Devolution of Police Powers a Guide for Decision-Makers

A Guidefor Decision-makers Powers Devolution Police of 2016 October Law & Governance Devolution of Police Powers A Guide for Decision-makers

This guide was compiled by a team comprising K.C. Logeswaran, V.T. Thamilmaran, Viran Corea, Niran Anketell, Galusha Wirithamulla and Vidya Nathaniel.

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Table of Contents

Executive Summary ...... ii part 1: the framework ...... 1 1.1. Constitutional framework ...... 1 1.2. The nature of powers relating to law and order ...... 1 1.3. The scheme of devolution of police powers envisaged by the 13th Amendment ...... 3 1.4. Changes effected to the NPC of the 13th Amendment by the 17th and 18th Amendments to the Constitution ...... 5 1.5. The current status of devolution of police powers ...... 7 part 2: scope for maximising the framework ...... 8 2.1. How the Centre maintains control ...... 8 2.2. Centre’s power to prevent creation and functioning of Provincial Division ...... 8 2.3. Centre’s powers to maintain control even where Provincial Police Division is established ...... 9 part 3: reform ...... 12 3.1. Expanding regional control over police powers beyond the maximum via constitutional interventions ...... 12 3.2 Options for reform ...... 12 3.2.1. The insulation of the police from arbitrary political

3.2.2. The modalities of appointing and dismissing the head of the influencepolice force ...... 13 3.2.3. Security of tenure ...... 14 3.2.4. Powers of appointment, transfer, promotion and disciplinary control ...... 15 3.2.5. Accountability mechanisms ...... 16 3.2.6. Provisions relating to emergencies and public security ...... 17 part 4: comparative analysis ...... 19 4.1. Overview of separatist movements in Canada and the United Kingdom ...... 19 4.2. Summary of organisation of police forces ...... 19 4.3. Comparative analysis of legal/political provisions and mechanisms

could arise from the devolution of police powers ...... 20 annexure ...... developed in specific jurisdictions to address possible concerns that 29 Canada ...... 29 United Kingdom ...... 31 endnotes ...... 37

Page i Devolution of Police Powers

Executive Summary

In 1987, the 13th Amendment to the Constitution 13th Amendment. The powers relating to police, was passed in order to devolve powers to Provin- which is one of the main law enforcement agencies, cial Councils, as a step towards solving the ethnic are almost entirely based on the executive. The th measures implemented through the 13th Amend- Amendment sought to divide the exercise of leg- ment create an institutional framework that would islativeconflict. andThe executivescheme of powers devolution of the under government the 13 secure the autonomy of the police service and pro- between the central and provincial governments. tect it from political interference. To this end, the constitutional amendment creat- th ed three lists, namely the Provincial Council List, The 13 Amendment provided for the devolution of the Reserved List and the Concurrent List, among powers in respect of police and public order under Item 1 of List 1 (i.e. the Provincial Council List) of have been divided. the 9th Schedule to the Constitution. However, this which all governmental subjects and functions devolution is limited up to the extent set out in Ap- Legislative powers over police and public order pendix I of the 9th Schedule to the Constitution. have been included in the Provincial Council List, which is the list of areas which fall within the pur- The organisational structure of the police force un- view of the Provincial Councils. Therefore, under der the 13th Amendment establishes two divisions the 13th Amendment, police powers have been de- of the police force, namely the National Division and volved to provincial governments. a Provincial Division for each province. Part I provides a description of the composition of divisions, This constitutional amendment has been the sub- - res of each division of the Police service, uniforms jurisdiction, appointments, determination of cad ject of much debate from the time it was introduced- lution,and despite i.e. devolution a lapse of of twenty land and five police years powers,since it was are andWith language regard to requirements the recruitment, of the transfer, police promotion officers. yetpassed, to be some implemented. of the significant proposals for devo th Amendment provided for the creation of a Nation- The reluctance to implement these constitutional andal Police disciplinary Commission control (NPC), of police and Provincialofficers, the Police 13 provisions is often characterised as being based on fears of secessionist tendencies arising again in the Commission for each province. Part I also describes North and East, by allowing these provincial gov- the main structure and duties of these police com- ernments to have control over a force which could missions in these particular activities. potentially supplement these tendencies. - In order to assess the reasonableness or otherwise - th th of these fears as a causal factor for non-implemen- tutionalThe functioning amendments, of the i.e.NPC the has 17 been and subject 18 Amend to sig- th tation of the said constitutionally mandated devolu- nificantments. The changes 17 Amendmentas a result of sought subsequent to strengthen consti tion, it is necessary to appreciate the actual extent of the NPC, by entrusting appointments of the NPC to th devolution of police powers anticipated under the a Constitutional Council. However, the 17 Amend- th 13th Amendment. In this context, this guide seeks to ment has been substantially changed by the 18 provide a clear and comprehensive account of ad- Amendment, which vested powers over appoint- ministrative and institutional aspects of devolving ments to the NPC in the President. These consti- police powers in Sri Lanka and the extent of devo- tutional amendments have also resulted in some lution envisaged by the 13th Amendment. The study confusion with regard to the functions of the NPC. th th also provides some relevant comparative insights The 13 and 17 Amendments provided for the into the position of two Commonwealth countries functions of the NPC to primarily include the re- (Canada and United Kingdom) which may also have - had grounds to entertain similar fears. It is present- sion, promotion from the National to the Provincial ed in four main parts. cruitmentDivision, and of policepromotion, officers transfer to the and National disciplinary Divi

Part I of this guide examines the constitutional The 17th Amendment had included the powers of framework of the devolution of powers and pro- thecontrol NPC ofin policethe 13 thofficers Amendment in the withinNational its Division.purview. vides a detailed overview of the organisational The 18th Amendment vested these functions in the structure and powers of the police force under the Public Service Commission and expressly stipulat-

Page ii Devolution of Police Powers

ed that the functions of the NPC only include the of standards for recruitment and the promotion of and redress for these offences. However, a lapse - investigationmade in the 18 ofth complaints Amendment against in the policeprovisions officers re- police officers of all divisions and the ensuring of lating to the functions of the NPC has led to certain disciplinaryover policing, control in instances and accountability of the declaration of the of offi an provisions made in the 17th Amendment remaining cers.emergency, The President or when is there also is given a grave significant internal controldistur- in force and thereby providing the NPC with addi- bance within the province. In such situations, the tional powers in respect to appointments, cadres of President is authorised to deploy units of the Na- tional Division in order to restore public order. In addition to this, the constitution effectively ensures officersDespite andsubstantial provision reforms of training to facilitate for police the officers. devo- - lution of police powers in the Constitution, police - powers are entirely under the control of the cen- tionthat ofprovincial cadres and cadres salary are scales, under and the isfinancial responsible con tral government in practice. The two divisions of trol of the Centre, which influences the determina the police force and the two police commissions as Divisions. envisaged by the 13th Amendment have not been for providing finances to maintain the Provincial established. While the members of the NPC have Part 3 of the guide suggests substantive options for been appointed by way of the mechanism provided for under the 18th Amendment, there are still legis- constitutional framework. It provides a compar- lative constraints that prevent it from being able to reformsative analysis to address of provisions the deficiencies available of inthe the current 2000 function in an effective manner. Draft Constitution of Sri Lanka and the legislative instruments and constitutions of certain Common- Part 2 of the guide provides an overview of the wealth countries. This study focuses on six main th means provided for by the 13 Amendment for the options for reform of the current scheme of devolu- Centre to maintain control over the police powers, tion of police powers. These are: (i) the insulation despite the devolution of powers to the provinces. This can be done in two fundamental ways. the modalities of appointing and dismissing the of the police from arbitrary political influence, (ii) First, the Centre is able to prevent the constitution Head of the police force, (iii) ensuring the security of the Provincial Police Divisions pertaining to each of tenure of the Head of the police force, (iv) powers over the appointment, transfer, promotion and province. Under the organisational structure of the disciplinary control, (v) mechanisms to ensure ac- police force envisaged by the 13th Amendment, the countability, and (vi) provisions relating to emergencies and public security. from the National Division to the Provincial Divi- sion,Centre to has refuse the toability make to appointments refuse to second to the officers Pro- The suggestions for possible reforms recognise the vincial Division and to refuse to approve cadre of need to achieve a balance of competing interests which arise in respect to police powers: the need The legislative provisions do not specify authori- to exercise controls, checks and balances on police, tiesofficers responsible and other for ranks implementing of each Provincial these duties; Division. and while also taking into account the power that aris-

balances. The Commonwealth countries studied in members to enforce these duties. In the absence of esthis by guide being are able those to subject that have the policetried toto ensurechecks andthis sucheven ifprovisions specified, ado situation not impose can an arise obligation where on these the balance, and thus provide credible models which Provincial Divisions are not constituted. In addi- could be followed by Sri Lanka. tion, the failure to constitute Provincial Divisions country, as the constitutional amendment does en- Lankan context, the central government may per- doesvisage not such significantly a situation affect and law provides enforcement that in in such the Part 4 of the guide identifies that within the Sri an instance, the National Division will perform all from establishing provincial police forces, especial- the functions vested in the Provincial Division for a lyceive in the specific North concerns and East. whichHowever, would rather discourage than com it- pletely refusing to grant the powers provided in the Constitution, there is a need to identify wheth- specificSecond, timeeven period.if the Provincial Divisions were set up er there are legislative provisions already in exis- as envisaged by the 13th Amendment, the Centre address these fears. This study looked into other of these divisions. These powers include the setting tence within the Sri Lankan jurisdiction that could- still exercises significant control in the functioning jurisdictions, namely Canada and the United King Page iii Devolution of Police Powers

dom (Refer: Annex 1), both of which have also ex- parative analysis of some of the mechanisms avail- perienced separatist movements, and yet have suc- able in the Sri Lankan model and those adopted in cessfully devolved police powers. In this respect, Canada and the United Kingdom, which could serve this section assesses the reasonability of potential to address potential practical concerns with regard practical concerns as a basis for not giving effect to to devolving police powers. devolution of police powers. It also provides a com-

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PART 1: THE FRAMEWORK

1.1. Constitutional Framework The 13th Amendment was introduced in 1987 to my of the police service and protect it from political devolve powers of the government to Provincial interference rather than enabling the provinces to Councils (PCs) as envisaged under the Indo-Sri legislate on the responsibilities and conduct of the Lanka Accord. The system of devolution of powers police force. The 13th Amendment allows PCs to provided by the 13th Amendment operates within legislate on matters set out in List I Item 5, which the framework of Sri Lanka’s unitary constitution includes police and public order. At the same time and has been functioning for almost 25 years. Much it limits the devolved power to the extent set out in has been written and debated on its success and Appendix I, with the result that there is very limited failure to address the purpose of its introduction, devolved legislative power with respect to law and order. This is clearly unsatisfactory. namely,The 13th as Amendment a solution to includes the ethnic a schemeconflict. of devolution of powers with respect to executive and provided in List I. The items on which the PCs do legislative branches of the government.2 Each PC Thenot havesubjects any and power functions to legislate devolved upon to theand PCs conse are- functions through a Governor (appointed by the quently falling within the exclusive purview of the President for a 5 year term) in whom executive central government are provided in List II. List III power is vested, and a Board of Ministers compris- contains those functions relating to which both the ing a Chief Minister and four Ministers to advise the Centre and the provinces can legislate, with the Governor.3 Legislative power is devolved to each PC Centre prevailing over the provinces in a case of to make statutes applicable to the province on mat- 6 ters provided in the Provincial Council List.4 1.2.conflict. The Nature of Powers Relating The competency of a PC is limited to the powers th to Law and Order Amendment. Accordingly, the Amendment has di- The police force is the primary law enforcement and functions specifically devolved by the 13 agency in Sri Lanka, and the duties of the police three lists: the Provincial Council List (List I), the force are listed in the Police Ordinance. Section 56 videdReserved all governmental List (List II) and subjects the Concurrent and functions List (List into III). The fundamental feature of the devolution of is considered to be always on duty and has the re- powers scheme under the 13th Amendment is that sponsibilityof the Ordinance to: specifies that every police officer it mainly involves the division of exercise of legislative and executive powers of the government i. Use his best endeavors and ability to pre- between the Centre and the regional units. The vent all crimes, offences and public nui- powers relating to police as one of the main law sances; enforcement agencies are unique in nature because ii. Preserve the peace; they almost entirely involve the executive and very rarely the legislature (apart from the legislative au- iii. Apprehend disorderly and suspicious char- thority derived for its functioning i.e. the Police Or- acters; dinance No.16, 1856). For example, the police are iv. enhancing public safety, maintaining law and order v. Collect and communicate intelligence af- andresponsible peacekeeping for enforcing in Sri Lanka. criminal The and duties traffic and law, re- Detect and bring offenders to justice; fecting the public peace; and sponsibilities of the police service are mainly stipulated in Sections 56-80 of the Police Ordinance. vi. Promptly obey and execute all orders and Apart from the aforementioned broad duties and warrants lawfully issued and directed to responsibilities, the police department functions him by any competent authority. under a regulatory scheme commonly known as The duties of the police force are utilised in vari- Departmental Orders of Police. ous aspects in order to ensure that law and order is It is important to note that the main focus of the effectively maintained. In this respect, the powers 13th Amendment has been the creation of an institutional framework that would secure the autono- divided into detecting, preventing and prosecuting of the police force in fulfilling their duties can be Page 1 Devolution of Police Powers

criminal activities and functions with respect to use to society.15 civil aspects of community life. - Criminal activities: The police force is responsible in the police organisation in order to maintain law for creating a peaceful society by taking adequate Civiland order duties: within Specific the mechanisms society. These are include: in place with measures to prevent crimes and actively participat- - include: - ing in the criminal justice system. These measures • Motor traffic-related functions – every po Reporting functions – this includes report- andlice stationregulations, maintains investigate a traffic into branch accidents, in or ing on matters relating to the commission of der to implement and enforce traffic laws • any offence, occurrence of death under sus- duties for VIPs and assist the public in var- picious circumstances or the unexplained iouscontrol social traffic events on andhighways, functions provide where pilot mo- 7 also required to report to the Magistrate findingCourt, instancesof a dead wherebody. Policearrests officers are made are tor traffic is involved. without warrants8, where investigation cannot be completed within 24 hours and • Specific functions of the police in relation more time is needed, and where an inves- to traffic are provided for in the Motor securityTraffic Act16 and 1951. driving These licenses include17 ,the to ensurepower evidence is available to charge the accused. 9 tovehicles inspect are the driven certificate within of the insurance speed limits or of tigation has been completed and sufficient and abide by the rules of the road18 and to Investigative functions – the power to take necessary actions to investigate offences by may submit drivers for a breath test or ex- • taking down information on commission of issue traffic directions. The traffic police a cognisable offence, examination of wit- upon reasonable suspicion of consumption 10 nesses and conducting searches. ofamination alcohol orby drugs. a Government19 Medical Officer Arrest – the police force has the power to effect arrest of persons with or without a clear obstructions and nuisances on roads20 • warrant for cognisable and non-cognis- • andPolice seize officers any straying are also animals. given authority21 to able offences. In addition, the police force is allowed to conduct searches of persons Emergency services – the police force arrested12 and conduct searches of places. maintains an emergency service in order to • address emergency calls by the public, as- Inspection and search of places – the po- - lice have the power to conduct searches of • places. This includes the power to conduct sistprovide in traffic support jams in anddisaster make situations. necessary22 in searches of places.13 This also includes the vestigations of motor traffic accidents, and power to enter and inspect places such as drinking shops, gaming houses and other in respect to tourists to facilitate in order to similar resorts. The police can also check • facilitateTourist Police effective – Specific services powers for tourist are granted com- premises suspected of receiving stolen plaints and minimise irregularities in rela- property or belief that a crime has been or tion to tourism. In this respect, the tourist is about to be committed and take neces- police division is empowered to investigate sary measures for the effective prevention and take action with respect to complaints and detection of crime.14 by tourists and conduct surveillance in tourist areas to prevent illegal activities Narcotics – the Police Narcotics Bureau against tourists.23 (PNB) is responsible for the enforcement • of controls in respect to drug use. In this Maintaining peace in public places – in or- respect, the PNB has the power to arrest der to ensure peace within public places, street level drug dwellers, conduct inves- • the police force is allowed to regulate the use of instruments producing or reproduc- liaise with national and international agen- ing sound in or near public places24 and ciestigations involved on highin drug profile law enforcementdrug syndicates, and take action to remove and abate public nui- conduct awareness programmes on drug sances.25

