugles, putting stake-holders on the defensive. They are forced to look introverts in electoral terms, and not extroverts in political terms. This puts the nation on the election mode near-eternally, and often away from the ethnic-solution mode.

For a political solution to emerge, all stake-holders have to put the past where it was, and begin on a clean slate. The Government’s concerns on the security front with regard to police powers for a Tamil Province are real. This flows from the immediate past. If so, it should also be willing to acknowledge the Tamils’ suspicions about ‘unkept’ promises from the past - almost since the days of the ‘Sinhala Only’ law, the B-C and D-C Pacts.

The reverse is also true. If the Tamils want to recall the past in terms of processes and promises, they should be willing to address the mistrust of the Sri Lankan State in matters of national security. Neither side can be selective in recalling the past, expecting other(s) to live in the present and work for the future. All processes should have universal application for all stake-holders when it comes to plans, processes and promises.

There are others in the process, and the Tamil National Alliance (TNA) needs to acknowledge them. One-on-one discussions with the Government could throw up clarity to the course, but it cannot contribute exclusively to a solution. They need to acknowledge how despite a five-sixth majority in Parliament, President J. R. Jayewardene could trigger internal rebellion from within his UNP, leading to the non-implementation of 13-A after his term in office.

Exclusive negotiations between the Government and the TNA smacks of claims to ‘sole representative status’ -- and not just by the TNA. At the time 13-A became law, the Government had much more than the numbers that the incumbent now has in Parliament. The TNA needs to ask itself if the Tamils need a law that works on the ground, or another piece of wall-flower legislation that neither of the ‘Big Two’ in national politics, namely the incumbent SLFP and bête noire UNP, attempted to implement while in power.

The PSC process instead addresses all concerns. Greater the consensus that emerges in Parliament for a political solution backed by constitutional amendments, greater is the chance of their universal implementation. Greater the opportunities for a national discourse, greater are the chances that prospective judicial concerns about the constitutionality of the amended laws would be addressed by the Legislature. The merger/de-merger issue should be an eye-opener in this regard.

The proposed process of Parliament Select Committee (PSC), divined by the Government, of course as an after-thought when the negotiations with the TNA was not moving forward, offers other political sops, too. It would help the TNA to retain a modicum of the ‘sole representative status’ within the Sri Lankan Tamil community and also the larger Tamil-speaking people and their polity. It is the only Tamil political forum with which the Government has had any serious discussion on post-war matters affecting the community in any serious fashion.

For the Government, the reverse is the truth. It does not have to take the sole responsibility for sensitive passages in a political solution. If nothing else, the political opposition to the leadership of President Mahinda Rajapaksa would not have an electoral edge on the ethnic front. A national discourse of the kind would also ensure that the kind of ‘Second JVP insurgency’ is not repeated. From the Tamil side, the discourse could help eliminate in the minds of the Sri Lankan State and the Sinhala polity, starting with the self-styled ‘nationalists’, any possibility of a return to and of Tamil militancy.

Less than a handful of issues

Going beyond the traditional arguments on either side, the issues boil down to less than a handful. The Tamils may call it ‘basic issues’. Topping the list in political terms but lying at the bottom of it all could be the question of the re-merger of the North and the East. The Supreme Court having invalidated the merger of 1987 even when approached years later, the entire issue needs to be revisited under the changed circumstances.

The Tamils have to ask themselves if a merger on the ground is workable without the whole-hearted participation of all sections in the East. Nor could the East be made a pawn in the political dialogue of which they or their political representatives do not have a part in. The LTTE learnt the hard way when such an approach led to the ‘Karuna exit’. The Muslims and Sinhalese in the East are also stake-holders – to a greater degree in most parts, given the issues and concerns the kind of which the Tamils evoke at national-level.

Here again, the PSC could provide a venue and a way out. It could also eliminate the need for the Government having to engage various segments of the society, not just in the East, but in the North, South and from across the country. The PSC, having the political and constitutional authority, could address the concerns of civil society groups without having to provide an expansive platform for them.

The alternative courses could make the process unwieldy, unmanageable. In the past, such efforts have had the tendency to derail the very process. This however does not mean that the government and the stake-holders should not consider alternative processes. The government should consider the efficacy of such methods, if put forth from whatever quarters, with openness of heart and sincerity of purpose.

The second issue pertains to police powers for the provinces. The issue flows out of mind-sets that are mired in the past. If reservations were expressed in this regard even before the ethnic war took a serious turn since the late eighties, they could have only increased in the post-war context. It is not about immediate return of Tamil militancy but about distant revival. These are possibilities, and the probability could well be nil. But modern states often operate on the principle of ‘cautious optimism’, not even ‘optimism with caution’.

