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The Public Service of Sri Lanka

Published Annual Report in the State of Human Rights in Sri Lanka, 2002

 

THE PUBLIC SERVICE OF SRI LANKA

 

                                                                                                 M.C. M. Iqbal*

Introduction

This chapter deals with the state of the public service during the year 2001 and examines the reasons that gave rise to the present pathetic state that signifies the public service of Sri Lanka.  It also discusses the historic developments in order to put the discussion in context as this is the first time that the public service is discussed in a State of Human Rights Report.  The measures that need to be taken to restore it to a position from where it could become the key arm of the State in ensuring good governance, are also discussed. In a democratic state good governance is the product of an efficient and effective administrative set up. Good governance seeks to ensure that there is accountability, transparency, respect for rule of law and protection of human rights in a democratic society.  It also pre-supposes the absence of any form of discrimination as discrimination prompts a breakdown in the rule of law and makes way for violations of human rights. It invariably follows that where there is an absence of good governance, a need to put in place mechanisms to protect the rights of people arises. Since the public service is an important arm of the State that seeks to ensure there is good governance, it follows that when the public service fails to perform, good governance becomes affected. Consequently, the rights of the people become jeopardized at the hands of the public service.  As a result, the public service becomes relevant for a discussion on human rights and has been included in this report for the first time.

 

Decisions of public officers in state institutions can have bearings on the fundamental rights of people and such decisions can, in turn, be subject to the fundamental rights jurisdiction of the Supreme Court. As is evident from the chapters on Judicial Protection of Human Rights over the years, most of the fundamental rights cases have related to administrative decisions which have been challenged under Article 12(1) of the Constitution  which deals with the equality  before the law and the equal  protection of the law.

 

2. The Historical Evolution, the Structure of the Service and its politicization

The public service in Sri Lanka has a long history.  It dates back to the times of ancient kings.[1]  During the time of British rule significant reforms were carried out to the existing structure in 1833 pursuant to the recommendations of the Colebrooke Commissioners and in 1928 to those of the Donoughmore Commissioners. When Ceylon became independent in 1948 the public service was brought under the Public Service Commission established on the recommendation of the Soulbury Commissioners.[2] Each Ministry had a Permanent Secretary who was responsible for helping the Minister to achieve the objectives of the Ministry and for the administration of the departments under the Ministry. Some Ministers wanted their pet projects to be given priority, disregarding the opinion of the Permanent Secretary on the feasibility of such projects. Some Permanent Secretaries acquiesced with such requests while others did not. This eventually led to friction between Ministers and their Permanent Secretaries. Uncooperative officials were gradually edged out by more amenable officials. It is a reflection of the appetite of politicians to gain control over bureaucratic decisions.  By Independence, this control was well underway as manifested in the appointment of Mr. Hema Basnayake, the then Attorney General, as the  Chief Justice,   the Prime Minister picking the electorates that should go to the polls on the first day of the General Elections of 1952, the appointment of a civilian as Inspector General of Police in 1956,  and the appointment of Mr. Ananda Tissa de Alwis as Permanent Secretary  in 1969. This trend of interference  grew with cancerous rapidity  spreading from Government to Ministers, to Members of Parliament to Provincial Councilors and a whole group of political hangers-on.   Eventually changes were made by the 1978 Constitution made the Cabinet responsible for the appointments of Heads of Departments and Secretaries to Ministries. This paved the way for the legitimization of political interference.   

 

 The British had designed the public service to facilitate the collection of revenue from the resources in the country. With the gaining of independence in 1948 the focus of the public service had to become development oriented. Public officers were apportioned to various ministries to assist in developing the country and providing services such as postal, rail transport, health care, irrigation etc., to the people. The Secretary to the Ministry was its administrative head. He also had to advise the Minister on policy planning. These Secretaries have Additional Secretaries, Deputy Secretaries, Assistant Secretaries and Heads of Departments who constitute the principal executive officers of the Ministry. They are also known as staff officers or gazetted officers. Most of the staff grade officers belong to the Sri Lanka Administrative Service (SLAS), or its parallel grades, such as the Sri Lanka Accountants’ Service, Sri Lanka Educational Administrative Service, etc.   The SLAS is the successor of the Ceylon Administrative Service (CAS) which succeeded the Ceylon Civil Service in 1963.