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Police Service has also been provided in the 13th Amendment. Accordingly, the cadres of the police Inpersonal addition, security large tonumbers the President, of police Prime officers Minister, are detailedMinisters, specifically Members offor Parliament the purpose and of VVIPs/VIPs. providing - officers of all ranks of the National Division are to 1.3. The Scheme of Devolution of thebe fixed provincial by the Governmentadministration of Sriwith Lanka. the approvalThe cad Police Powers Envisaged by the ofres the of NPCeach Provincialhaving regard Division to uniformly are to be applicable fixed by th principles i.e. the area of the province, population 13 Amendment of the province, number of police stations involved Under Item 1 of List 1 (i.e. the Provincial Council and other such agreed criteria.32 However, it is the List) of the 9th Schedule to the Constitution, public Government of Sri Lanka that is responsible for de- order and the exercise of police powers have been devolved to the provinces. The exercise of these - powers is: terminingvincial Divisions, the salary after scales consultation and perquisites with the of officeChief enjoyedMinisters by of various the provinces. ranks in33 both Similarly, National the and Govern Pro- i. to the extent set out in Appendix 1 ment is responsible for the training of all recruits ii. within the province and of members of all Divisions of the police force. Further, the NPC34 may provide for alternative iii. not inclusive of national defence, nation- training for members of any Provincial Division if it al security, use of any armed forces or any deems it necessary.35 other forces under the control of the government in aid of the civil power iv. not inclusive of the city of Colombo, Sri Constitution requires members of both National In terms of the uniforms of the police officers, the Jayewardenepura Kotte and their environs and Provincial Divisions to wear the same uniforms - and insignia of rank provided that members of each ident in the gazette) - (these limits are to be specified by the Pres - 1.3.1. Composition Divisioncation. Emphasis shall bear is agiven distinctive to having shoulder one uniformed flash in dicatingpolice force the comprisingDivision, for of themembers purpose of theof identifiProvin- The 13th Amendment sets up two divisions of the police force, namely the National Division (includ- 36 ing Special Units) and a Provincial Division for each Division within a province. 26 cial Division and officers seconded by the National province. The head of the entire Sri Lanka Police In order to facilitate a meaningful exercise of devo- Force is the Inspector General of Police (I.G.P.). The National Division consists of the I.G.P., Deputy In- Division and the Provincial Divisions are required spectors General of Police (D.I.G), Senior Superin- tolution achieve of powers, prescribed all gazette standards officers of of thecompetency National tendents of Police (S.S.P), Assistant Superinten- dents of Police (A.S.P), and other ranks recruited at above A.S.P. are required to attain a prescribed 27 the national level. The Provincial Division consists instandard both Sinhala of English. and 37Tamil; and all officers ranked of a D.I.G., S.S.P., S.P.P. and A.S.P., all seconded by the National Division and Provincial Assistant Super- 1.3.2. Jurisdiction intendents of Police, Chief Inspectors, Inspectors, Sub-Inspectors (S.I.s), Sergeants and Constables re- The Provincial Division is responsible for the pres- cruited in the province. Furthermore, the members ervation of public order within the province and of the Provincial Division are eligible for promotion the prevention, detection and investigation of all of- to the National Division.28 - The I.G.P. appoints the D.I.G. for each province Gfenceseneral (except in terms the of offences the Code specified of Criminal in theProcedure Sched with the concurrence of the Chief Minister of the Act,ule). theIt isinstitution subject toof theprosecutions powers of in the the Attorneyrelevant province. However, where there is no agreement Courts in respect to such offences.38 between the I.G.P. and the Chief Minister, the matter is referred to the NPC (NPC),29 which, after due The National Division of the Sri Lanka Police Force consultations with the Chief Minister, makes the is responsible for the prevention, detection and in- appointment.30 l Determination of the cadres of each division of the investigation terms of theof all Code offences of Criminal specified Procedure in the Schedule. Act, the It is subject to the powers of the Attorney Genera

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institution of prosecutions in the relevant Courts in Any offence which is ordinarily investigated by a respect to such offences. Provincial Division may be investigated by the C.I.D. or any other unit of the National Division –

(a) where the Chief Minister requests; and The offencesOffences specified against in the the State; Schedule include: (b) where the I.G.P. is of the opinion that an inves- • Offences relating to the Navy, Army and Air tigation of such an offence by the Criminal Investi- Force; gation Department (C.I.D.) or any other unit of the • Offences relating to the elections; National Division is necessary, in the public interest and thereafter directs, after consultation with • Offences relating to coins, currency and the Chief Minister and the approval of the Attor- Government stamps; ney-General, that such an offence be investigated • by the C.I.D. or any other unit of the National Divi- Any offence committed against the Presi- sion.41 dent; • Any offence committed against a Public Division and Provincial Divisions in any province areAll Policeto function Officers under serving the directionin units of and the control National of • Prime Minister, a Minister, a Member of the the D.I.G of such a Province. This D.I.G is account- JudicialOfficer, aService Judicial Commission, Officer, the aSpeaker, Member the of able to, and under the control of, the Chief Minister the Public Service Commission, a Deputy for the maintenance of public order and exercise of Minister, a Member of Parliament, the Sec- police powers in the province.42 However, the exer- retary General of the Parliament, a Member - of the President’s Staff or a Member of the Staff of the Secretary General of Parliament; powerscise of these and responsibilitiespowers is subject of tothe the Chief two Ministerstipulat Any offence relating to property belonging ined respectconditions: of public first, whereorder, providedthe President by regulation assumes to the State or a State Corporation, Compa- upon the declaration of an emergency in the prov- • ny or Establishment, the whole or part of ince; and second, without declaration of an emer- the capital whereof has been provided by gency in the province, but in consultation with the the State; Public Security Ordinance, where the President is Chiefof the Minister opinion andthat subjectsecurity to or the public provisions order of the or the maintenance of Essential Services; province is threatened, and amounts to a situation • Any Offence prejudicial to National Security which requires deploying of any unit of the Nation- Any Offence under any law relating to any al Division.43 matter in the Reserve List other than such • offences as the President may exclude by 1.3.3. National and Provincial Police order published in the Gazette, exclude; Commissions Any Offence in respect of which Courts in In order to facilitate a separate and transparent mechanism for the recruitment, transfer, promo- • and more than one province have jurisdiction; International Crimes. the National Division and Provincial Divisions, the 13tionth Amendmentand disciplinary envisaged control the of establishment police officers of of a • NPC, and a Provincial Police Commissions for each The Chief Minister may seek the assistance of the province. National Division to preserve public order within a province. In such a situation, the I.G.P. shall de- The composition of the NPC under the 13th Amend- ploy such personnel of the National Division as are ment was as follows:44 necessary and place them under the control of the D.I.G. of the province.39 The I.G.P. may deploy units i. The I.G.P.; of the National Division in a province whenever a ii. A person nominated by the Public Service State of Emergency has been declared in the prov- Commission in consultation with the Pres- ince.40 ident; and

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iii. A nominee of the Chief Justice. the D.I.G.52 Recruitment to the Provincial Division The main responsibilities of the NPC include the officersis to be madeseconded at the to ranks the Provincial of P.C, S.I, Divisionand P.A.S.P except and recruitment to the National Division; promotions should have regard to the standards of recruitment and other criteria prescribed in this regard.53 At the National Division; 45 promotions, transfers, and dis- ofciplinary Police Officerscontrol ofin membersthe Provincial of the Divisions National to Divi the- set out preferences as to the Division in which he/ timeshe wishes of the toappointment, serve and should the Police be posted Officers accord may- the National Division seconded to the Provincial ing to this choice if possible. However, it is notewor- Divisionsion other above than the the rank I.G.P; of promotion S.S.P; and oftransfer officers and of thy that if the Constitution itself provides that the disciplinary control over D.I.G.s seconded to the - Provincial Division. 46 The recruitment to the Na- tional Division is to be made at the ranks of P.C, S.I low.recruits Furthermore, have a choice it is toworth join thementioning National that or Pro the and A.S.P.47 In addition, the NPC can hear and de- vincial Divisions, the tendency to join the latter is - crucial role in maintaining peace and order at the cial Divisions against whom disciplinary action has provincialOfficers-in-Charge level. Since (O.I.Cs) the O.I.Cs of police are appointed stations play from a beentermine taken appeals by Provincial from officers Police seconded Commissions to Provin and the ranks of Chief Inspectors and Inspectors who set standards for recruitment and promotion of Po- are to be recruited and transferred by the PPCs, in a case where PPCs are established provinces may for all Provincial Divisions. 48 It further provides exercise a certain amount of power over the func- lice officers of all Divisions, which are to be uniform tioning of police stations. any Provincial Division to the National Division, the that before promoting any Police Officer serving in Furthermore, the NPC or a PPC is entitled to del- egate certain powers to other recommended per- - sons or authorities.54 NPCsion. shouldFurther, call he for should a confidential take into considerationreport on such the an officer from the relevant Provincial Police Commis 49 1.4. Changes Effected to the NPC of matters specified in such a report on the issue of the 13th Amendment by the 17th Additionally,promoting the the officer. NPC is responsible for the deter- and 18th Amendments to the arms, ammunition and other equipment for both Constitution minationthe National of theDivision nature, and type Provincial and quantity Divisions. of fire- In terms of the latter however, the NPC must consult 1.4.1. The Seventeenth Amendment to the th with the Provincial Police Commission and apply Constitution (17 Amendment) uniform standards and principles for all the Pro- The 17th Amendment to the Constitution in 2001 vincial Divisions.50 aimed at creating a depoliticised and independent public service. Its introduction provided for the According to the 13th Amendment the composition establishment of a stronger NPC which would col- of the Provincial Police Commission (PPC) is as fol- laborate with the one envisaged by the 13th Amend- lows:51 ment. The scheme of the Amendment introduced a i. The D.I.G. of the province; Constitutional Council, which in turn selects those who would be appointed, inter alia, to the NPC. Al- ii. A person nominated by the Public Service though most of the provisions of this Amendment Commission in consultation with the Pres- have been repealed, the constitution and functions ident; and of the NPC are worth mentioning. The Amendment iii. A nominee of the Chief Minister of each introduced a separate chapter to the Constitution province. titled ‘NPC’ and provided for its composition, powers and functions. The NPC comprised of seven members appointed by the President on the rec- Division is made by these PPCs, which are also re- ommendation of the Constitutional Council.55 Mem- Thesponsible recruitment for transfers, of police promotions officers to and the disciplinary Provincial bers were to be appointed for a term of 3 years and were eligible for reappointment for one more term. - Only the President, on the recommendations of the ondedcontrol to over the officers Provincial in the Division Provincial up to Division; the rank for of Constitutional Council, could effect their removal. S.S.P;promotion and for of transferofficers andof the disciplinary National Division control oversec

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The NPC was vested with the powers of appoint- date prior to the commencement of the amending ment, transfer, promotion, disciplinary control Act, be vested in the PSC from and after the date of the commencement of this Act. The 18th Amend- these powers were to be exercised in consultation ment also provides that any appeal made by a po- andwith dismissal the I.G.P.56 of Most all police importantly, officers the except NPC thewas I.G.P.; con- - ferred with the power to exercise all functions and or to the commencement of this Act be transferred duties vested in it under Appendix I of List I in the liceto the officer PSC, pendingand be heardbefore and the completedNPC on the from date andpri 9th after the date of the commencement of the amend- exercise of the NPC’s powers that would detract ing Act.64 from Schedule. the powers The and appendix functions specifically assigned limitedto the PPCs the as and when such Commissions are established, Further, the powers of the new NPC have been ex- in order to avoid any confusion with the scheme pressly stipulated in Article 155FF of the Constitu- of devolution of powers in the Constitution.57 The tion and only include the investigation of complaints NPC was empowered to establish procedures to en- th tertain and deal with public complaints, and com- the provision of redress for these offences. The 17 against police officers by any aggrieved person and plaints of aggrieved persons made against a police Amendment included the powers of the NPC in the th 58 The NPC was also required to 13 Amendment within its purview. By omitting to determine all matters regarding police administra- mention these powers and expressly repealing Ar- 65 th tionofficer including or service. the formulation of schemes, improv- ticle 155G , it is noteworthy that the 18 Amend- ment has created a rather anomalous situation. th determining the nature and types of arms, ammu- Due to a lapse made in the 18 Amendment and ingnition independence and other equipment and efficiency necessary of the servicefor the anduse despite limiting the NPC’s powers in the investiga- of National and Provincial Divisions.59 provisions made in the 17th Amendment to amend tionAppendix of public I still complaints remain in against force. Therefore, Police officers, the cur thein November 2005; and since the Constitutional rent NPC has additional powers to appoint a D.I.G. CouncilHowever, was the defunct,term of officea new of commission the first NPC was ended not for each province in case of disagreement between constitutionally appointed under the 17th Amend- the I.G.P and the Chief Minister after due consulta- ment.60 tions with the Chief Minister.66 Further, he has the

1.4.2. The Eighteenth Amendment to the - Constitution (18th Amendment) ministrationspowers to approve67 and cadre to provide of officers for alternative and other trainranks- fixed of Provincial Divisions by the provincial ad th ing for members of any Provincial Division where The 18 Amendment to the Constitution was intro- necessary.68 In addition, there is a contradiction duced in 2010 and brought in substantive chang- th with the provisions of the Constitution. This is be- es to the 17 Amendment. It has thus resulted in a cause whilst the 18th Amendment vests the powers rather confusing situation with regard to the status of appointment, promotion, transfer, disciplinary of the NPC. The NPC now comprises of 7 members appointed by the President, one of which acts as 61 Item 3 of Appendix 1 still remains in force, vesting the Chairman of the Commission. The powers of controlthose powers and transfer with the of police NPC. Therefore,officers with given the PSC,that the NPC under the 13th Amendment and the 17th Amendment primarily included the recruitment of of the Constitution69, (the 13th Amendment being a - partthe powers of the Constitution) of the PSC are it subjectmay be possibleto the provisions to argue police officers to the National Division, the promo the Provincial Division and the promotion, transfer, vested in the NPC. tion of police officers from the National Division to- that all actions concerning police officers remain tional Division. However, the 18th Amendment vests An additional drawback with regard to power shar- theand appointment,disciplinary control promotion, of police transfer, officers disciplinary in the Na ing in Sri Lanka is that although both of the above 62 in the mentioned constitutional amendments contained express amendments to the 13th Amendment, the controlprovisions and of dismissal the Constitution. of all public63 It officers provides that fact that they were passed without the Bills be- allPublic matters Service pertaining Commission to the (PSC),appointment, subject promo to the- ing referred to any of the PCs as required by Arti- tion, transfer, disciplinary control and dismissal of cle 154G (2) of the Constitution70 weakened devolution. under Chapter XVIIIA of the Constitution on the has significantly Police Officers pending before the NPC established

Page 6 Devolution of Police Powers

1.5. The Current Status of Devolution of Police Powers Although the Constitution expressly provides for a At present however, by virtue of the powers vest- scheme of devolution of police powers, in practice ed in the 18th Amendment to the Constitution the police powers have not been devolved to the prov- President has, with the concurrence of the Parlia- inces. Police powers are exercised entirely within mentary Council, appointed the Chairman and the the central government’s purview under the Min- Members of the NPC. In terms of Article 155FF istry of Defence and Urban Development. As such which was introduced by the 18th Amendment, the the police force is not divided into a National Divi- functions of the Commission are limited to enter- sion and Provincial Divisions and remains a single taining and investigating complaints from mem- entity with the I.G.P. as its head who is supported bers of the public or any aggrieved person against

Ministers in effect do not exercise the powers vis-à- redress in accordance with the provision of any law visby othermaintenance ranked ofpolice public officers. order inFurther, the provinces the Chief as enacteda police byofficer Parliament. or the policeThe Commission force, and isproviding empow- envisaged in the 13th Amendment. The unconstitu- ered by Article 155FFF to make rules to establish tionality of the current set-up, wherein the Nation- procedures for entertaining and investigating com- al Division exercises all police power in a province, plaints, and has taken action to gazette new ‘‘Rules is further indefensible because it goes beyond the of Procedure’’ (Investigation of Public Complaints interim arrangement for implementation provided 71 in Item 13 of Appendix I. Item 13 enables the Na- However, in the absence of any law enacted by Par- tional Division to perform all the functions of the against Police Officers or the Police Force) – 2012. liament to provide redress to aggrieved persons as Provincial Division for a period of one year or until stated in Article 155FF, it is doubtful whether the a Provincial Division is established in a province, NPC can function effectively even within its limited whichever is earlier. mandate. It is further noted that given the nature With regard to the establishment of National and of public complaints, which generally involve police Provincial Commissions as provided in the 13th Amendment, it is important to note that despite the it is pertinent to give the powers of dealing with legislative passage of the Police Commission Act No. officers of ranks belonging to Provincial Divisions, 1 of 1990 which provides for the establishment of rather than limiting it to the NPC. At the functional these institutions, the Act has not yet been brought public complaints against police officers to PPCs into operation. This is because the President did not each of the provinces, in contrast to the PPCs under appoint a date of operation by the Order published level,the 13 theth Amendment. NPC has instituted ‘Provincial Offices’ in in the Gazette. However, with the changes brought in by the subsequent Constitutional amendments, Therefore, successive governments have cited vari- th ous reasons for the non-implementation of the pro- established and functioned without its provincial visions relating to devolution of police powers, in specificallycounterparts. the 17 Amendment, the first NPC was violation of the Constitution.