The Tamils’ basic concerns about police powers for the provinces would not end with conferment of the same on the provinces. They need to address the problems that would still be faced by their people outside of the North, and the East to a lesser extent. In terms of language-linked powers of the kind, the TNA and the rest of the Sri Lankan Tamils are also speaking for their Tamil-speaking brethren from the Muslim and upcountry Tamil communities. While doing so, they should be conscious of their commitments and compulsions.

Such powers hence should have universality of application in addressing the original issue of the Tamil-speaking people not being able to do government business in their language, or enter government service after ‘Sinhala Only’ became the law. If the argument is that all upcountry Tamils know Sinhala, and so do most Tamil-speaking Muslims, then they would have to answer why the rest of ‘em all could not learn an additional language. This would be particularly so, considering that the Sri Lankan Tamil community has rightly prided itself over its academic attainments and intellectual capacities.

The issue, if not addressed adequately, could lead to an unending political debate all over again, so the answers have to be found within. The Tamils’ problems on this front would not end with the attainment of police powers for the provinces. They need to address the issue of having more Tamil-speaking policemen across the board, as used to be the case before ‘Sinhala Only’ made it impossible. The minimum solution lies in the demographic redistribution of Government jobs based on provincial needs. This could mean that some form of ‘linguistic reservation’ at the Central and Provincial level should be thought of.

In addition to real benefit of the kind flowing from such a scheme, the Tamils of the North need to be reassured that their parliamentary representation would not be altered until their migrant population stabilised in the war-torn areas. At present, they stand to lose five representatives to the national Parliament from the Northern Province, after a head-count became possible after four long decades.

If the proposals before the Dinesh Gunawardene Committee were to be given effect, delimitation of electorates could lead to upcountry Tamils of recent Indian origin losing numbers in Parliament, too. A constitutional guarantee for not revisiting the parliamentary representation and delimitation of electorates until after a whole new generation is born and has grown up in the post-war era could be the answer. Census-2014 could be the cut-off period.

Not sops, but solutions
These are not sops, but are solutions to issues that had not been thought of when the problems hit the Sri Lankan nation on the face decades ago. Yet, they could also provide the political via media for the stake-holders for making the required adjustments, and for adopting a give-and-take policy, overall. After all, solutions flow from negotiations, either at the national-level or within the confines of closed chambers. Negotiations in turn pre-suppose accommodation by all stake-holders.
In this context, the stake-holders could consider incremental devolution as a way out, particularly in the context of Police powers. Pre-determined bench-marks for future increments on either side could also be included in the final package. It could be through a parliamentary resolution, if writing them into the Constitution and other laws of the land are considered impossible. Such a course however should not foreclose the possibilities of an open-ended approach to problems attaching to police and other provincial powers, per se, now or later. After all, technology is a driver and it could provide solutions in the future where none could have been dreamt of in the past or even in the present.

For starters, the provinces (read: Tamils’) could settle for ‘community policing’ whose conduits should be contextualised to the Sri Lankan situation. It has to be different from the ‘campus police’ in the West. Better still could be the western model of multi-layered policing as down to the Sheriff-level, where local communities get adequate representation at that level. This would be particularly relevant to the Eastern Province and the Western Province, where the demographic distribution of the population has to be acknowledged as such.

The Provinces could move beyond ‘community policing powers’ now or later. For this to happen immediately, the security concerns of the Sri Lankan State in the immediate in particular would have to be addressed. The Centre may thus have to be given powers to ‘dismiss’ elected Provincial Governments for ‘breach of internal security’. As a reverse-guarantee, the Supreme Court could be the final arbiter, and be constitutionally called upon to attest the Centre’s decision, before full implementation. The period of the Centre’s takeover and rules of withdrawal/extension too would have to be written into the Statute at the outset.

For such a scheme to be effective, the court could be allowed leeway in adopting the methods it may deem fit under given circumstances – as in opting for ‘in camera’ hearing and the like. The Tamils should give up the past practice of seeing ethnicity in the constitution of the Benches of the higher courts hearing cases in such contexts. After all, it was the Supreme Court that ordered the removal of check-points in the Capital City of Colombo at the height of ‘Eelam War-IV’. The court also intervened to stop ‘bus search’ for Tamil militants on the highways, rooming-house raids in Colombo City, and house-searches likewise elsewhere too – all when the nation was gripped in ‘Eelam War IV’.