 

The kachcheri system of the colonial days continues to date with appropriate modifications. Government Agents who were earlier appointed on a provincial basis are now appointed on a district basis and are also known as District Secretaries. They are the principal administrative heads of the various districts with Additional Government Agents and Assistant Government Agents (also known as Divisional Secretaries), to assist them at the divisional level. These officers have a retinue of clerical and other allied grades to help them in serving the public.

 

With the adoption of the 13th Amendment to the Constitution in 1987[3] and the subsequent passing of the Provincial Councils Act,[4] the Public Service in Sri Lanka became bifurcated into the Public Service of the Central Government and the Provincial Public Service.  While the Cabinet continued to exercise its control over the public service of the Central Government, the Governors of the Provinces exercised authority over the provincial public service through the Provincial Public Service Commissions [5] which the Governors are authorized to appoint.[6]  While decentralization of the public service was a dire need, it led to the public officers in the provincial administration too falling into the clutches of the politicians of the provinces.

 

With the enactment of the 13th Amendment, Divisional Secretaries had to perform functions in a dual capacity: they had to serve the central government in respect of the subjects that have not been devolved to the provincial administration as well as attend to the devolved subjects under the authority of the Chief Secretaries of the Provinces and the Provincial Ministers. Although Divisional Secretaries are not under the purview of the Provincial Public Service Commission they are answerable to the Chief Secretary of the Province, in respect devolved subjects. This places the Divisional Secretary in a very dubious position, especially when the party in power in the province is different from the party in power at the centre. The same is true with regard to the Grama Niladharis (earlier known as Grama Sevakas)[7] - the grassroots level administrators - who also have to serve dual masters, the central and the provincial governments.

 

 

 

 

3. The State of the Service in 2001

The Constitutions that were adopted in 1972 and 1978 whittled down most of the powers and functions the Public Service Commission had under the Soulbury Constitution and vested them in the Cabinet. This dealt a deathblow to the independence of the Public Service Commission and the public service itself. The political masters eventually began to consider the public officers as their subordinates who had merely to abide by their biddings without question. When the first political appointment was made to a high position in the civil administration   in 1956, “it set in motion the disintegration of an independent, upright and incorruptible public service -- to be replaced by a sorry scheme of things in which top officials were seen scurrying after politicians for top jobs.”[8] Some of them found it more expedient and profitable to be their stooges. A few even stooped to the level of justifying pet projects of the politicians, knowing very well that such projects were not feasible and were doomed to fail. The nationalization of the road transport service which brought in the Ceylon Transport Board, is an example. This move  failed to bring in the expected benefits and the subsequent governments had to allow private buses to supplement  services of the Ceylon Transport Board.

 

Speaking at the debate in the Committee Stage of the budget in 1998, Professor Viswa Warnapala, the then Deputy Minister of Education and Higher Education referred to  problems in the public service as follows:

 

At Independence, Sri Lanka inherited a highly centralized administrative structure, which was in fact a colonial legacy, and this system of public administration required radical changes in keeping with the aspirations of an independent state.