Page 7 Devolution of Police Powers

PART 2: SCOPE FOR MAXIMISING THE FRAMEWORK

2.1. How the Centre Maintains 2.2.2. Refusing to approve cadre Control In this respect, Item 7 of Appendix 1 states that ‘the The entire scheme of the 13th Amendment’s provisions enables the Centre’s maintenance of control - cadre of Officers and other ranks of each Provincial over police powers. This control is exercised in two tration with the approval of the President, having regardDivision to shall (a) the be areafixed of by the the Province; Provincial (b) Adminis popula- fundamental ways. First, the Centre is in fact em- tion of the Province; and (c) other such criteria, as powered to prevent the constitution of Provincial may be agreed to or prescribed.’ Divisions for each province. The prevailing status quo – where there is no devolution of police pow- However, as noted previously there is no positive ers whatsoever – is on account of acts or omissions obligation on any person to ensure that second- made possible through these constitutional provi- ments are made with respect to the decisions made sions. Second, even in a situation where a Provin- in terms of Item 7. Indeed, Item 7 itself envisages cial Division were to be set up within one or more provinces, the 13th Amendment provides for the the approvalPresident of were the President to refuse forto fixingapprove the any cadre plan of to police powers. forwardedofficers and to other him byranks the forProvincial each Province. Administration Thus, if Centre to maintain significant control with respect [ostensibly, this would mean the Chief Minister and 2.2. Centre’s Power to Prevent Board of Ministers through the Governor in terms Creation and Functioning of of Article 154F[1]] no decision could be made in Provincial Police Division Provincial Division would again be rendered a non-starter.respect of fixing The immunitythe appropriate exercised cadre. by theThus, Presi the- 2.2.1. Refusing to second dent vis-à-vis Article 35 of the Constitution would Item 2:2 of Appendix 1 states that the D.I.G., S.S.P.P., S.P.P. and A.S.P.P. of a provincial police division will respect of the President refusing to approve even a be ‘seconded’ from the National Division. Unlike alsoreasonable preclude proposal. any legal proceedings being filed in directly to the Provincial Division. However, Ap- 2.2.3. Refusing to appoint a Provincial officerspendix 1of does inferior not rank,cast anthey obligation will not beon recruitedany par- D.I.G.

to the Province with the concurrence of the Chief ticular officer of the Police or a civilian official to is unclear as to who in fact is authorised to make ItemMinister. 6 specifies While thisthat may the I.G.P.appear shall to appointsuggest a D.I.G.mea- in fact second such officers as necessary. Thus, it sure of cooperation between the Centre and prov- is cast with a positive obligation to do so, it is most ince, where the I.G.P. and Chief Minister are unable such a secondment. Critically, since no one officer unlikely that a court will intervene to ensure that to reach agreement, it is the NPC who will make such secondment takes place. This is because the such appointments ‘after due consultation’ with writ of mandamus – which is the general public law the Chief Minister. Hence, it is open to the I.G.P. remedy applicable to compel the performance of a acting under the direction of the President [who statutory duty – may only be issued where there is presently acts as Minister of Defence] to refuse to a positive statutory or constitutional duty imposed cooperate with the Chief Minister, and pursuant to preliminary disagreements, refer the matter to the identify the person responsible for secondment, it NPC. Critically, the NPC is under no obligation to on identified persons. Because Appendix 1 does not make a decision ‘with the concurrence’ of the Chief a failure to second will likely fail. Thus, if the Cen- Minister. In legal terms, ‘concurrence’ means agree- follows that a writ of mandamus filed in respect of ment. ‘Due consultation’ however does not imply Provincial Division, the Provincial Division will be an obligation to obtain the consent of the party. It trerendered were to a non-starter.decide not to second any officers to the

merely signifies an obligation to obtain the views

Page 8 Devolution of Police Powers

of that party. However, since the NPC is required to to the continuation of the prevailing status quo. Of make the appointment, a writ of mandamus may be equal concern is the fact that there is no recourse sought against the I.G.P, or the in the case of dis- in respect to this unwillingness to give effect to the agreement, the NPC, to compel the appointment of devolutionary impulses of the 13th Amendment. the Provincial D.I.G. 2.3. Centre’s Powers to Maintain Before the 17th Amendment, the President could refuse to make such appointments or delay indef- Control Even where Provincial initely in doing so, and since the President was im- Division is Established mune from suit in terms of Article 35 of the Con- stitution, no legal recourse was possible to compel 2.3.1. Recruitment to the Provincial him to make an appointment. Therefore, the omis- Divisions th sion made by the 18 Amendment referred to pre- Item 4 and 9:1 provide that recruitment to Provin- th viously has in effect broken the deadlock of the 13 cial Divisions is to be made by the PPCs. However, it Amendment’s position where the President was is noteworthy that according to Item 3:4, the power the ultimate and immune authority. to decide on all schemes of recruitment is vested with the NPC. Item 3:4 reads as follows: ‘It shall set 2.2.4. Refusing to make appointments to standards for recruitment and promotion of Police the Provincial Police Commission Item 4 provides that appointments to the PPC – uniform for all Provincial Divisions’. Officers of all Divisions and such standards shall be Provincial Division – will comprise the D.I.G. of the The schemes of recruitment generally specify the whichprovince, makes a person appointments nominated to byjunior the Publicofficers Service in the Commission with the consultation of the President, age limits and other relevant particulars. Therefore, salary scale of a post, the qualifications required, and a nominee of the Chief Minister. As we noted although PPCs are responsible for recruitment, the previously, the Centre could potentially prevent the power relating to it can be effectively exercised only appointment of a Provincial D.I.G., which would in if the schemes of recruitment can also be decided turn prevent the constitution of a PPC. Moreover, by the PPC. Schemes of recruitment decided by the the second nominee too requires the consent of the NPC effectively undermine the spirit of devolution, President. Thus, appointments to two of the three even if the Provincial Divisions are established. members of the PPC potentially involve the partici- pation of the President. For the reasons stated pre- 2.3.2. Disciplinary powers and viously, the appointment of the nominee of the PSC accountability cannot be compelled, and thus, the Centre has the Item 4:1 provides that the Provincial Police Com- power to prevent the constitution of a PPC as well. mission shall be responsible for transfers, promo- 2.2.5. National Division may continue to exercise Provincial Division’s powers tionsNational and Division disciplinary seconded control to overthe Provincial officers in Divi the- indefinitely Provincialsion up to the Division; rank of promotionS.S.P.; and for of transfer Officers and of disthe- Item 13 of Appendix 1 envisages the eventuality - of a Provincial Division not being set up. It provincial Division, except the D.I.G. The D.I.G. of the ciplinary control over officers seconded to the Pro vides that ‘the National Division shall perform all province himself is to be accountable to and under the functions vested in a Provincial Division, in any the control of the Chief Minister, in terms of Item province, for a period of one year or until a Provin- 11.1. This provision is incongruous, because Item cial Division is established in such province, which- power over the D.I.G. Thus despite the Chief Min- ever is earlier.’ ister’s3:2 specifies notional that control the NPC over possesses the D.I.G., disciplinarythe D.I.G. is Thus, in the event a Provincial Division is not estab- ultimately accountable only to the NPC - a central lished, the National Division continues to exercise body. Moreover, because the power of appointment all powers in respect of policing – reserved or de- in respect to the D.I.G. ultimately rests with the volved. As we have noted, the Centre may resist the President [in the event of an absence of consensus establishment of a Provincial Division in numerous between the I.G.P. and the Chief Minister], the Chief ways, and thus, there is in effect no legal prohibition Minister’s powers are severely restricted.

Page 9 Devolution of Police Powers

- 2.3.4. Financial control by the Centre th NationalEven with Division respect seconded to inferior to officers, the Provincial the NPC Divi re- Amendment, the exercise of police powers by the siontains abovepowers the of rank promotion of S.S.P. over Thus, the while officers those of theof- Similarprovince to (even all other in a case devolved where subjects the Provincial in the Divi 13 - sions are established) will be controlled to a great and disciplinary control by the PPC, any promotion - prospectsficers would rest be with subject the NPC. to the In powersturn, the of President transfer now controls the NPC. The power of appointment extentdevolved by Policethe Centre’s functions control of the of finances. provinces The mainly Cen in respect to the NPC lies exclusively in the hands tre maintains control of the financial aspects of the of the President, in terms of Article 41A[1] of the power to determine the cadres and salary scales, Constitution which was introduced by the 18th inand two second, ways; through first, through dependency the influence of the PCs over on the Amendment. Prior to the 17th Amendment – which - vested such powers in a multi-partisan Constitu- cial Divisions. tional Council - the NPC was to include the I.G.P., a Centre for the financial maintenance of the Provin nominee of the Chief Justice and a nominee of the Public Service Commission in consultation with the President. With regard to the first issue, although the cadre of officersthe approval and other of the ranks NPC,72 of the each salary Provincial scales andDivision per- 2.3.3. Emergency/grave disturbance is to be fixed by the Provincial Administration with Item 11:2 provides that ‘upon the declaration of Divisions are to be determined by the Centre after 73 an emergency in the province, the President may consultationsquisites of office with of both the theChief National Ministers. and Provincial There is assume such powers and responsibilities of the Chief Minister and the Provincial Administration both instances. First, the NPC constitutes members 74 in respect of public order within the province…’ In aappointed significant by amount the President of influence and byits theapproval Centre will in such a case, Item 12:3 authorises the I.G.P. to deploy units of the National Division as he deems neces- the Centre is only required to consult the Chief sary in any province for the restoration and main- be subjected to the will of the Centre. Second, while- tenance of public order. ry scales and perquisites still remains the central Ministers,government. the final determining authority of sala Further, even where an emergency is not formal- ly declared, where the President is of the opinion With regard to the second issue of the dependency that the security of or public order in a province is by the provinces on funds provided by the Centre, it threatened by grave internal disturbance, he may, in consultation with the Chief Minister deploy any aspects are dealt with in the scheme of devolution is necessaryth to consider the way in which financial unit of the National Division in the province for the of the 13 Amendment. Each province is to have a purpose of restoring public order. Here, the deter- provincial fund for the purposes of the conduct of mination of whether a ‘grave internal disturbance’ the PCs. This includes the proceeds of all taxes, the has arisen is solely the President’s prerogative. proceeds of all grants made by the Government, the proceeds of all loans advanced by the Government These provisions provide wide discretionary pow- and all other receipts of the PC.75 However, the in- ers to the President to control policing within a come of the PC is mainly derived by two methods: province. Wherever a province acts in a manner that the President disapproves of, it is open to him under Items 36:1 to 36:20 of List I, and allocation to effectively appropriate police powers within the ofprovincial funds by revenue the National derived Budget. from sources In practice identified the province to himself. The second option of declaring revenue collected from the wide range of taxes and a ‘grave internal disturbance’ does not even require fees provide a small percentage of the expenditure subsequent Parliamentary approval, in distinction required by the PCs, and the expenditure required to the process mandated by the Public Security Or- especially for salaries and allowances of provincial dinance for the extension of a declaration of emer- cadre is provided in full by grants made by the Cen- gency. tre.

Page 10 Devolution of Police Powers

Therefore even if the Police Provincial Divisions ommendation of the Finance Commission for the are established, since the Centre provides the ma- maintenance of Provincial Police Divisions, since such funds have to be released by the Treasury, it provinces by way of the Block Grant, the cadre is jorityin effect of financingunder the for Centre’s the recurrent control, expenditure similar to the of is in practice subjected to the discretion of central Provincial Public Service. exercise of devolved powers by the PCs since in the governmentalcase of inadequate officials. release This of funds,in effect there hinders is neither the Furthermore, it is important to note that even if an a method of obtaining redress nor any means of allocation is made by the Annual Budget on the rec- compulsion available to provinces.

Page 11 Devolution of Police Powers

PART 3: REFORM

3.1. Expanding Regional Control of police powers envisaged under the 13th Amend- over Police Powers Beyond the ment to the Constitution. The study will focus on: Maximum via Constitutional i. The insulation of the police from arbitrary Interventions ii. The modalities of appointing and dismiss- As police power has not been devolved to any ex- political influence; tent in Sri Lanka, there is no practice under the cur- ing the head of the police force; rent scheme upon which to base an evaluation of iii. Security of tenure; the adequacy or otherwise of current constitutional provisions. Accordingly, the comparative analysis iv. Powers of appointment, transfer, promo- to follow is based on inherent structural inadequa- tion and disciplinary control; - v. Accountability mechanisms; and vi. Provisions relating to emergencies and thecies 2000and systemic Draft Constitution deficiencies of that Sri have Lanka been are iden the public security. primarytified in thepoint preceding of reference. chapters. Additionally, The provisions legislative of instruments and constitutions of Commonwealth 3.2.1. The insulation of the Police from countries are analysed. arbitrary political influence Before delving into substantive options for reform Any state devolving police power has to strike a balance between competing interests; insulating that is required in the status quo is the reforma- the police from arbitrary and illegitimate political tionit is worthof the government’snoting that the lack most of political significant will reform to im- control whilst simultaneously retaining adequate plement what is constitutionally mandated under executive and administrative oversight over this the 13th Amendment to the Constitution. Any substantive reform would be redundant in the light of Presidential immunity and lack of enforceability. significantThe Draft Constitutiongrant of power. of 2000 (Sri Lanka) Accordingly, a paradigm shift in the current politi- Under the Draft Constitution, the ‘Constitutional cal ethos would be an essential prerequisite to the Council’76 devolution of police power. to both the National Police Commission (NPC) and the Regional plays Police a significant Commission role (RPC). in appointments The Coun- 3.2. Options for Reform cil consists of the two Vice-Presidents (envisaged The discourse on police power in any democratic under the provisions of the draft Constitution); the Prime Minister; the Leader of the Opposition; the Leader of the House; the Minister of the Cabinet of society has two aspects: first, the realisation that- Ministers thetrols, police checks are and empowered balances; andto exercisesecond, thesignificant under- Affairs; the Chairman of the Chief Ministers Confer- coercive power and thus should be subject to con in charge of the subject of Constitutional appointed by the President, upon ascertaining the powerstanding that that can subjecting be channelled the policeto serve to partisan checks and viewsence; andof the two Chief retired Justice. judges77 of the Supreme Court politicalbalances interests.could in itself,Accordingly, be a source the grant of significant of police power ideally involves the balancing of these competing interests. This is especially evident within a Service and the Regional Police Service have been constitutional scheme of devolution and federal- concentratedSignificant powers in the relatingNPC and to the the RPC, National respectively. Police ism, wherein units (i.e. States, provinces etc.) are Thus the involvement of the Constitutional Council entrusted with the exercise of coercive power. Most in appointments to these Commissions is notewor- countries have achieved this balance through the thy. exercise of institution-building, ensuring independence, competence, and functional autonomy. President on the recommendation of the Constitu- In this context, this study will consider some op- The NPC consists of five members appointed by the tions for reform of the current scheme of devolution communities in Sri Lanka should be represented tional Council, and all three numerically significant