The Centre could then move forward to have para-military forces under the Home Ministry at its command, stationed in the Provinces, possibly replacing the armed forces on the streets, wherever they have their visible presence now. It could also set up separate investigation mechanisms for trans-national and inter-provincial crimes, and also crimes involving its officials and those directed by the higher judiciary in the country. This should address the legitimate concerns of the Sri Lankan State in the matter.

Creating a paramilitary force out of the armed forces as they exist now would also help maintain the basic discipline of the armed forces, and delineate the latter only as a war-machine, training in the barracks. The paramilitary force could then also be considered a ‘National Task Force’, which job it is performing now only in the war-torn areas with effect. The Government could consider restructuring the Civil Defence Force, accordingly. In the Tamil-speaking areas, it could thus provide chances for lateral entry for the locals, too.

On Land and Fiscal Powers
On yet another contentious issue, namely, land, the non-functional Land Commission could be activated to delineate the possession between the Centre and the provinces. Maybe, a new element would have to be looked into, in the form of Local Government authorities. Elsewhere there are working models in the neighbourhood and afar, which can be adapted with ease to local conditions.

Already, the Supreme Court has taken a position on the prescriptive period for land alienation. Otherwise too, the Constitution having conferred Land powers on the Provinces, the Government (read: the Centre) may have to re-look at the alienation procedures adapted for the armed forces and other agencies purchasing land, particularly in the North and the East, for their legitimate usage. It is another matter that the armed forces cannot be expected to dismantle the high security zones (HSZ) and vacate private property without acquiring alternate sites. The wisdom of the armed forces should be trusted in deciding on the future land usage of theirs and planning and procuring land accordingly, where they already are vacant at present.

Sovereignty and ‘Sovereign Guarantee’

Sri Lanka has a unique structure for dividing fiscal resources of the Government, between the Centre and the Provinces. The Finance Commission has members chosen not just on merit but on ethnicity. It is inevitable that Governments would tend to favour those that they are comfortable with. Post-war, the Tamil community in general and the TNA in particular should shed this complex of ‘our Tamils, and their Tamils’. It should extend to other walks of life, starting with politics. Such divisions have ruined the community enough. It has destroyed individuals even more.

On the question of borrowings from overseas, another area of provincial concerns independent of ethnicity, there are governing principles and rules for the purpose already in the country. External lenders whether nations or institutions, are not going to extend credit facilities to provinces without ‘sovereign guarantee’. The LTTE’s ISGA proposal of October 2003 in this regard was seen as a half-witted attempt at skirting the larger question of ‘sovereignty’. It should not be a threat, or even an issue, in the changed circumstances. The Centre’s decision in terms of ‘sovereign guarantee’ and procedures in the matter should not be a problem in the normal course.

It is not as if the stake-holders do not have other blueprints for a political solution, or do not have access to even more. The problem is neither in the principles, nor in the processes, as is being made out to be from time to time. If anything, principles are being cited and processes re-invented, as if by an argument to stall proceedings that the stake-holders otherwise seem wanting to avoid. After all, the Mangala Moonesinghe Select Committee was a parliamentary process. The Chandrika Packages too were one – just as the Thirteenth Amendment was.

What is now needed are not necessarily processes or even principles. Instead, the stake-holders need to decide that they want a solution, a solution for their people. Their leaders too should be leading from the front, and not cave in, into defensive positions. It is all about mind-sets that are steeped in the past in other people’s experiences, not their expertise – nothing more, nothing less.

That way, political administrators cutting across ethnicity should ask themselves if they are willing to share power with their grassroots for starters. The Tamil polity, the TNA in particular should also look inward to see if they can measure up to the challenges of political administration at one go. At the end of the day, they not only do not have any political-administrative experience. The dictates of the LTTE ensured that they do not have any exposure to political administration even otherwise. They have remained Her Excellency’s Royal Opposition under President Chandrika Kumaratunga – and His Excellency’s Royal Opposition under President Rajapaksa. Nothing much has changed on that score, otherwise!

It may thus be good for the Tamil community and the TNA alike that the party contests the Northern Provincial Council elections first, wins if that is the people’s wish and run the administration in an effective manner, learning the tricks of as they progress and demanding more as they learn. For this to happen, and to win back a part of the trust of the Tamil people, the Government can start with early elections to the Northern Provincial Council, and have none other until the PSC had done its job – lest electoral politics could derail the process all over again.

It could happen with an elected Tamil Government in the Northern Province as early or as late as the auspicious and equally prosperous Tamil harvest festival of ‘Thai Pongal’ in mid-January 2013. It need not have to wait until September 2013, as President Rajapaksa indicated some time back. Who knows, it could acquire for the Government the required respite at Geneva, too, after the Action Plan on LLRC Report has done its bit in the matter.