 

The same old archaic methods and procedures were allowed to continue and modern methods and concepts were not injected into the system. This has resulted in bureaucratic lethargy, inefficiency, and a total failure in routine matters. [9] 

 

Secretaries to Ministries have a special place under the Constitution.[10] Since their appointment and removal is at the sole discretion of the President, they are generally compelled to be loyal to the party in power. Since the Secretary holds the highest position in the public service, he cannot aspire for any further promotions other than hope to be appointed to a statutory board or given a diplomatic posting after his retirement. The latter could become a reality only if he continues to be in the good books of the party in power and the Minister concerned. If he does not, he runs the risk not just of losing his position and being dumped into the 'pool' [11] but also foregoing his chance of securing a 'higher' position after his retirement. That is perhaps one of the reasons why so many public officers became ‘yes men’ of politicians during 2001 and the years preceding it. The release of official vehicles and other government resources to Ministers and Members of Parliament (MPs) during the general elections in December 2001 [12] was a typical example of the type of conduct resorted to by public officers.[13]

 

All public officers,[14] as they are now called, hold office at the pleasure of the State[15] and are subject to the provisions of the Constitution which confer the powers of appointment, transfer, dismissal and disciplinary control of public officers on the Cabinet of Minister.[16] The Constitution, however, provides for the delegation of these powers to the Public Service Commission (PSC) appointed under the provisions of Article 56(1) of the Constitution. The PSC has, in turn, delegated many of its powers to Secretaries of Ministries and Heads of Departments.[17] Secretaries of Ministries are appointed by the Cabinet from amongst the senior public officers. Of late, the choice has often fallen on not so much on the person most capable for the post but on the person most likely to be a 'yes sir' type or a favourite  of the Minister concerned.  However, until December 2001, the Secretary to the President had been the key decider.    Although such appointments have not yet been challenged in a court of law, the State Administrative Service Association,[18] had indicated its displeasure at such appointments. SASA had indicated its displeasure at a meeting it had with the Minister of Public Administration, sometime ago,when they met him at the Ministry. Despite this, there have been occasions when secretaries were chosen even from among persons who had never been in the public service.  There have been occasions on which retired public officers have been appointed as Secretaries to Ministries.[19]   Such appointees based on proven track record and not on patronage  have made good secretaries.

 

The situation became worse with politicking appointments to these posts where there was little evidence that capability, suitability, experience, qualifications and competence were taken into consideration. More often than not, officers who were not up to the mark  were appointed as Secretaries. The result was that over the years, many senior officials have become ill-equipped to hold these posts.[20]

 

The traditional view is that a state employee enjoys security of service while his counterpart in the private sector does not.  But when considering the legal safeguards available to the private sector employees, we see that they are protected against arbitrary termination of employment as they could obtain relief through labour tribunals.  The public servant does not enjoy such safeguards.20  Though public officers enjoy the legal right to continue in service till the age of 60 years those who fell foul had to face transfers to uncongenial stations and degrading positions that made them find it difficult to continue in service.  Relief through the fundamental rights jurisdiction of the Supreme Court is both expensive and is of not much use to many because of the time limitation and the cumbersome procedures involved.  The Human Rights Commission and the Ombudsman do not have adequate powers to provide speedy and effective relief in such instances. 

 

Article 55(5) of the Constitution is inimical and detrimental to the interests of public officers. It reads as follows -

 

Subject to the jurisdiction conferred on the Supreme Court[21]  no court or Tribunal shall have power or jurisdiction to inquire into, pronounce upon or in any manner call in question any order of the decision of the Cabinet or Ministers or Minister, the Public Service Commission, a Committee of the Public Service Commission, or of a public officer in regard to any matter concerning the appointment, transfer, dismissal or disciplinary control of a public officer.

 

Nevertheless, the Supreme Court has consistently held that it has jurisdiction over transfer, disciplinary control, dismissal etc., as the cases under Article 12(1) have shown.  The Court has also held consistently that reasons must be given for decisions even by Ministers and rules of natural justice must be followed.[22] Compliance with these requirements of the rules of natural justice is more the exception than the rule. It is not many public officers who could afford to resort to the judiciary to seek redress.

 

4. Efforts to Reform the Public Service

In 1969 the Ministry of Public Administration was established on the recommendation of a UN team of officials appointed by the Ministry of Finance with the concurrence of the then Prime Minister.[23]  It was hoped that the deterioration of the public service could be arrested with the establishment of this Ministry which now consists of three divisions - the Combined Services Division, the Administrative Reforms Division, and the Establishments Division. 