Page 12 Devolution of Police Powers

within the Commission.78 iv. Retired High Court Judge nominated by the members: two members are appointed by the Chief Chief Justice of the High Court; Minister of the region and The three RPC members consists are of fiveap- pointed by the Governor of the region, upon being v. The Chief Secretary; nominated by the Constitutional Council acting in vi. The Secretary in Charge of the Home De- consultation with the Board of Ministers for that partment; and region.79 vii. Five non-political persons of proven repu- India tation for integrity and competence from - of September 2006, tration, media or non-government organi- the Supreme Court of India in the case of Prakash sationsthe fields to ofbe academia, appointed law, on publicthe recommen adminis- InSingh a historic and Others judgment vs. Union on of22 India and Others took dation of a Selection Panel composed of:84 the decisive step of instructing central and state governments to comply with a set of seven direc- tives, laying down proposals reforming the police be nominated by the Chief Justice of the • A retired Chief Justice of a High Court to system in India. These directions are binding upon High Court; central and state governments until they pass ‘appropriate legislations’. 80 Rights Commission; in the absence of a • The Chairperson of the State Human In October 2005, as the Supreme Court was consid- State Commission, a person nominated by ering the matter, the central government set up a the Chairperson of the National Human Police Act Drafting Committee (PADC) with the task Rights Commission; and of drafting a new model Police Act. The PADC was - mandated to take into account the changing role vice Commission. and responsibilities of the police and the challeng- • The Chairperson of the State Public Ser es before it and draft a Model Act that could guide Given its functions,85 the Commission derives much states while adopting their own legislation. value from its representative nature, especially the - ment, the PADC submitted its Model Police Act, inclusionPakistan of five non-political persons. Shortly2006 to after the Homethe Supreme Minister. Court The delivered Model Police its judg Act The Pakistan Police Order of 2002 proposed the complements the Supreme establishment of Public Safety Commissions at the federal, provincial and district levels. An important and bolts through which the directions of the Su- function of the commissions at the provincial and premeCourt judgment Court can in be that most it provides effectively the implemented. detailed nuts district levels is to ‘take steps to prevent the Police from engaging in any unlawful activity arising out One such directive issued by the Supreme Court, 86 and then countenanced in the Model Police Act of 2006 was the establishment of a State Security Theof compliance composition with of unlawfulthe National or mala Public fide Safety orders’. Com- Commission.81 The Commission was established ‘to mission and Provincial Public Safety Commission ensure that the State Government does not exercise - the political arena (at least two of whom should be lice and for laying down broad policy guidelines so iswomen), significant. and halfHalf ofof theits membersmembers areare derivedindependent from thatunwarranted the state influence police always or pressure acts according on the State to pothe members, appointed by the government on the rec- laws of the land and the Constitution of the coun- ommendation of an independent selection panel 87 try.’82 (at least two of whom should be women). The Composition of the board is to be as follows:83 3.2.2. The modalities of appointing and i. Chair: Home Minister of the State; dismissing the Head of the Police Force In the light of the hierarchical structure of the po- ii. Member-Secretary: Director General of Po- lice force, the power to appoint and dismiss its lice; head is a critical aspect of controlling the entirety iii. Leader of the Opposition in the state as- of the force. sembly;

Page 13 Devolution of Police Powers

Draft Constitution of 2000 (Sri Lanka) force and the Provincial Government has to select and appoint a person from that list.94 Despite the existence of the Constitutional Council, the Draft Constitution continues to vest the powers This approach is different to the Indian Model Act, of appointment of the head of the police force in the wherein even the nomination of names is done by President.88 a provincial body, the State Police Board. The Paki- at the President’s pleasure.89 The power to dismiss stani approach enables the central government to the head of the All policenational force public presumably officers vestshold inoffice the retain a higher degree of control over the nomina- Cabinet of Ministers, which is empowered to inter tion process. alia dismiss all Heads of Departments.90 3.2.3. Security of tenure This modality of appointment and dismissal is far from satisfactory. It is imperative that the head of the police force

India impartial exercise of his functions and duties. In or- enjoysder to preventsecurity absolute of tenure power in order being to concentratedfacilitate the In the case of Prakash Singh, the Supreme Court of India laid down the modalities concerning the ap- - pointment of the head of the Director-General of iner, thisit is office,also vital it is to also shield necessary this procedure to ensure from that arbi the- Police (D.G.P.), who is the highest-ranking Police policetrary removal. chief can be removed from his office. Howev 91 These criteria were elucidat- ed in the Model Police Act of 2006. The Act stipu- Draft Constitution of 2000 (Sri Lanka) Officerlates that in thethe State.state government should select the 95 and Re- 96 empaneled by the State Police Board for the post.92 gional Police Service - D.G.P.The State from Police amongst Board the shouldthree senior-most make its choice officers on ceptAll officers as otherwise in the National expressly Police provided Service in the Con- hold office at pleasure, ex the basis of inter alia the candidates: stitution. In the absence of such express provisions in the Draft Constitution, it can be reasonably as- i. Length of service; sumed that the head of the police force (both na- ii. Very good record; and iii. Range of experience. tionalIndia and regional) do not enjoy security of tenure. The Supreme Court in Prakash Singh and the Model composite elements93: Police Act of 2006 provide for a minimum tenure of Specific details are provided in respect to these two years97 for the D.G.P. In practice, this does not mean that erring D.G.P.s cannot be removed, it only standards as prescribed by the State Gov- makes removal consequent on laid-down grounds • Lengthernment; of service and fitness of health, in law: Assessment of the performance appraisal An action taken against her/him under the reports of the previous 15 years of service Discipline and Appeal section of the All In- • by assigning weight to different grading, • dia Services Rules; namely: outstanding, very good, good, and satisfactory; Suspension from service in accordance with the provisions of the aforementioned [Absence of] indictment in any criminal or • rules; disciplinary proceedings or on the counts of • corruption or moral turpitude; or charges Promotion to a higher post under the State having been framed by a court of law in - such cases; • of the central government, subject to the of Due weight to awards of medals for gallant- ficer’sA conviction consent; in a court of law for a criminal ry, distinguished and meritorious service. offence or a case of corruption; or • • Pakistan Being otherwise incapacitated from dis- charging duties. The Federal Government recommends a panel of • three names for the head of the provincial police

The Model Police Act specifies these conditions Page 14 Devolution of Police Powers

with more clarity and detail.98 Provincial Commissioner, in consultation with the Executive Council).100 - stand undue political interference, have time to If the National Commissioner of Police has lost the Additionally, in order to help police officers with- - - properlyprovides forunderstand a minimum the tenure needs of oftwo their years jurisdic for the premeconfidence Court of as the chairperson, Cabinet, the to inquirePresident into may the cires- tions and do justice to their jobs, the Supreme Court tablish a board of inquiry, with a judge of the Su make recommendations.101 If the Provincial Com- followingInspector categories General of officers: of Police (in charge of a cumstances that led to the loss of confidence and Zone); Council, the National Commissioner, on receiving a • Deputy Inspector General of Police (in noticemissioner from has the lost concerned the confidence Minister, of shall the Executive establish charge of a Range); • chairperson, to make an inquiry.102 Superintendent of Police (in charge of a a board of inquiry, with a person qualified in law as District); and The Board thus constituted submits its report to • the President, or to the National Commissioner depending on whether the inquiry was conducted Station). against the National or the Provincial Commission- • Station House Officer (in charge of a Police Besides cases of promotion or retirement, prema- er. In addition, the report is also to be submitted to the concerned Commissioner and to the Parliamen- be possible only consequent upon; tary committees.103 The Inquiry Report may recom- mend that (i) no action be taken in the matter; (ii) ture removalDisciplinary of the above-mentioned proceedings; officers will the concerned Commissioner be transferred; (iii) • Conviction for a criminal offence or a case his salary or rank or both be reduced; (iv) he be of corruption; or • steps.104 Being otherwise incapacitated from dis- removed from office or (v) any other appropriate charging duties. The President or National commissioner has the • option to postpone taking a decision on the recom- In addition to the above-mentioned grounds given mendations of the Board of Inquiry for a period not by the Supreme Court, the Model Police Act suggests exceeding 12 calendar months.105 If the decision is postponed, at the end of the period the same or a similar Board of Inquiry has to make a new recom- in exceptional cases, officers may also be removed and negligence; or (ii) where a prima facie case of mendation after having considered the conduct of before the expiry of tenure for (i) gross inefficiency a serious nature is established after a preliminary the Commissioner during such period.106 enquiry.99 exceptional cases, the Model Police Act sets out two This same procedure applies to any inquiries into types of safeguards: When an officer (i) the isauthority removed which under orders these an allegation of misconduct by the National or Pro- the transfer must inform the next higher authority vincial Commissioner or any inquiries into his or and the Director General of Police of the grounds - for the premature transfer in writing, and (ii) the 107 - her fitness for office or capacity for executing offi lishment Board to submit a representation against cial3.2.4. duties Powers efficiently. of appointment, tansfer, aggrievedhis/her premature officer may removal. approach The theBoard Police is empow Estab- promotion and disciplinary control ered to consider the merits of the case and make The ability to administer decisions regarding ap- appropriate recommendations to the transferring pointment, transfer, promotion and disciplinary authority. control can be misused, both as a political tool and South Africa conscientiously. National and provincial Commissioners of Police a chilling effect on police officers who aspire to act of their appointment or a shorter period as may be determinedenjoy a minimum as the tenure time of of hisfive appointment years from the by date the separatePolice Acts mechanisms in many jurisdictions and institutions make a to distinction adminis- President (in relation to the National Commission- betweenter such thedecisions. senior andEven junior though hierarchy many andvariations adopt er) or the National Commissioner (in relation to the exist, generally the government (either central or

Page 15 Devolution of Police Powers

regional) takes decisions concerning seniors, and and the Model Police Act of 2006 follows a trend the head of the police (either central or regional) in international best practice that the government takes them for lower ranks. has a role in appointing and managing senior police leadership, but service-related matters of other Draft Constitution of 2000 (Sri Lanka) ranks remain internal matters.119 The NPC is responsible for the recruitment, promo- Nigeria tion, transfer, disciplinary control and dismissal of Nigeria has established a Police Service Commission to take all decisions concerning the appointment officersone Region in the to another National in Policeconsultation Service with and the for rele the- vanttransfer Regional of officers Police of Commissions. a Regional Police108 Powers Service of from the Force, other than its head120, and to take decisions Commission relating to disciplinary control may concerningand promotion the exerciseof all officials of disciplinary of the Nigeria control Police and powers of dismissal over the same persons.121 The below the rank of the Senior Superintendent of Po- Commission is headed by a Chairperson, and also lice.be delegated109 to any officer of the police service not

The Regional Police Commission is responsible for belowcomprises the ofrank a retired of Commissioner justice of the of Supreme Police.122 Court The the recruitment, promotion, transfer, disciplinary orCommission Court of Appeal also consists and a retiredof one policerepresentative officer not of - the interests of women, the Nigerian press, NGO’s 110 lice Service. In order to do this, it may adopt any in Nigeria, the organised private sector, and the control and transfer of officers111 of the Regional Po Secretary to the Commission.123 criteriaIndia specified by the NPC. The composition of the Police Service Commission To ensure that decisions related to career advance- of Nigeria is instructive, and much of its value derives from its representative character. Court of India in Prakash Singh issued a directive to mentcreate are a Police not made Establishment by just one Board officer,112 thecomposed Supreme of 3.2.5. Accountability mechanisms the Director General of Police and four other senior The establishment of an independent body to re- ceive complaints from the public is an integral com- 113 ponent of the effective functioning of a police force. officers of the police department. The Model Police- Given the level of expertise required and the variety inAct the clarifies police organisation the fact that of thethe state.four other114 officers of concerns, it is essential that this body be dedicat- should be the four other senior-most officers with ed exclusively to look into complaints against the The Police Establishment Board performs the fol- police. lowing functions: 1. The consideration and recommendation of the United Kingdom The Independent Police Complaints Commission and Inspector for posting to a Range and the (IPCC) was a creature of the United Kingdom Police names of officers of the ranks of Sub-Inspector115 transfer from one Range to another. Reform Act of 2002.124 The Commission consists 2. Make recommendations to the state govern- 10 other members appointed by the Secretary of the ranks of Assistant/Deputy Superinten- ofState. a chairperson125 The functions appointed and duties by Her of theMajesty, Commis and- mentdents onand postings above in and the transfers police organisation of officers toof sion are extensive.126 Generally, it is empowered the state, excluding the Director General of Po- to supervise and investigate public complaints lice.116 The state government is expected to give against the police and can take over the supervi- due weight to these recommendations and nor- sion or investigation of any complaints case. The mally accept them.117 Head of Police must by law give the IPCC access to 3. Be a forum of appeal118 for disposing of rep- police documents and premises. Complaints can be - made by persons other than victims or even via a perintendent of Police and above regarding: third party or through independent organisations (i)resentations their promotion from officersor transfer; of the (ii) disciplinaryrank of Su like the Citizens’ Advice Bureau. Complainants have proceedings against them; or (iii) their being the right to appeal to the IPCC if their complaints are not registered. Complainants are kept informed Notably, the recommendation of the Supreme Court about the progress and conduct of the investigation subject to illegal or irregular orders.

Page 16 Devolution of Police Powers

into their complaint and given a summary of evi- Where the President, upon the advice of the Prime dence, explaining how conclusions were reached. If Minister, is of the opinion that the security or public order in a region is threatened by armed insurrection, grave internal disturbances or any act of theSouth complainant Africa is not satisfied, he/she can appeal. the Regional Administration that presents a clear South Africa has established an Independent Po- and present danger to the unity and sovereignty of lice Investigative Directorate. It is structured at the Sri Lanka, the President may make a proclamation 127 and is em- bringing the provisions of the law relating to pub- 133 powered to investigate police misconduct at both lic security into force in the region. Accordingly, national leveland provincialwith provincial levels. offices The Independent the President may deploy the armed forces or any Complaints Directorate functions independently unit of the National Police Service for the purpose and has its own staff.128 It investigates129 inter alia of restoring public order and making regulations deaths in police custody and deaths occurring as a which override, amend or suspend any written law, result of police action; police involvement in crimi- except the provisions of the Constitution relating to nal activities such as assault, robbery, theft of motor any matter on List 1 of the Second Schedule or any matter provided for in the Chapter on Defence, Na- vehicles etc. and police conduct or behaviour which tional Security, and Law and Order.134 is prohibited by the police regulations, such as violation of the code of conduct or neglect of duties; Where the Governor of a region, upon being ad- and failure to protect victims of domestic violence vised by the Chief Minister of the region, is of the under the Domestic Violence Act. The Minister, in opinion that a situation has arisen in the region or consultation with the Parliamentary Committees, part thereof, wherein the preservation of public or- nominates the head of the Directorate.130 He/she is der or the maintenance of supplies essential to the appointed to the post only when the nomination is life of the community is threatened, the Governor may request the President to make a proclamation. she is required to submit an annual report to the This would then bring the provisions of the law re- confirmed by the Parliamentary Committees. He/- lating to public security for the time being in force nancial year, which has to be tabled in Parliament in the region or a part of the region.135 When such a Ministerby the Minister within within three months14 days. of the end of the fi proclamation is made, the Centre may lawfully ex-

3.2.6. Provisions relating to emergencies and public security ofercise the powersChief Minister specified of onthe the region. regional136 Further, list, as may the bePresident specified may by makethe Governor regulations acting which on the override, advice In any scheme of devolution or federalism, the cen- amend or suspend any written law, except the pro- tral government reserves the power to intervene in visions of the Constitution relating to any matter the province in exceptional circumstances. Proce- dural safeguards are essential to ensure that pro- advice of the Chief Minister of the region, in the re- vincial autonomy is not arbitrarily impinged upon. gionalas may list be137 specified. All regulations by the Governor have thus acting to be onmade, the Draft Constitution of 2000 (Sri Lanka) as far as practicable, in consultation with the Gov- ernor acting on the advice of the Chief Minister and Where the Chief Minister of a region seeks the as- the Regional Advocate General.138 sistance of the NPC to preserve public order within the region, the NPC-er is mandated to deploy such Certain general procedural safeguards are stipu- personnel as are necessary for the purpose.131 lated.139 autonomy is that when a proclamation is made un- The power to make emergency regulations under der Article A significant 220 it ceases safeguard to be into forceprotect in regionalthat re- the Public Security Ordinance or the law relating to gion after 90 days unless approved by the Regional public security includes the ability to make regula- Council within 10 days of expiration. If the Region- tions on any matter in List I of the Second Sched- ule (the Reserved List) and to the extent strictly the time of expiration of such period, it ceases to be required in the interests of public security and the al Council is adjourned, prorogued or dissolved at preservation of public order, or from the mainte- Regional Council thereafter.140 Also, when a procla- nance of supplies and service essential to the life of inmation force isunless made approved according at to the Article first meeting 221, it ceases of the the community, on any matter in List II of the Sec- to be in force in that region unless approved by the ond Schedule (the regional list).132 Regional Council within 14 days of the making of

Page 17 Devolution of Police Powers

such a proclamation, or if the Regional Council is lamation, the President is directed to constitute a tribunal for the purpose of ascertaining the contin- expiration of such period, unless approved at the ued existence of the situation that necessitated the adjourned, prorogued or dissolved at the time141 of making of such a proclamation.143 firstWhere meeting the President, of the Regional upon Councilbeing advised thereafter. by the The tribunal is to consist of a member appointed Prime Minister, is of the opinion that a situation has by the President, a member appointed by the Chief arisen in which a region is promoting armed re- Minister of the region, and where the Regional bellion, insurrection or engaging in the intention- Council has been dissolved, by the person who pre- al violation of Article 1, 2, or 3, the provisions of Chapter XV (Devolution of Powers to the region) or of such dissolution, and a Chairperson nominated Chapter XXII (Defence, National Security and Law byviously the membersheld the office so appointed. of Chief Minister Where thereat the istime no and Order) which constitutes a clear and present agreement, the Chairperson is to be nominated by danger to the unity and sovereignty of Sri Lanka, the Constitutional Council.144 Upon receiving the the President may by proclamation assume to him- tribunal report, the President has to lay the report self all or any of the functions of the administration before Parliament within a period of 30 days. If the of the region, and all or any of the powers vested tribunal reports that the situation necessitating a in or exercisable by the Governor, the Chief Minis- proclamation ceases to exist, the President will re- ter, the Board of Ministers, or any authority in the voke the proclamation, and in any case where the region. Where it is necessary for the effectual exer- Regional Council has been dissolved, re-summon cise of these powers, he may dissolve the Regional such Regional Council.145 Council.142 Within 14 days of making such a proc-

Page 18 Devolution of Police Powers

PART 4: COMPARATIVE ANALYSIS

Despite the 13th Amendment being in place for the agitation, calling for the separation of Northern Ire- land from the UK, by engaging in various terrorist devolve police powers to the provinces as it envis- activities. pastaged. twenty The central five years, government there ismay still be reluctance reluctant to allow provincial police forces, due to fears of anoth- 4.2. Summary of Organisation of er possible insurgency. Police Forces 4.1. Overview of Separatist Canada Movements in Canada and the Police duties are divided between the federal police United Kingdom force and provincial police force. The federal police force, the Royal Canadian Mounted Police (RCMP) Canada is responsible for the enforcement of the Criminal Code and all other laws made by, or under the au- The Front de Libération du Québec (FLQ) was a thority of the Parliament of Canada. The provincial revolutionary movement engaged in terrorist ac- police forces are responsible for the enforcement of tivities from 1963 to 1970, demanding an indepen- law within the provinces and are governed by the dent, socialist Québec. Police Act enacted by the respective provincial gov- United Kingdom ernment. Provinces can maintain their own police forces, or contract out policing duties to the RCMP. In the early 20th century, there were calls for separation of Ireland from the United Kingdom (UK). United Kingdom The Government of Ireland Act 1920 was passed The police force in the UK is structured by way of by the UK Parliament, which partitioned Northern territorial police forces operating independent of Ireland and Southern Ireland, and established two each other. Independent police forces operate in separate Parliaments in these areas. England, Wales, Scotland and Northern Ireland. Wales, Scotland and Northern Ireland are given the The following year was marked by a period of guer- power to operate their own police forces, following rilla warfare between the nationalist Irish Republi- the devolution of powers through the Government can Army (IRA) and the British Army, resulting in of Wales Act 1998, Scotland Act 1998 and Northern the signing of a treaty which created an Irish Free Ireland Act 1998 respectively. State. 23 Southern counties and 3 counties in Ulster made up the Irish Free State, while the remaining In England and Wales, there are 44 territorial po- 6 counties made up Northern Ireland. In 1949, the lice forces governed by the Police Act 1996. Scot- Irish Free State became an independent republic, land maintains the Police Service of Scotland and while Northern Ireland remained a part of UK. Sub- Northern Ireland maintains the Police Service of sequently, in the late 1960’s, the IRA commenced Northern Ireland.

Page 19 Devolution of Police Powers

4.3. Comparative analysis of legal and political provisions and mechanisms developed in specific jurisdictions to address possible concerns that could arise from the devolution of police powers.

Secessionist tendencies : Concerns could arise with respect to the possibility of separatist elements or any remaining supporters exercising influence or attempting to take over the police force, and using these resources to agitate for a separate state. Table 1 Canada United Kingdom Sri Lanka

i. Emergencies Act. i. Specialist Police Forces i.

The Emergencies Act 1985 authorises the The UK Government maintains several spe- The DisciplinaryNational Police action Commission against police (NPC) officers. is Government of Canada to implement special cialist police forces with special tasks. Most of empowered to hear and determine appeals temporary measures in order to ensure safe- these forces have jurisdiction throughout the - ty and security during national emergencies. UK and provide means to identify and deal sions against whom disciplinary action has This Act replaced the War Measures Act 1914. with potential threats. beenfrom taken officers by Provincial seconded Police to Provincial Commissions. Divi The 17th Amendment authorised the NPC to ii. Maintenance of federal police units across ii. Inspection of local police forces. establish procedures to entertain and deal Canada. Her Majesty’s Inspectorates of Constabulary with public complaints and complaints of ag- The federal police force – Royal Canadian (HMIC) is a body responsible for the inspec- th Mounted Police (RCMP) - maintains federal tion of police forces in the UK. The Secretary service. The 18 Amendment expressly pro- grieved persons against a police officer or a units in the provinces which have their own of State can direct the inspectors of the con- vides that the powers of the new NPC include provincial police forces, i.e. in Québec and On- stabulary to inspect and report on a police the investigation of complaints against police tario. force maintained for any police area, as well - as on certain specialist police forces. vision of redress for these offences. officers by any aggrieved person and the pro The Police Service of Northern Ireland (PSNI) The NPC also possesses disciplinary power over the District Inspector General (D.I.G.). by the HMIC, as given in Section 41 of Police This ensures that even though the D.I.G. heads (Northernis specifically Ireland) subject Act to 1998. an annual inspection the provincial police force, he is still accountable to a central body. iii. Accountability of local police forces. This system would provide the Centre to look The police force in England and Wales are ac- into activities of the provincial police forces countable to the public through a ‘tripartite’ and authorise them to take action against po- - local police authority and Chief Constable of ing the cause for separatism. thegovernance force. structure, i.e. the Home Office, the lice officers who engage in activities further

Page 20 Devolution of Police Powers

Canada United Kingdom Sri Lanka ii. Arms and Equipment to police forces The NPC is responsible for the determination

ammunition and other equipment for both theof the National nature, and type Provincial and quantity divisions. of fire-arms, There- fore, the NPC has the option of restricting the equipment supplied to provincial divisions. iii. Training of Police Forces. The Central Government is responsible for the training of recruits and members of all divisions of the police force.

Page 21 Devolution of Police Powers

Challenge to Central Power: The devolution of police powers to provincial governments could supersede the powers of the Centre and block their control over the police force, which is the main law enforcement agency in Sri Lanka. Table 2 Canada United Kingdom Sri Lanka

i. Clear division of powers between federal i. Central government authority over na- i. Clear division of duties and provincial police forces tional security The 13th Amendment provides for two divi- The federal police force – the Royal Canadi- Devolution of police powers to Wales, Scot- sions of the police force, i.e. the National Di- an Mounted Police (RCMP) – is responsible land and Northern Ireland was given effect by vision (including Special Units) and a Provin- for the enforcement of the Criminal Code and the Government of Wales Act 1998, Scotland all other laws made by, or under the authority Act 1998, and the Northern Ireland Act 1998 the cadres within each division. The entire Sri of the Parliament of Canada, while the pro- respectively. However, the UK Parliament has Lankacial Division Police Forcefor each is under Province the controland specifies of the vincial police forces are responsible for the reserved the right to pass legislation in ar- I.G.P. enforcement of law within the provinces and eas relating to national security through the will be governed by the Police Act enacted by above mentioned Acts. ii. Restriction on powers devolved under th the respective provincial governments. the 13 Amendment Scotland – Section B8 of Schedule 5 of the ii. Criminal Law in Canada. Scotland Act 1998 provides that the re- The devolution of powers in this area is limit- • served matters which are matters which ed to police and public order. Section 91(27) of the Constitution Act 1867 can be legislated on by the UK Parliament. Powers in respect of national defence, na- provides that the Parliament of Canada has These matters include national securi- the legislative authority in respect to ‘the tional security, and use of any armed forces ty and special powers, and other special or any other forces under the control of the criminal law, except the Constitution of provisions for dealing with terrorism. Courts of Criminal Jurisdiction, but including government in aid of the civil power have not the procedure in criminal matters’. Therefore, Wales – Section 94 of the Government of been devolved and remain under the control the Parliament of Canada has enacted the Wales Act 2006 does not place the subject of the Centre. In addition to this, the devolved Criminal Code, which is applicable to all the • of ‘national security’ within the legislative powers will not include the city of Colombo provinces of Canada. competence of Welsh Assembly. and Sri Jayawardenepura Kotte and their environs. iii. Federal control over provinces. Northern Ireland – The subjects of national security, special powers and provi- iii. Control of Central Government over Pro- RCMP divisions are maintained in the prov- • sions dealing with terrorism and subver- vincial Division police units inces which have their own provincial police sion are ‘excepted matters’ under the Act. forces (i.e. Québec and Ontario). ‘Excepted matters’ are not matters not with- Division and Provincial Divisions in any Prov- Police officers serving in units of the National iv. Role of the Attorney General of Canada. in the legislative competence of the Northern ince are to function under the direction and control of the D.I.G. of the respective province, The Attorney General of Canada has the au- Ireland Assembly, and is thus under the leg-

Page 22 Devolution of Police Powers

Canada United Kingdom Sri Lanka thority, under the Security Offences Act, to islative authority of the UK Parliament. (Sec- who is in turn accountable to and under the conduct proceedings in respect to an offence tion 5(6) of the Northern Ireland Act 1998) control of the Chief Minister. under any law of Canada, where such an offence constitutes a threat to the security of ii. Inspection of local police forces The President can assume the powers and Canada. responsibilities of the Chief Minister upon Her Majesty’s Inspectorate of Constabulary declaration of an emergency in the province; (HMIC), is a central body which functions di- or even in instances where there is no decla- rectly under the UK Government and is autho- ration of emergency, where the President is of rised to inspect all local police forces within the opinion that the security or public order the United Kingdom, as well as certain spe- of the Province is threatened and amounts to cialist police forces. a situation which requires the deployment of any unit of the National Division (provided that the respective Chief Minister is consulted and subject to the provisions of the Public Se- curity Ordinance). iv. Power of Centre to prevent the creation and functioning of the Provincial Police Divisions The Centre is responsible for certain administrative functions with respect to the Provin- cial Police Divisions. In the event the Centre fails to or refuses to carry out these duties, it would prevent the formation of these Provin- cial Divisions. The Centre has the potential to: - cial Division, refuse to approve cadre, re- • fuseRefusewq to appoint second a Provincial officers to D.I.G., the Provin refuse to make appointments to the Provincial Police Commission. The National Division may continue to exercise the Provincial

v. Division’sFinancial control powers by indefinitely. the Centre The provisional administration is responsible

Page 23 Devolution of Police Powers

Canada United Kingdom Sri Lanka

of each Provincial Division, with the approval offor the fixing NPC. the However, cadre of officersthe Centre and otheris the ranksbody responsible for determining the salary scales

Provincial Divisions, after consultation with theand Chief perquisites Ministers. of office of both National and

Page 24 Devolution of Police Powers

Threats to national security: Decentralisation of powers would decrease control over the provincial forces with respect to administrative matters etc. This may make it more difficult for the central powers to detect possible threats to national security from within the police forces. Table 3 Canada United Kingdom Sri Lanka

i. Role of Federal Police i. i. Role of the National Division

The RCMP primarily has responsibility over ii. UK Home Office in Northern Ireland The National Division is responsible for the offences which constitute a threat to the se- prevention, detection and investigation of all curity of Canada and offences against interna- partnershipThe UK Home with Officethe Northern maintains Ireland the - tionally protected persons. Northern Ireland Office, which works in co-ordinates the government’s strategic offences specified in the Schedule. The offenc To facilitate this role, the RCMP has the Na- responseExecutive. to The terrorist Northern threats Ireland and in Officedoing es so Offences specified against include, the among State; others: tional Security Criminal Investigations Pro- • Offences relating to the Navy, Army and gram which is responsible for conducting Government, the Police Service of North- criminal investigations into national security Air Force; ernso, the Ireland Office (PSNI), works closelythe Security with the Service Irish • related terrorist and criminal activity. and An Garda Síochána (Police force in Any offence prejudicial to National Secu- ii. Emergencies Act Southern Ireland) rity or the maintenance of Essential Ser- • vices; Section 2(2) of the Emergencies Act autho- iii. rises the Government of Canada with the au- International Crimes. Specific Terrorism legislation Act 2000 targeting - provides terrorism for specif- thority to deal with emergencies on any prop- ic measures to be adopted in the event of ii. • State of emergency erty, territory or area in respect to which the • Upon declaration of an emergency in the Parliament of Canada has jurisdiction. provisions to address issues in Northern Province, the President may assume such Ireland.terrorism, and further provides specific - • powers and responsibilities of the Chief gency’ as an urgent and critical situation of a Terrorism Prevention and Investigation Minister and the Provincial Administra- Section 3 of the Act defines a ‘national emer temporary nature that seriously endangers Measures Act 2011 - authorises the Sec- tion with respect to public order within Canadians and is of such proportions that it • - the Province. would exceed the capacity or authority of the ism prevention and investigation mea- The I.G.P. may deploy units of the National province to address it, or is a situation where suresretary on of anState individual, to impose subject specific to certainterror Division in a province whenever a state of the ability of the Government of Canada to conditions being met. preserve the sovereignty, security and terri- • emergency has been declared in the Prov- torial integrity of Canada is threatened. iv. Control of National Security Intelligence ince. The National Security Intelligence work car- Section 5 of the Public Security Ordi- ried out in Northern Ireland is placed within nance authorises the President to make •

Page 25 Devolution of Police Powers

Canada United Kingdom Sri Lanka the scope of the Security Service. Emergency Regulations as necessary or expedient in the interests of public secu- This was previously carried out by the Roy- rity, for the preservation of public order al Ulster Constabulary (RUC) and then by the and the suppression of mutiny, riot or civ- PSNI. il commotion, or for the maintenance of However, in 2007 the Government of UK supplies and services essential to the life placed this role under the Security Service, of the community. thereby ensuring that this line of work is car- iii. Grave internal disturbance ried out in the same way as the rest of the UK. Even if there has been no formal declaration v. Royal Military Police division in Northern of a state of emergency, in instances where the Ireland President is of the opinion that the security of The Royal Military Police maintains a Special or public order in a Province is threatened by Investigation Branch (SIB) division in North- grave internal disturbance, the President may, ern Ireland. This division is responsible for in consultation with the Chief Minister, deploy intelligence and control of police and civilian any unit of the National Division in the Prov- activities in that area. ince to restore public order. iv. Role of armed forces to maintain public order - Section 12 (1) of the Public Secu- rity Ordinance authorises the President to make an Order published in the Ga- zette, to call out all or any members of all or any armed forces for the maintenance of public order in that area. This can be utilized in instances where circumstances which endanger the public security in any area have arisen or are imminent, and the President believes that the Police are inadequate to deal with such a situation in that area.

Page 26 Devolution of Police Powers

Intensive development in the North and East: Several development projects are being implemented in the North and East (such as the Sampur power plant, Heavy Industrialised Zone in Trincomalee etc.) If police powers were to be devolved to provinces, the provincial police forces would have important economic infrastructure under their control, and in the event the police force becomes a separatist movement, they would have significant control over the economic sources. Table 4 Canada United Kingdom Sri Lanka

i. Special police forces developed to protect i. Control of central government over devel- important infrastructure opment The British Transport Police is a national Urban Development Authority Act No. 41 police force responsible for policing rail- of 1978 provides for the creation of an • ways throughout England, Scotland and • Urban Development Authority and any Wales. area declared as an urban development area will be under the control of this Au- The UK Atomic Energy Authority Con- stabulary is an armed force established to the authority over these areas as pro- • under the Atomic Energy Authority 1954, videdthority. for This in SectionAct gives 8 ofsignificant the Act and powers as a with the authority to provide armed pro- result these areas would come under the tection to civil nuclear sites in order to full control of this central body. guard against terrorist attacks. Urban Development Projects (Special Provisions) Act No.2 of 1980 authorises • the acquisition of any particular land or lands for the purpose of carrying out an urban development project, as provided for in Section 2 of the Act. In addition to this, Section 4 of the Act provides that the Supreme Court would have the jurisdiction in respect to any Order made under Section 2 of the Act.

the central government over development projectsBoth these and Acts would confer entitle significant the central power govern on- ment to enforce control in terms of security over these projects. Therefore, even though ‘planning’ is one of the topics that falls in the

Page 27 Devolution of Police Powers

Canada United Kingdom Sri Lanka concurrent list of the Constitution, thereby allowing both the central government to legislate on this area only with the concurrence of the Provincial Councils, these Acts would restrict the power of the provincial governments to enforce control over these projects. This in turn would also restrict the control these provincial police forces could exercise over these development projects, as it is an area which falls within the purview of the national government. The lands acquired under this Act to carry out urban development projects would generally fall within the scope of projects which are of national importance. These Acts therefore, provide almost exclusive control to the Ur- ban Development Authority, which is a central body over such projects deemed to be of national importance. This will limit the control provincial governments would have over such infrastructure, as the central body has the authority to enforce controls with respect to security and ensuring its safety.