 

A perusal of the website of the Ministry of Public Administration [24] shows that the mission of this Ministry is to ensure an efficient and effective public service and a regional administrative system responsive to the aspirations of the people and the national priorities identified by the Government. The website lists the following as the objectives of the Ministry - 

  • Enhance the efficiency and effectiveness of the public service management and the regional administrative system.

 

  • Provide state services to the satisfaction of the public.

 

  • Empower the public service to achieve development objectives set out by the Government. 

 

5. The Effects of Reform

Despite these efforts to get the public service back to its pristine position there was no remarkable improvement in relation to its efficiency, effectiveness or integrity. The deterioration of the service continued and reached a peak in the year 2000 when President Chandrika Kumaratunga stepped in, in an effort to revamp the service.

 

In August 2000 the President appointed a Public Services Management Development Authority to ascertain the problems surrounding the public service and to make recommendations for its improvement. It was headed by a senior public officer with an equally senior officer as his deputy and a retinue of research officers.  The chairman of the Authority had to regularly report to the President of the progress made by the Authority.

 

During 2001 the Authority conducted a few surveys into the working of selected departments such as the Registrar General's Office, the Office of the Registrar of Persons and a few Divisional Secretaries' Offices.  Some of the officials of the Authority revealed that recommendations have been made to the Ministry of Public Administration for necessary action.[25]  According to these officers, the main problems of the public service are: the lack of accountability; the inadequacy of the knowledge of the subject the public officers are called upon to handle; the absence of effective supervision; lack of adequate motivation; and, above all, political interference.

 

The Authority was not established by an Act of Parliament. It could not make any effective changes on its own to justify its creation. Perhaps due to this reason, the staff of this authority has been absorbed into the Administrative Reforms Division of the Ministry of Public Administration .

 

Upon a recommendation of the Abeyratne Committee[26] a programme to train newly recruited clerical servants and officers of parallel services had been initiated.[27] During the year 2001, 700 such officers had been trained at the Sri Lanka Institute of Development Administration.

 

Despite these attempts to reform the public service, the same modes of bureaucratic controls and bureaucratic organisations continued resulting in the public service becoming authoritarian and distant from the public.

 

One of the government departments that is crippled as a result of manpower shortages and lack of resources is the postal department.[28] It is also reported that the General Post Office building was taken over for the President's Security Staff and the postal department was shifted to an inappropriate building further away, leading to congestion and poor working conditions which affected the output of the department. [29]

 

6. Instances of abuse of and by the public service

 There were innumerable instances of abuse of and by the public service during the year 2001. A few of them are cited below.

  

(a)   Abuse of government property

According to the Final Report of the Study of the Institute of Human Rights on the Abuse of Public Resources prior to the Parliamentary Elections of December 2001:

 

All public servants are governed by the Financial Regulations and any violations thereof result in serious disciplinary action taken against the public servants concerned. Equally the disciplinary codes of all public corporations and the provisions of the Finance Act guide all public corporations to protect public resources. However the abuse of public property takes place completely ignoring these rules and regulations. In addition to causing losses the discipline in the public sector completely collapsed in the face of these violations by those in authority.[30]

 

The most misused of the public resources during 2001 were vehicles belonging to state institutions most which were elections related. It has been reported to the Institute of Human Rights Programme for the Protection of Public Property that 433 vehicles belonging to state institutions had been used by the People's Alliance for election work [31] despite assurances by the President at public meetings  that it will not be done. According to another report over 1000 state owned vehicles were used by politicians of the PA Government are yet to be returned to the respective government institutions. The newly appointed Minister of Parliamentary Affairs who was quoted in the newspapers as having made this disclosure also said that a Government Parliamentary Group had appointed a committee to probe these irregularities.

 

Each one of these vehicles would have been in charge of a public officer who would have been responsible for its custody and maintenance. Technically, the Head of the Department to which these vehicles belonged is responsible for them. They have been either directly or indirectly a party to the misuse of these vehicles.