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ANNEXURE

Overview of the organisation of police force in the authority of the Parliament of Canada. other jurisdictions Further, the RCMP is also able to provide policing services to provinces and municipalities under Canada the terms of a policing agreement.149 Presently, the RCMP provides contractual police services under The police force in Canada is administrated on the terms of policing agreements to eight provinc- 150 three main levels, namely the federal, provincial es and three territories (i.e. Yukon, the Northwest 151 and municipal level. The Constitution of Canada ex- Territories and Nunavut) and under separate pressly provides for the authority of each level of municipal policing agreements to 180 municipali- 152 government with respect to police powers. ties. 1. Constitutional provisions regarding law Other responsibilities of the RCMP include protection of foreign missions and important Canadian enforcement persons, policing duties for the United Nations and provision of operational support services to all po- The role of the Parliament of Canada and the prov- lice forces in Canada.153 inces in Canada with respect to police powers is governed by the Constitution Act 1867. 2.2. Policing at a provincial level Section 91(27) of the Constitution Act 1867, pro- The provincial governments are responsible for the vides that the Parliament of Canada has the legislative authority with respect to ‘the criminal law, and therefore have the duty to maintain their own except the Constitution of Courts of Criminal Ju- administrationpolice force. The of provinces justice withincan either their develop provinces, their risdiction, but including the procedure in criminal own police force or contract policing duties to the matters’. RCMP. The provincial police force will be respon- Section 92 (14) provides that the provincial legis- sible for the implementation of the Criminal Code, lature is to have the exclusive power to make laws enacted by the Parliament of Canada, and the provincial statutes, enacted by the provincial legisla- province, including the Constitution, maintenance tures within the respective provinces. Each provin- andin relation Organisation to ‘the of administration Provincial Courts, of justice both of in Civil the cial government enacts a Police Act, through which and of Criminal Jurisdiction, and including Proce- the provincial police force will be regulated. dure in Civil Matters in those Courts.’ 2.3. Policing on a municipal level In this respect, the Parliament of Canada has enacted the Criminal Code,146 which is applicable in all At the municipal level, there are three options with the provinces of Canada. The provinces are respon- respect to municipal policing services. The munici- sible for maintaining their own police forces and - can enact laws dealing with the organisation of the isting police force or enter into an agreement with police force in their respective province. apalities provincial may policeform their force own or the police RCMP. force,154 join an ex 2. Organisation of Police forces 3. Separatist movement in Québec

2.1. Policing at the federal level The state of Québec is one of the two provinces with its own police force. The provincial police force in The Royal Canadian Mounted Police (RCMP) is the Quebec, which is known as the Sûreté du Québec, federal police force in Canada and is governed by provides police services to all regions of Québec the Royal Canadian Mounted Police Act.147 Section and is regulated by the Police Act.155 5(1) of the Act provides that RCMP will be under This provincial police force has been in existence the control of the Commissioner, who, under the since 1870 and continues to function even though direction of the Minister,148 has the control and this state was in the midst of several revolutionary management of the Force and connected matters. independence movements in the 1950s and 1960s. The RCMP is responsible for the enforcement of the Criminal Code and all other laws made by, or under The Front de Libération du Québec (FLQ) was

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a prominent revolutionary movement which 4.2. Federal control within the provinces emerged in 1963, calling for an independent, socialist Québec.156 In the period from1963 to 1970, RCMP divisions are maintained by the federal gov- the FLQ was involved in several terrorist activities ernment in the provinces which have their own and was also responsible for the events which are provincial police force (i.e. Québec and Ontario). now referred to as the ‘October Crisis’.157 In October 1970, the British Trade Commissioner in Montréal, In Québec, the RCMP division (referred to as the ‘C’ James Cross, was kidnapped. This was followed by division) was created in 1920 and is tasked with another act in which the Minister of Immigration enforcing federal statutes within the province. This and the Minister of Labour, Pierre Laporte, was kid- division maintains its headquarters in Montréal, napped and killed.158 and maintains detachments in two districts, namely the East and West districts. The services offered The escalation in the acts of violence resulted in a by the RCMP division focuses on action against formal request by the Québec government for the highly criminal organisations on a national and in- assistance of the Canadian Armed Forces to sup- ternational level. In addition to this, the division is plement the local police. The federal government - al and border security, criminal intelligence and War Measures Act 1914. Through this Act, the fed- involvedprovision in of fields protective such as services. financial162 integrity, nation waseral governmentable to intervene was able under to sendthe jurisdiction in troops into of the state of Québec and temporarily suspended civil In Ontario, the RCMP division (referred to as the liberties. The use of this Act during the ‘October ‘O’division), which was created in 1920, is also Crisis’ was the only instance it was used in a do- tasked with the responsibility to enforce the law mestic crisis.159 in federal matters. This division is divided into three districts within Ontario, namely the Greater 4. Mechanisms adopted by the federal Toronto Area District, the North East District and government to maintain control in the South West District.163 This federal division is provinces involved in providing services with respect to com- mercial crime, criminal intelligence and drug traf- 4.1. Legislative measures customs and excise section as well as the immigra- The War Measures Act 1914 is an Act through ficking,tion and Further, passport the section. division164 is also involved in the which the federal government could employ emergency measures to maintain security and order 4.3. Threats to National Security165 during war. Section 6 of the Act provided certain broad powers to the Governor in Council in the event of ‘the existence of real or apprehended war, action in instances of threats to national security. invasion or insurrection’ as would be ‘necessary or InThe order federal to facilitatepolice have this, specific Security authority Offences to Act take166 advisable for the security, defence, peace, order and provides that the members of the RCMP have pri- welfare of Canada’. The War Measures Act was re- mary responsibility of alleged offences which arise pealed in 1988, but has been replaced by the Emer- out of conduct constituting a threat to the security gencies Act.160 of Canada and offences against a person who is an 167 The Emergencies Act161 authorises the taking of internationally protected person. In this respect, special temporary measures to ensure safety and the RCMP maintains the ‘National Security Criminal security during national emergencies. Section 2(2) Investigations Program’ through which the force is of the Act provides the Government of Canada with responsible for conducting criminal investigations the authority to deal with emergencies on any into national security – related terrorist and crim- property, territory or area which the Parliament of inal activity. There are two key components within the Program, namely the Integrated National Secu- rity Enforcement Teams (INSETs) and National Se- andCanada critical has situationjurisdiction. of a A temporary ‘national emergency’ nature that has security Enforcement Sections (NSESs). The INSET beenriously defined endangers in Section Canadians 3 of the and Act is ofto suchbe an propor urgent- tions that it would exceed the capacity or author- consists of representatives from the RCMP, federal ity of the province to deal with it, or is a situation partners and agencies and provincial and munici- where the ability of the Government of Canada to pal police services, while the NSES consists only of preserve the sovereignty, security and territorial RCMP employees. These two components maintain integrity of Canada is threatened. divisions across the country.

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The Attorney General of Canada is also given au- police district and the City of London police area. thority under the Security Offences Act168 to conduct proceedings of an offence under any law of These forces are accountable to the public through Canada, where such offence arises out of conduct a ‘tripartite’ governance structure. The ‘tripartite’ which constitutes a threat to the security of Can- governance structure is used to indicate the distri- ada within the meaning of the Canadian Security bution of responsibilities over the police, between Intelligence Service Act.169 The Canadian Security chief constable of the force. the Home Office, the local policy authority and the security of Canada’ to include activities within or Intelligencerelating to Canada Service which Act has are defineddirected ‘threats towards to or the in support of the threat or use of acts of serious vio- Thethe Police Home Reform Office Actis responsible 2002, the Secretary for ensuring of State that is lence against persons or property for the purpose of therequired police to service prepare is a efficient National and Policing effective. Plan Underwhich - must be approved by Parliament, which would in- tive within Canada or a foreign state. It further in- - achieving a political, religious or ideological objec cludes activities which are directed towards under- ing priorities for the police forces in England and mining covert unlawful acts, or directed towards or clude,Wales. 176among other specifics, the strategic polic intended to lead to the destruction or overthrow by violence of, the constitutionally established system The local police authorities are responsible for de- of government in Canada.170 termining the strategic direction of the force. Each of the 44 police forces has a police authority which will consist of members of the local council and in- United Kingdom dependent persons who are representative of the community. The United Kingdom (UK) government is in the The Chief Constable is responsible for the direction form of a constitutional monarchy and legislates and control over the force and acts independent of through a parliamentary system. The UK consists the police authorities and the government. Each of four countries namely, England, Wales, Scot- Chief Constable will be accountable to the Home land and Northern Ireland. Legislative power has Secretary and to the local policy authority. been devolved to Scotland, Wales and Northern Ireland.171 This devolution of powers was achieved There are also two special territorial police forces: through the Scotland Act 1998, the Government of Wales Act 1998172 and the Northern Ireland Act Metropolitan Police Service - The Metro- 1998.173 politan Police Service is the territorial po- • lice force responsible for law enforcement 1. Organisation of Police Force in UK in Greater London. It was established under the Metropolitan Police Act 1829. This Ser- The police force in the UK is structured by way of vice, in addition to its duties of territorial territorial police forces operating independent of - each other, rather than in the form of a single uni- cialist operations. The Specialist operations tary body similar to a national police force. consistpolicing, of also a protection performs certaincommand, specific security spe Within each country, the police forces are divided command and a counter terrorism com- by geographical divisions. In this respect, England mand, within which there are several units and Wales have 43 territorial forces, Scotland has responsible for protecting and preventing 177 the Police Service of Scotland and the Northern against terrorism. This police force is Ireland has the Police Service of Northern Ireland able to provide some of these services in all (PSNI).174 parts of the UK.

1.2. Police Force in England and Wales City of London Police - The City of London Police is a territorial police force which pro- In England and Wales, there are 44 independent • vides policing services within the area of a police forces, governed by the Police Act 1996 square mile in Greater London. This area (which replaced the Police Act 1964). Section 1 of the 1996 Act divides the police areas into the areas Centre and is thus under constant threat listed in Schedule 1 of the Act,175 the Metropolitan fromis an internationalterrorism and financial fraud related and business crime.

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This police force is therefore responsible for protecting the City of London from ter- as the Specialist Crime Division. This division per- rorism and extremism and fraud.178 withforms jurisdiction specialist investigative in all parts and of intelligenceScotland, known functions with respect to crime investigations, public 1.2. Police Force in Scotland protection, counter terrorism, intelligence and saf- er communities. The Scotland Act 1998 devolves responsibility over police powers to the Scottish Parliament.179 There- 1.3. Police Force in Northern Ireland fore, the Government in Scotland is in charge of the organisation of the police force in Scotland. The police force in Northern Ireland is known as the Police Service of Northern Ireland (PSNI). The Prior to April 2013, policing in Scotland was carried PSNI replaced the Royal Ulster Constabulary (RUC), out by 8 territorial police forces, the Scottish Crime which was the previous police force operating in and Drug Enforcement Agency and the Association Northern Ireland.188

01st April 2013, these police forces have been in- The PSNI functions under the direction and control 189 tegratedof Chief Policeinto a Officerssingle service, in Scotland. ‘the Police However, Service as of of the Chief Constable, who in turn is assisted by 190 Scotland’.180 the Deputy Chief Constable. In terms of organiz- ing the police force, each district will be referred - to as a police district, with the exception of Belfast, thority of the Scottish Government, the Scottish Po- which will be divided into a number of police dis- liceThe AuthorityPolice Service and theof Scotland Chief Constable. is subject to the au tricts (not exceeding 4). Further, each police dis-

The Scottish Police Authority is responsible for the appointed as the district commander.191 maintenance and direction of the Police Service.181 trict will have a police officer of the required rank The Authority has the duty to make the appoint- The other special police forces operating in North- ments of the chief constable, deputy chief consta- ern Ireland are the Belfast Harbour Police, Belfast ble and assistant chief constables, and is the body International Airport Constabulary Service and the responsible for ensuring the accountability of the Larne Harbour Police. Chief Constable. This force is held accountable by the Northern Ire- The Scottish Government has the power to issue land Policing Board and the Police Ombudsman for Northern Ireland. to certain restrictions182 and determine its strate- The Northern Ireland Police Board replaced the Po- gicdirections priorities, to thein relation Scottish to Police the policing Authority, of Scotland subject lice Authority for Northern Ireland and is respon- and the functioning of the Authority.183 The ap- and effective.192 The duties of the Board include en- approval of the Scottish Ministers.184 Further, the suringsible for that maintaining the police a force police complies force that with is efficientthe Hu- Scottishpointment Ministers of the Chief also haveConstable the authority is subject to tomake the man Rights Act 1998193, appointment of the Chief regulations with regard to the governance, administration and conditions of service of constables of State)194 and activities relating to the administra- and police cadets.185 Constabletion of policing (subject in Northern to the approval Ireland. of the Secretary The Chief Constable is responsible for the policing The Police Ombudsman for Northern Ireland was a of Scotland and is accountable to the Authority.186 body established to replace the Independent Com- mission for Police Complaints for Northern Ire- of the Chief Constable in carrying out his duties. 195 Section 17 of the Act provides for the specific duties land. The Ombudsman is to be appointed by Her The Police force itself is divided into 14 local polic- 196 This body is ac- ing divisions, and is headed by a Local Police Com- countable to the Assembly, through the Minister of JusticeMajesty for for Northern a period Ireland.of 7 years. The Ombudsman will local crime investigation, road policing, public pro- be liable for any unlawful conduct by members of tection,mander. localEach intelligence, division has community officers responsible policing and for the police force in the performance of their func- 197 for response.187 tions. In this respect, the Ombudsman provides an independent, impartial police complaints sys- In addition to this, there is a national police force tem for the people and police of Northern Ireland

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and investigates complaints made against police (RUC).203 services within the country.198 Northern Ireland and had the support of the Ul- ster Special This Constabulary force had jurisdiction(which was athroughout part time auxiliary police body). The RUC was headed by an - Inspector General, who was appointed by the Gov- In addition to this, the PSNI is subject to an annual ulary, and the constabulary will thereafter report ernor of Northern Ireland and was accountable to inspection by Her Majesty’s Inspectors199 of Constab the Minister of Home Affairs in the Government of Northern Ireland.204 the2. findingsSeparatist to the movement Secretary of in State. the United Kingdom The unique aspect of the RUC was that it was an armed police force and performed a dual role, in th The early 20 century was marked with calls for that it provided normal law enforcement police separation of Ireland from the UK. In 1920, the Par- services in Northern Ireland, while at the same liament of UK passed the Government of Ireland time protected the citizens from terrorist activities. Act, through which Northern Ireland and Southern - Ireland were partitioned and separate Parliaments tivities in the 1970’s and 80’s. During this period, a 200 were established in these areas. The Act also con- policyThe RUC referred was significant to as ‘police in combatingprimacy’ was terrorist adopted, ac through which the responsibility for security lay 201 of Ireland. However, in the following year, after a primarily with the police and army support was tained provisions to enable the eventual unification period of guerilla warfare between the nationalist available thereafter, if necessary.205 This force has Irish Republican Army (IRA) and the British forces, since then been renamed as the Police Service of a treaty was signed creating an Irish Free State. The Northern Ireland. Irish Free State comprised of 23 southern counties and 3 counties in Ulster, while the remaining 3. Mechanisms adopted by the central 6 counties of Ulster made up Northern Ireland. In government to maintain control over 1949, the Irish Free State became an independent local police forces republic, while Northern Ireland continued to remain a part of the UK. 3.1. Maintenance of special Police forces

In the late 1960’s the Irish Republican Army, an Apart from the territorial police forces, there are Irish paramilitary organisation, commenced agitation calling for separation of Northern Ireland from across the UK in order to perform certain special the United Kingdom, so as to bring about a united tasks.also several These policespecial services police forces which are: have jurisdiction Ireland. This organisation carried out several acts of terrorism during this period of time, which came Ministry of Defence Police to be known as ‘The Troubles’. In 1998, after several rounds of peace talks, a settlement was reached • The Ministry of Defence Police (MDP) is a na- referred to as the Good Friday Agreement. The IRA tional police force with units established across changed their policy stance in the Good Friday Ac- the UK at Defence and Critical National Infra- 206 cords, through which they agreed to work towards structure Sites. It is separate from the mili- a united Ireland only on peaceful terms. However, tary service police and instead operates as civil some of the actions taken by the IRA demonstrat- servants providing constabulary policing across ed that violence was still an option as members the UK so as to assist the Armed Forces in their continued to engage in criminal activities such as 207 smuggling and robbery.202 Theduties MDP of securityis governed and byconfidence. the Ministry of Defence This agreement called for an elected assembly in Police Act 1987 and persons can be appointed Northern Ireland and devolution of powers. The to this force from all parts of the United King- agreement was then approved in a referendum held dom.208 - in the Northern Ireland, and thereafter the Parlia- cise the powers and privileges of constables in ment of the United Kingdom passed the Northern This force also has jurisdiction to exer Ireland Act 1998 to implement these arrangements. the Act.209 Further, the MDP operates under the directionany place andin the control United of Kingdoma ‘Chief Constable’ as specified who in Even during the time of terrorist agitation, polic- is appointed by the Secretary of State.210 ing in Northern Ireland was carried out by a separate police force, the Royal Ulster Constabulary The MDP engages with the local police force and

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relating to crime.217 the MDP do carry out the functions of a civilian policeprovides force, assistance but also if carry requested. out several The officers specialist of roles, some of which are unique to the MDP.211 members and ordinary members. The Chair- The SOCA is to consist of a chairman, ex-officio The specialist units include marine units, the man and the ordinary members are to be ap- 218 Criminal Investigation Department (CID) and pointed by the Secretary of State. The SOCA Fraud Squad, the Operational Support Unit, the Special Escort Group, Tactical Support Group and in other parts of the world in carrying out works with agencies and officials across the UK and Divisional Support Groups. their activities. National Crime Agency (NCA)

212 (ACPO) The National Crime Agency (NCA) was intro- • Association of Chief Police Officers • duced by the UK government in July 2011219 is an independent body which acts as a central as part of its new strategy to deal with organ- structureThe Association to coordinate of Chief and Police lead Officers the police (ACPO) ser- ised crime. In this respect, the NCA will be an vices in England, Wales and Northern Ireland. - It works in active partnership with the Govern- cyber-crime,operational crimestrengthening fighting borders,agency responsiand pro- ment to organize these police services in times tectingble for childrenfighting andorganised young people.crime, Thisfraud Agen and- when a national response is needed, such as cy took on the work of SOCA and the Child Ex- instances of terrorist attacks, natural disasters ploitation and Online Protection Centre and or riots. will incorporate functions of the National Polic- British Transport Police (BTP) ing Improvement Agency.

• The British Transport Police (BTP) is a nation- Security Service al police force responsible for policing the rail- The Security Service is responsible for protect- ways throughout England, Scotland and Wales. • ing the national security of the UK, and in par- This force is accountable to the British Trans- ticular, protects it against espionage, terrorism port Police Authority (BTPA) which is com- and sabotage, from activities of agents of for- posed of 15 members appointed by the Secre- eign powers and from actions intended to over- tary of State for Transport.213 throw or undermine parliamentary democracy by political, industrial or violent means.220 The UK Atomic Energy Authority Constabu- Service is also required to support the activi- 214 lary ties of the police force, the National Intelligence • The UK Atomic Energy Authority Constabulary Service, the National Crime Squad and other law enforcement agencies in the prevention is a force which provides armed protection to and detection of serious crime.221 civil nuclear sites to guard against terrorist attacks. This Constabulary was established under The functioning of the Service is overseen by the Atomic Energy Authority Act 1954. The - liament. a licensed nuclear site and anywhere within 5 the Ministerial body, judicial body and the Par forcekm of hasa licensed jurisdiction nuclear to siteprovide (excluding protection the de at- Ministerial oversight is ensured by the Secre- fence sites which have the Ministry of Defence tary of State who appoints the Director Gener- - clear material regardless of who owns it and al, who is the official responsible222 for ensuring alsopolice). at transshipment It also has the pointsjurisdiction or storage to escort points. nu and direction of the Service. The Director Generalthe efficiency briefs of,the and Home maintaining Secretary theon changescontrol Serious Organised Crime Agency (SOCA) - tions and other serious matters.223 • The SOCA was established under the Serious to threats to national security, major investiga Organised Crime and Police Act 2005.215 The Parliamentary oversight of the Service is car- duties of the SOCA are to prevent and detect se- ried out by the Intelligence and Security Com- rious crime, contribute to the reduction of or- mittee of Parliament, through examination of ganised crime,216 and to deal with information the expenditure, administration and policy of

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the Security Service.224 legislate have been reserved. These reserved matters include national security and special Judicial oversight is carried out by independent powers, and other special provisions for deal- commissioners, appointed by the Prime Minis- ing with terrorism.233 ter, in order to oversee the work of the Security Service.225 The Welsh Assembly has the authority to make any provision that could be made by an Act of Secret Intelligence Service Parliament, as long as it is within the Assem- bly’s legislative competence.234 The topic of ‘na- • The Secret Intelligence Service performs functions in relation to the interests of national se- tional security’ is not listed as one of the areas curity, particularly in defence and foreign poli- in which the Welsh Assembly has legislative 235 cies of the government and the interests of the competence. Thus this area will be dealt with economic well- being of UK and in support of by the UK Parliament. 226 the prevention or detection of serious crime. The Northern Ireland Act 1998 also has a sim- In this respect, the Intelligence Service is re- ilar provision enabling the UK Parliament to sponsible for obtaining information relating make laws for Northern Ireland, although it to actions or intentions of persons outside the 236 British Island and performs necessary tasks in is a part of the law of Northern Ireland. The may be modified by the Assembly as far as it this regard.227 Northern Ireland Assembly does not have the competence to legislate in ‘excepted matters’.237 Royal Military Police These matters would therefore fall within the ambit of the UK Parliament and this includes The Royal Military Police (RMP) is the unit of • national security, special powers and other the British Army responsible for the policing provisions for dealing with terrorism or sub- of service personnel and military community version.238 around the world, and are the Army’s special- ists in Investigations and Policing.228 The core tasks of this force are to ‘police the Force and 239 provide police support to the Force’. In this re- • TerrorismSpecific Act legislation 2000 relating to Terrorism spect, this force has the authority to investigate crime committed by or against members of the can be taken in the event of terrorism (as de- 229 Defence Department. This Act provides for specific measures which The RMP has two specialisations, namely the a list of organisations which are proscribed240 Special Investigation Branch (SIB) and Close finedand gives in Section power to1 ofthe the Secretary Act). It ofalso State provides to add Protection (CP). or remove organisations from the list.241 Spe-

The SIB is the segment which provides inves- followed are provided with respect to Northern tigative services to the Army in the UK. In or- Ireland.cific provisions242 relating to procedures to be der to carry out their functions, this section is organised into 3 regional areas of responsibili- Terrorism Prevention and Investigation Mea- ty, 230 and within these 3 regions, the SIB main- sures Act 2011243, 244 tains centers in various cities in the UK.231 This Act authorises the Secretary of State to im- 3.2. Legislative Measures -

National Security posecertain specified conditions terrorism being met.prevention245 and inves tigation measures on an individual, subject to • While powers have been devolved to Wales, 3.3. Central control in Northern Ireland Scotland and Northern Ireland, the UK Parlia- ment still reserves the right to legislate on is- The UK Government has also taken further sues relating to national security. steps to maintain control over national security issues in Northern Ireland. The Scotland Act 1998 provides that the UK Parliament will still have powers to make laws - for Scotland.232 In this respect, there are certain matters in respect to which the power to theThe NorthernHome Office Ireland maintains Executive the Northernand through Ire land Office which works in partnership with

Page 35 Devolution of Police Powers

which they represent Northern Ireland inter- Provost Company (Investigations), which con- ests within the UK Government and represent sisted largely of SIB. The SIB has members in the UK Government in the Northern Ireland.246 - vestigation of terrorist murders and bombings, co-coordinating the government’s strategic re- providedalmost every assistance RUC CID in Office crime and scenes, assisted investiga in in- sponseThe Northern to terrorist Ireland threats Office and is responsiblein order to fordo tions, and liaised with the military communi- - ty. 252 The presence of the SIB in the Northern ernment, the PSNI, and the Security Service and Ireland will provide the UK Government with Anso, Gardathe office Síochána works (which closely is with the policethe Irish force gov in intelligence and control with respect to police Southern Ireland). The PSNI, which is the body and civilian activities in that area. responsible for day-to-day policing, is accountable to the Northern Ireland Policing Board and 3.4. Inspection of Police orces the Northern Ireland Minister of Justice. How- ever, in matters of national security, it will be accountable to the Secretary of State for North- (HMIC), headed by the Chief Inspector of Constab- Her Majesty’s Inspectorates of Constabulary ern Ireland.247 ulary, is tasked with the duty to inspect and report The UK Government has also maintained con- force.253 In this respect, the Secretary of State may trol of national security intelligence work onrequire the efficiencythe inspectors and effectivenessof the constabulary of the policeto in- through the Security Service. The Secret Ser- spect and report on a police force maintained for vice Act 1989 expressly provides that it is ap- any police area, the National Criminal Intelligence plicable to Northern Ireland as well.248 Up until Service or the National Crime Squad. 254 2007, the role of national security intelligence was carried out by the PSNI, and prior to that the RUC in Northern Ireland. However, pres- police forces in England and Wales. In addition to ently the UK Government placed the aspect of this,This theorganisation Secretary ofhas State the may jurisdiction also appoint to inspectinspec- work in Northern Ireland within the scope of tors from HMIC to carry out inspection of the Police the Security Service249,250. Through this change, Service of Northern Ireland.255 They also have au- national security intelligence in Northern Ire- thority to inspect other law enforcement agencies land will be dealt with in the same as the way it such as the Serious Organised Crime Agency, HM is dealt with in the other parts of the UK. Revenue and Customs and the British Transport Police.256 The RMP also maintains a SIB division in North- ern Ireland. The 38 Section SIB (UK) RMP is the In Scotland, this role is carried out by HM Inspec- particular division responsible for Northern torate of Constabulary for Scotland (HMICS). The Ireland. It is situated in Lisburn (which is close Police (Scotland) Act, grants authority to appoint to Belfast City) and is placed there in order inspectors of constabulary to inspect and report on to maintain control over Northern Ireland.251 the operation of police forces, the Criminal Intelli- During the ‘The Troubles’ in the 1970’s, this gence Service and related matters.257 investigative role was carried out by the 178

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Endnotes

cial Website of Sri Lanka Police, Available at: to the purpose of the 13th Amendment of the http://www.police.lk/index.php/1-1-9-emer- 1 TheConstitution judicial decisions as devolution have constantlyof power from referred the gency, (Accessed on 24.10.2013). central government to the provincial councils, - Madduma Bandara v Assistant commissioner site of Sri Lanka Police, Available at http:// of Agrarian Services, [2003] 2 Sri.L.R.80, Town 23 Sriwww.police.lk/index.php/tourist-police Lanka Police, ‘Tourist Police’, Official, Web(Ac- and Country Planning (Amendment) Bill (SC cessed on 24.10.2013) Section 80 of the Police SD 03/2011) as cited in, the Determination on Ordinance. ‘Divineguma’ Bill (SC SD 01/2012) p. 25. 25 Section 86 of the Police Ordinance. to the Provinces but with the establishment of 26 Item 2 (a), (b), Appendix I. 2 Thethe Provincialjudicial power High per Court se has (Article not been 154P) devolved there 27 Item 2:1, Appendix I. is an institutional arrangement for a court sys- 28 Item 2:2, Appendix I (emphasis added). a matter falling within the legislative compe- 29 The original text of the 13th Amendment re- tencytem which of the has Provincial the jurisdiction Council. to determine on ferred to the President but by the 17th Amend- 3 Article 154C of the 13th Amendment. ment it was to be referred to the NPC, Section 23(2) of the 17th Amendment. 4 Article 154G of the 13th Amendment. 30 Item 6, Appendix I. 5 Article 154G (1). 31 The original text of the 13th Amendment sub- 6 Ninth Schedule to the Constitution. 7 Section 22 of the Criminal Procedure Code No by the 17th Amendment the approval was to 15 of 1898. bejected given it toby thethe approvalNPC, Section of the 23(3) President of the 17butth Amendment. 8 Section 38 of Criminal Procedure Code. 32 Items 7 and 7:1, Appendix I. 9 Section 126A and 127 of Criminal Procedure Code. 33 Item 7:2, Appendix I. 10 Section 120 to 124 of the Criminal Procedure 34 The original text of the 13th Amendment re- Code. ferred to the President but by the 17th Amend- ment the responsibility is with the NPC, Sec- 11 Section 23, 32, 33 and 128 of the Criminal Pro- tion 23(4) of the 17th Amendment. cedure Code No. 15 of 1898. 35 Item 9:2, Appendix I. 12 Section 29 of the Criminal Procedure Code No. 15 of 1898. 36 Item 10.1, Appendix I. 13 Section 24,25,26 of Criminal Procedure Code. 37 Item 14, Appendix I. 14 Section 68 of the Criminal Procedure Code. 38 Item 12:1, Appendix I. 15 Sri Lanka Police, ‘Police Narcotics Bureau’, Of- 39 Item 12:2, Appendix I. 40 Item 12:3, Appendix I. http://www.police.lk/index.php/narcotic-bu- reauficial, Website(Accessed of on Sri 24.10.2013). Lanka Police, Available at: 41 Item 12:4, Appendix I. 42 Item 11, Appendix I. 43 Item 11:2, Appendix I. 16 Section 104 of the Motor Traffic Act 1951. 44 Item 3, Appendix I. 17 Section 135 of the Motor Traffic Act. 45 Item 3, Appendix I. 18 Section 148 of the Motor Traffic Act. 20 Section 63 of the Police Ordinance. 46 Item 3:2 read with 4:1, Appendix I. 19 Section 151 of the Motor Traffic Act. 21 Section 64 of the Police Ordinance. 47 Item 9, Appendix I. - 48 Items 3:3 and 3:4, Appendix I.

22 Sri Lanka Police, ‘1-1-9 Emergency’, Offi Page 37 Devolution of Police Powers

49 Item 3:1, Appendix I. of 1987. 50 Item 8, Appendix I. 76 Chapter XIV, Draft Constitution of Sri Lanka, 51 Item 4, Appendix I. 2000(‘Draft Constitution’). 77 Draft Article 122(1). 52 Item 4:1, Appendix I. Draft Constitution, 78 , Draft Article 216(1)(b). 53 Items 9 and 9:1, Appendix I. Draft Constitution 79 Draft Article 217(1)(b)(i). 54 Item 5, Appendix I. Draft Constitution, 80 55 Article 155A to the Constitution (as in the 17th Prakash Singh and others v Union of India and (2006) 8 SCC1, p8 [‘ ]. Amendment). others Prakash Singh’ 81 The Model Police Act refers to the State Secu- 56 Article 155G (1) (as in the 17th Amendment). rity Commission as the ‘State Police Board’: 57 Article 155G (4) (as in the 17th Amendment). Model Police Act, Section 41. 58 Article 155G (2) (as in the 17th Amendment). 82 Prakash Singh, p8. 59 Article 155G (3) (as in the 17th Amendment). 83 Model Police Act, Section 42(1). 60 Transparency International Sri Lanka, In Pur- 84 Model Police Act, Section 43. suit of “Absolute Integrity” Identifying causes 85 Model Police Act, Section 48. for Police Corruption in Sri Lanka, Transparen- cy International Sri Lanka, 2006, p. 62. 86 Pakistan, Police Order of 2002, Section 80(1) (b). 61 Article 155A (1). 87 Pakistan, Police Order of 2002, Sections 74(1) and 74(2) (regarding Provincial Public Safety Commissions) and Sections 86(1) and 86(2) 62 61FThe by definition the 18th ofAmendment public officer (Section includes 12). Police Officers by virtue of the amendment of Article (regarding National Public Safety Commis- 63 Article 55(3). sions). 64 Section 36(5) of the 18th Amendment. 88 Draft Constitution, Draft Article 190(1). 65 Section 28 of the 18th Amendment. 89 Draft Constitution, Draft Article 192. 66 Item 6, Appendix I as amended by Section 23 90 Draft Constitution, Draft Article 193(1)(a). (2) of 17th Amendment. 91 The term ‘State’ herein refers to the federal 67 Item 7, Appendix I as amended by Section 23 unit, and not to the State of India. (3) of 17th Amendment. 92 Model Police Act, Section 6(1) and (2). 68 Item 9:2, Appendix I as amended by Section 23 93 Model Police Act, Section 6(2). (4) of 17th Amendment. 94 Pakistan, Police Order of 2002, Section 11(1). 69 Article 55(3). 95 Draft Article 216(5). 70 N. Selvakkumaran, Legislative Devolution and Draft Constitution, the Thirteenth Amendment, 13th Amendment: 96 Draft Constitution, Draft Article 217(3). Essays on Practice, Ed. Jayampathy Wickra- 97 Model Police Act, Section 6(3). maratne, Lakshman Marasinghe, Stamford Lake, 2010, p. 88. 98 Model Police Act, Section 6(3). 71 Rules of Procedure (Investigation of Public 99 Model Police Act, Section 13(2). - 100 South African Police Service Act of 1995, Sec- lice Force) 2012, Extraordinary Gazette No. tion 7(1). Complaints1770/19, 10 againstth August Police 2012. Officers or the Po 101 South African Police Service Act of 1995, Sec- 72 Item 7, Appendix I. tion 8(1). 73 Item 7:2, Appendix I. 102 South African Police Service Act of 1995, Sec- 74 Article 155A (1), as amended by Section 26 of tion 8(2). th 18 Amendment. 103 South African Police Service Act of 1995, Sec- 75 Section 19 (1), Provincial Councils Act No. 42 tion 8(6)(a).