 

The same situation arose in relation to government residences. It was reported in the media that several such residences had been made available to politicians to be used as their election secretariats. One such building was the Ackland House now known as 'Visumpaya' which is reported to have been used as the residential election office of Mr. Arjuna Ranatunga, now a Member of Parliament for the Colombo District.[32]

 

(b)   Abuse of power or official position

The Director of Information, Mr. Ariya Rubasinghe, is alleged to have sent 72,000 election propaganda pamphlets by air to Jaffna for distribution among the security forces personnel.[33]  This again is another instance of the misuse of one's position to use state air transport to distribute ruling party's election propaganda material.

 

The media reported another instance of abuse of the public service, this time in the Ministry of Foreign Affairs at an interview for selection of personnel for the Foreign Service in year 2001.[34]  The report adds “The Public Service Commission has ordered fresh interviews after receiving a number of petitions against the interview held by the previous administration” alleging irregularities.[35]

 

In another instance concerning the Police Department, forty six Assistant Superintendents of Police (ASPs) filed action in the Supreme Court alleging that their fundamental rights had been violated by a decision of the former administration to promote 34 ASPs to the positions of Superintendents of Police.[36] 

 

The high-handed manner in which politicians wielded power is one of the main reasons that compelled public officers to indulge in or not take action against those who indulged in the abuse of authority or the misuse of resources of the State. Many Ministers and Deputy Ministers arbitrarily used their political power for their own gain including the misuse of State resources such as vehicles.

 

 

 

 

 

7. Accountability of public officers

Accountability is defined as the obligation of a person to offer satisfactory explanation to those who have a right to demand a satisfactory explanation.[37]  Justice Rehman of India defined accountability as “an obligation to reveal, explain and justify one's action. It is concomitant on responsibility. Without responsibility of some sort there cannot be accountability of any sort.”[38] If one looks at the extent to which abuse of authority by public officers took place during 2001, it would be patently clear that they had acted without any sense of accountability.

 

This opinion is further confirmed by the following comment in one of the leading newspapers:

The situation got out of hand in the last months of the last regime. What the press stated has now been confirmed and documented by the new government. However, criticisms of the last government's lack of accountability would not do much good, if the new government does not take meaningful steps to ensure that they themselves adhere to the principles of accountability. Those who come to office do not usually follow what they said when they were in the opposition. This in fact is the reason for the continuous erosion in accountability over the years.[39]

 

Public Officers have specific functions to perform in relation to their duties. To facilitate the performance of these functions, the state entrusts every officer with resources which they are required to hold in trust for the benefit of the public. It is the solemn duty of every public servant to use these resources diligently and for the purpose for which they were intended. If such resources had been abused, the public officer who was in charge of the resources is accountable. During the year 2001 there were several instances of public officers expending funds allocated to their ministries or departments, for purposes for which they were not intended. However, they were not held accountable for this abuse. 

 

With regard to employment issues in the public service during 2001, Kishali Pinto Jayawardena articulated as follows: "And though the extent to which accountability collapsed in public employment during the past several years is yet to be gauged in its true solemnity, we are now beginning to have revealing glimpses of this deterioration." [40]

 

Now that a change of government has taken place it would be worth finding out the degree to which public officers acted without the fear of being held accountable by initiating a probe into such activities. Such a step could be useful in acting as a deterrent to instances of this nature in the future and inhibit the culture of impunity that appears to have pervaded the public service, as in many other areas, in the performance of their duties.  

 

The basic principle of public accountability is that the peoples' representatives in Parliament must control the allocation and use of funds for the benefit of the public. One of the subtle ways in which the government had eroded public accountability in a constitutional manner is by not including actual expected expenditures in the budget, but by passing additional amounts through supplementary votes. The fact is that such supplementary votes are often rushed through Parliament, without a full dress debate as during budget debates. Often such supplementary estimates had been for large sums, rendering the scrutiny during budget debates meaningless. 