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104 South African Police Service Act of 1995, Sec- Directorate Act of 2011, Section 3(1). tion 8(6)(b). 128 South Africa, Independent Police Investigative 105 South African Police Service Act of 1995, Sec- Directorate Act of 2011, Section 8(1). tion 8(6)(b)(vii). 129 South Africa, Independent Police Investigative 106 South African Police Service Act of 1995, Sec- Directorate Act of 2011, Section 28. tion 8(7). 130 South Africa, Independent Police Investigative 107 South African Police Service Act of 1995, Sec- Directorate Act of 2011, Section 6(1). tion 9. 131 Draft Constitution, Draft Article 218(2). 108 Draft Constitution, Draft Article 216(1)(c). 132 Draft Constitution, Draft Article 219. 109 Draft Constitution, Draft Article 216(1)(d). 133 Draft Constitution, Draft Article 220(1). 110 Draft Constitution, Draft Article 217(1)(c)(i). 134 Draft Constitution, Draft Article 220(2). 111 Draft Constitution, Draft Article 217(1)(c)(ii). 135 Draft Constitution, Draft Article 221(1)(a). 112 Prakash Singh, pp9-10. 136 Draft Constitution, Draft Article 221(1)(b)(i). 113 The Model Police Act refers to the Police Es- 137 Draft Constitution, Draft Article 221(1)(b)(ii). tablishment Board as the ‘Police Establishment Committee’. 138 Draft Constitution, Draft Article 221(2). 114 Model Police Act, Section 53(1). 139 Draft Constitution, Draft Article 222(1) to (6). 115 Model Police Act, Section 53(4). Sections 53(5) 140 Draft Constitution, Draft Article 222(7). and 53(6) prescribe the recommendatory func- 141 Draft Constitution, Draft Article 222(7). tion of the Commission. 142 Draft Constitution, Draft Article 223. 116 Model Police Act, Section 53(3). 143 Draft Constitution, Draft Article 223(4)(a). 117 Model Police Act, Section 53(3). 144 Draft Constitution, Draft Article 223(5). 118 Model Police Act, Section 53(2) and Section 13(2). 145 Draft Constitution, Draft Article 223(4)(b) Criminal Code (R.S.C. 1985, c C-46) as amend- 119 Bruce, D. and Nield, R. (2005) The Police That ed. We Want: A Handbook for oversight of police in South Africa, Centre for the Study of Violence 147 Royal Canadian Mounted Police Act (R.S.C. and Reconciliation, Open Society Foundation 1985, c.R-10). for South Africa and the Open Society Justice 148 Minister of Public Safety and Emergency Pre- Initiative, p24. paredness. 120 Nigeria Police Service (Establishment) Act of 149 Section 20(1) and (2) of the Royal Canadian 2001, Section 6(a). Mounted Police Act (R.S.C., 1985, c.R-10). 121 Nigeria Police Service (Establishment) Act of 150 The only provinces which have their own po- 2001, Section 6(b). lice forces are Québec and Ontario. 122 Nigeria Police Service (Establishment) Act of - 2001, Section 2(1). pating and Partner States, Organisation for 123 Nigeria Police Service (Establishment) Act of 151Security OSCE POLIS,and Co-operationPolicing Profiles in Europe,of Partici at: 2001, Section 2(1)(d). http://polis.osce.org/countries/details?item_ id=13&lang=en (Accessed on 04.09.2013). 124 United Kingdom Police Reform Act of 2002, Section 9(1). 152 Royal Canadiam Mounted Police, Organisa- tional Structure, at: http://www.rcmp-grc.gc. 125 United Kingdom Police Reform Act of 2002, (Accessed Section 9(2). on 04.09.2013). 126 United Kingdom Police Reform Act of 2002, ca/about-ausujet/organi-eng.htm 153 Erica McKim, Policing in Canada Today, Public Section 10. Affairs and Information Directorate- Royal Ca- 127 South Africa, Independent Police Investigative nadian Mounted Police.

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154 Erica McKim, Policing in Canada Today, Public 1985, c.S-7. Affairs and Information Directorate-Royal Ca- 170 Section 2 of the Canadian Security Intelligence nadian Mounted Police. Service Act, R.S.C.,1985, c.C-23. 155 Chapter P-13.1. 171 Referendums were held in Scotland and Wales 156 Denis Smith, October Crisis, The Canadian in September 1997, which led to the establish- Encyclopedia – Historica Dominion at: http:// ment of a Scottish Parliament and a National www.thecanadianencyclopedia.com/articles/ Assembly for Wales. In Northern Ireland, devo- october-crisis, (Accessed on 06.09.2013). lution was a key aspect of the Belfast Agree- ment which was supported in a referendum 157 Marc Laurendeau, The Front de Libération held in May 1998. du Québec, The Canadian Encyclopedia – His- torica Dominion, at: http://www.thecanadi- 172 Superseded by the Government of Wales Act anencyclopedia.com/articles/front-de-libera- 2006. tion-du-quebec, (Accessed on 06.09.2013). 173 ‘Devolution of powers to Scotland, Wales and 158 Denis Smith, October Crisis, The Canadian Northern Ireland’, United Kingdom – Home Encyclopedia -Historica Dominion, at: http:// https://www.gov.uk/devolution-of- www.thecanadianencyclopedia.com/articles/ powers-to-scotland-wales-and-northern-ire- october-crisis, (Accessed on 06.09.2013). land#overviewOffice, at: , (Accessed on 09.09.2013). 159 The War Measures Act had been previously 174 R.Mawby and A.Wright, ‘Police Accountability used in occasions for defence of the country in the United Kingdom’, Commonwealth Hu- during the First World War and the Second man Rights Initiative, January 2005. World War. 160 Emergencies Act, R.S.C. 1985,c.22 (4th Supp.). Schedule by an order under Section 32, Section 17558 This of is the subject Local to Government any amendments Act 1972 made or to Sec theth 161 R.S.C. 1985 c22 (4 Supp). tion 17 of the Local Government Act 1992. 162 RCMP in Québec, ‘Our Services in Québec’, 176 Section 1(1) and (6) of the Police Reform Act - 2002. ed Police, at: http://www.rcmp-grc.gc.ca/ qc/services/services-eng.htmOfficial Website of the Royal Canadian (Accessed Mount on 06.09.2013). Metropolitan Police, at: http://content.met.po- 177lice.uk/Site/specialistoperations Specialist Operations, Official Website (Accessed of the on 163 RCMP in Ontario, ‘About the RCMP in Ontario’, 15.09.2013). - ed Police, at: http://www.rcmp-grc.gc.ca/on/ London Police, at: Officialabout-apropos/index-eng.htm Website of the Royal Canadian> (Accessed Mount on 178police.uk/CityPolice/About/About+the+force. ‘About the force’. Official Website of the City of 06.09.2013). htm (Accessed on 15.09.2013).http://www.cityoflondon. 164 RCMP in Ontario, ‘Programs and Services in 179 Schedule 5 of the Scotland Act 1998. - an Mounted Police, at: http://www.rcmp-grc. 180 Section 6 of Police and Fire Reform (Scotland) Ontario’,gc.ca/on/prog-serv/index-eng.htm Official Website of the Royal (Accessed Canadi Act 2012. on 07.09.2013). 181 Section 1,2 of the Police and Fire Reform (Scot- 165 Organisational Structure of RCMP, ‘National Se- land) Act 2012. 182 Section 5(2) of the Police and Fire Reform Website of the Royal Canadian Mounted Police, (Scotland) Act 2012. curityat (Accessed on 07.09.2013). land) Act 2012. 166 Security Offences Act ( R.S.C. , 1985, c. S-7). 184 Section 7(2) of the Police and Fire Reform 167 Section 6(1) of the Security Offences Act R.S.C., (Scotland) Act 2012. 1985, c.S-7. 185 Section 48 of the Police and Fire Reform (Scot- 168 R.S.C.,1985, c.S-7. land) Act 2012. 169 Section 2(a) of the Security Offences Act, R.S.C., 186 Section 17(1) of the Police and Fire Reform

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(Scotland) Act 2012. police.uk/index/about-us/police_museum/ history_of_policing.htm, (Accessed on 12th Sep- 187 ‘About Us’:Police Scotland, 2013, at: http:// tember 2013). www.scotland.police.uk/about-us/ (Accessed at 11.09.2013). 206 Ministry of Defence Police, at: http://www. mod.police.uk/About%20Us.html (Accessed 188 Section 1(1) and (4) of the Police (Northern on 10.09.2013). Ireland) Act 2000. 189 Section 33 of the Police (Northern Ireland) Act (MDP)’, Association of Police and Crime Com- 2000. 207missioners. APPC briefing, ‘The Ministry of Defence Police 190 Section 34 of the Police (Northern Ireland) Act 208 Section 1(2) of the Ministry of Defence Act 2000. 1987. 191 Section 20(1), (2) and (3) of the Police (North- 209 Section 2 of the Ministry of Defence Act 1987. ern Ireland) Act 2000. 210 Section 1(3) of the Ministry of Defence Act 192 Section 2(1) and (3) of the Police (Northern 1987. Ireland) Act 2000. 193 Section 3(3)(b)(ii) of the Police (Northern Ire- (MDP)’, Association of Police and Crime Com- land) Act 2000. 211missioners. APCC Briefing, ‘The Ministry of Defence Police 194 Section 34 of the Police (Northern Ireland) Act 2000. in the UK: A Brief Guide, Association of Chief 195 Section 51 of the Police (Northern Ireland) Act 212 Association of Chief Police Officers, Policing- 1998. Police Officers, Association of Chief Police Of 196 Part 1 of Schedule 3 of the Police (Northern 213 ficers (2012). Ireland) Act 1998. in the UK: A Brief Guide, Association of Chief 197 Part 7 of Schedule 3 of the Police (Northern Association of Chief Police Officers, Policing- Ireland) Act 1998. Police Officers, Association of Chief Police Of 214 Kim Wager, ‘The Role of the UKAEA Constabu- 198 Section 51 and 54 of the Police (Northern Ire- ficers(2012). land) Act 1998. lary in the UK’s nuclear security regime’, Euro- safe – Forum (2002). 199 Section 41(2) of the Police (Northern Ireland) Act 1998. 215 Section 1(1) of the Serious Organised Crime and Police Act 2005. 200 Section 1(1) of the Government of Ireland Act 1920. 216 Section 2(1) of the Serious Organised Crime and Police Act 2005. 201 Section 2 of the Government of Ireland Act 1920. 217 Section 3(1) of the Serious Organised Crime and Police Act 2005. 202 ‘Irish Republican Army’, National Consortium for the Study of Terrorism and Responses to 218 Section 2 Schedule 1 of the Serious Organised Terrorism, Available at: http://www.start. Crime and Police Act 2005. umd.edu/start/data_collections/tops/terror- 219 Local to Global : Reducing the Risk from Or- , (Accessed on 25.10.2013). ist_organisation_profile.asp?id=55 220 Section 1(2) of the Security Service Act 1989. 203 The RUC succeeded the Royal Irish Constab- ganised Crime, Home Office – UK (2011). ulary (RIC) in 1922, following the partition of 221 Section 1(4) of the Security Service 1989. Ireland. 222 Section 2(1) and 2) of the Security Service 204 ‘History - The Royal Ulster Constabulary’, Web- 1989. site of the The Royal Ulster Constabulary, at: 223 ‘Ministerial Oversight’, Security Service MI5, http://www.royalulsterconstabulary.org/his- at: https://www.mi5.gov.uk/home/about-us/ tory2.htm, (Accessed on 11th September 2013). how-mi5-is-governed/oversight/ministeri- 205 ‘A History of Policing in Ireland’, Police Ser- al-oversight.html, (Accessed on 15.09.2013). vice of Northern Ireland, at: http://www.psni. 224 Section 10 (1) of the Intelligence Services Act

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1994 and Section 2(1) of the Justice and Secu- 244 This Act repeals the Prevention of Terrorism rity Act 2013. Act 2005. 225 Section 59 of the Regulation of Investigatory 245 Section 2 of the Terrorism Prevention and In- Powers Act 2000. vestigation Measures Act 2011. 226 Section 1(2) of the Intelligence Services Act 1994. https://www.gov. 246uk/government/organisations/northern-ire Northern Ireland Office homepage, ‘What- 227 Section 1(1) of the Intelligence Services Act we do’, Home Office UK, at: , (Accessed at 1994. 14.09.2013). land-office/about#who-we-are - the British Army, at: http://www.army.mod. 228uk/agc/provost/23207.aspx ‘Royal Military Police’, Official (Accessed website onof 247https://www.gov.uk/government/policies/ Northern Ireland office, ‘Keeping North 15.09.2013). keeping-northern-ireland-safeern Ireland safe’, Home Office UK,(Accessed 2013 , at:on 14.09.2013). website of the British Army at: http://www. 248 Section 7(3) of the Security Service Act 19989. 229army.mod.uk/agc/provost/23207.aspx Royal Military Police, ‘Role of the RMP’, Official(Ac- cessed on 15.09.2013). 249 The Security Service has been responsible for national security intelligence work against 230 The 3 regional areas of responsibility are the Irish related terrorism in Great Britain since Northern region, Eastern region and Western 1992. region. 250 Security Service, The Security Service In 231 Royal Military Police Special Investigations Northern Ireland, Security Service MI5, at: Branch (United Kingdom), at: http://www. https://www.mi5.gov.uk/home/the-threats/ army.mod.uk/documents/general/proRmpU- terrorism/northern-ireland/the-security-ser- nit_sib(uk).pdf (Accessed on 15.09.2013). vice-in-northern-ireland.html, (Accessed on 232 Section 28(7) of the Scotland Act 1998. 14.09.2013). 233 Section B8 of Schedule 5 of the Scotland Act 251 Royal Military Police Special Investigations 1998. 234 Section 94(1) and (2) of the Government of British Army, at: http://www.army.mod.uk/ Branch (United Kingdom), Official Website of Wales Act 2006. documents/general/proRmpUnit_sib(uk).pdf, (Accessed on 15.09.2013). 235 Section 94(3) of the Government of Wales Act 2006. 252 Royal Military Police Special Investigations

236 Section 5(6) of the Northern Ireland Act 1998. British Army, at: http://www.army.mod.uk/ 237 Section 6(1) and (2) of the Northern Ireland documents/general/proRmpUnit_sib(uk).pdfBranch (United Kingdom), Official Website of, Act 1998. (Accessed on 15.09.2013). 238 Section 17 of Schedule 2 of the Northern Ire- 253 Section 54(1) and (2) of the Police Act 1996. land Act 1998. 254 Section 54(2B) of the Police Act 1996. 239 This Act repealed previous Acts relating to 255 Section 41 of the Police (Northern Ireland) Act terrorism such as the Prevention of Terrorism 1998. (Temporary Provisions Act) 1989, Northern Ireland (Emergency Provisions) Act 1996 and 256 HMIC, ‘Our Role : Inspecting policing in the Northern Ireland (Emergency Provisions) Act 1998. of Constabulary, at: http://www.hmic.gov. uk/about-us/what-we-do/public interest’, Her Majesty’s (Accessed Inspectorates on 240 Schedule 2 of the Terrorism Act 2000. 14.09.2013). 241 Section 3 of the Terrorism Act 2000. 257 Section 33(1) and (3) of the Police (Scotland) 242 Part VII of Terrorism Act 2000. Act 1967. 243 2011 Chapter 23.

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