 

8. Judicial Review and the Public Service

In any democracy, besides the public officers, the citizens of the country should have the right and ability to question and challenge actions of administrative authorities. That would ensure that the state and the administrative authorities act judiciously and remain accountable for their actions. It has been said that “where ever there is power, there are excesses in the exercise of the power. Judicial review is one of the ways of controlling these excesses of power.”[41] 

 

Several judgments were delivered by the Supreme Court during the year 2001 in relation to cases which had been filed by victims of administrative actions alleging, inter alia, the violation of the principles of natural justice, the abuse of discretionary power and issuing of arbitrary orders. 

 

In the case of Jayawardena v. Dharani Wijayatilleke, Secretary Ministry of Justice and others[42] in respect of the services of a former co-operative inspector who later became an Inquirer into Sudden Deaths, Fernando J. stated as follows -

 

…….the Government Agent, Gampaha had been induced to call the petitioner for an interview, despite ineligibility, because of political pressure exerted on the Government Agent by a powerful Member of Parliament of the Government. 

 

Respect for the rule of law requires minimum standards of openness, fairness and accountability in administration, and this means - in relation to appointments to and removal from, offices involving power, functions and duties which are public in nature - that the process of making a decision should not be shrouded in secrecy.[43] 

 

In the case of Nandadasa v. M.S. Jayasinghe, Secretary, Ministry of Justice, Constitutional Affairs, et al [44] Fernando J., stated as follows:

 

It is common knowledge that various forms of bribery and corruption are rampant. Accordingly, everyone, and certainly officers of the Ministry of Justice, must endeavour to eradicate bribery and corruption, by every means - prevention, investigation, prosecution and punishment.

 

There have been a few cases in Sri Lanka where the courts have held that the administrators should provide or at least have valid reasons for the decisions they take. The Supreme Court has affirmed that natural justice requires that reasons be provided.[45] The Court has held that even if the individual is not entitled to reasons, the Court is entitled to demand reasons when the issue comes up during litigation.

 

In another case Justice H.W. Senanayake stated as follows:[46] “In my view public confidence in decision making process is enhanced by the knowledge that supportable reasons have to be given by those who exercise administrative power.”

 

In yet another case[47] the learned Judge stated as follows: “The actions of the public officers should be 'transparent' and they cannot make blank orders. The giving of reasons is one of the fundamentals of good administration.”

 

During the year 2001, as the case law shows, the public service of Sri Lanka in general and some of the Heads of Departments acted in violation of the principles enunciated in the decisions in the cases cited above. As the chapter on Judicial Protection of Human Rights has consistently shown over the years, despite court rulings laying down these important principles, violations by public officials have continued, as the sheer number of cases filed under Article 12(1) over the past few years has clearly shown.

 

9. The 17th Amendment to the Constitution

One important step taken during 2001 was the passing of the 17th Amendment to the Constitution by Parliament. It proposed  to establish, inter alia an independent Public Services Commission[48] (hereinafter “the Commission”). Public opinion and pressure exerted by concerned institutions and political parties during 2001 resulted in the 17th Amendment to the Constitution being passed during the last stages of the PA government. As to whether this measure would lead to a better public service would depend partly on the stature of those who will be appointed to this Commission and how independent they will be. It is hoped that all the communities would be adequately represented in this Commission by persons with integrity and determination to restore the lost image of the public service.

 

However, closer scrutiny of the provisions relating to the public service in the 17th  Amendment shows several anomalies. Article 55(1) of the Constitution now reads as follows: “The appointment, promotion, transfer, disciplinary control and dismissal of public officers shall be vested in the Commission.”

 

While on the face of this provision it would appear that the expectation of an independent Public Service Commission has become a reality, Article 55(3) still retains the powers of the Cabinet of Ministers.  Article 55(3) reads as follows:

Notwithstanding the provisions of paragraph 1 of this Article, the appointment, promotion, transfer, disciplinary control and dismissal of all Heads of Departments shall vest in the Cabinet of Ministers, who shall exercise such powers after ascertaining the views of the Commission.

 

This provision does give the impression that what was given with the right hand had been taken away with the left hand.  What is the use of having an independent Public Service Commission if it cannot exercise control over Heads of Departments and protect them from political maneuvers?  In other words, despite the provisions of Article 55(1), it would seem that the public service would continue to be the pawns of politicians.  If the words “with the concurrence of the Commission” had been used in Article 55(3) instead, this provision would have been of some significance.

 

The Provincial Councils Act No.42 of 1987 took away a large slice of the public service from the hands of the central government and placed it in the hands of provincial politicians. Article 55(2) of the 17th Amendment has re-iterated it.  Although this is in keeping with the devolution of powers under the 13th Amendment to the Constitution  it could have made provision for an independent Provincial Public Service Commission rather than place the provincial public service in the hands of a Provincial Public Service Commission which is an arm of the Provincial Governor who invariably is a partisan  individual, being  the representative of the President in the Province.

 

However, the true implications of the 17th amendment are yet to be seen and time will tell us whether we were successful in achieving an independent public service commission.  If the political will is there to do so, then discrepancies in the law would not be a problem.   Civil society institutions also have a role to play in this regard and should get actively involved in the reform of the public service and bring malpractices to the attention of the those in authority and particularly, the judiciary when necessary.

 

Conclusion

If the public service in Sri Lanka is to serve the purpose for which it was created, a more sincere and greater effort has to be made to rescue it from its present state.  As was pointed out earlier, one of the principal reasons for the state of the public service is incessant political interference. Besides this, the lack of proper training, dedication, attitudinal orientation, absence of adequate motivation and, last but not least, inadequate remuneration, are contributory factors.

 

Another measure that has been suggested to improve the public service is to link up the officers' prospects in the service to their performance in the various posts they held in the service. A flawless performance evaluation system has to be evolved by the proposed Public Service Commission. Recommendations from politicians should have no weight at all either for promotions or transfers.  Instances of misconduct should be dealt with swiftly and effectively by initiating prompt disciplinary proceedings. Politicians should be debarred from interfering in disciplinary proceedings.

 

A record of the skills and noteworthy performances of members of the public service, be it as administrators, disaster managers, engineers, medical personnel, surveyors, accountants, or even clerks and other grades of employees, must be taken note of. The recognition of merit in the performance of one's duties could motivate persons to excel in their respective fields.

 

Together with these changes, it is also necessary that the salaries of public officers be made more attractive. They should be adequately protected from the effects of inflation. Often the lower rung of the public service is prone to indulge in corrupt practices to make ends meet whilst those at the top indulge in it as an easy means of self-aggrandizement. The wage structure needs to be made attractive enough to draw in high quality personnel.

 

The possibility of extending the age of retirement to enable the services of capable public officers to be availed of by the State should be considered. This needs special consideration in view of the increase in the ageing population in Sri Lanka.

 

As part of the reform of the public service, voluntary retirement schemes, pension reform and treatment of government and private employees on equal footing are on the offing. Public sector reform through institutional strengthening and good governance is one of the terms of the agreement between Sri Lanka and the International Monetary Fund.[49]

 

The duplication of government institutions in the center and at the provinces consequent to the 13th Amendment to the Constitution, must be avoided. Therefore, there is an urgent need to rationalize and close down many such institutions. What the 13th Amendment sought to do was to devolve and not to duplicate.  The proliferation of ministers has also led to a series of negative outcomes such as splintering of sectoral responsibilities and development concerns, not to mention the huge drain on resources.

 

Sri Lanka is burdened with one of the largest public services in Asia. Therefore, the proposed reforms are of critical importance. The last attempt at such reform following the Report of the Administrative Reform Committee headed by Mr. Shelton Wanasinghe recommended a 'lean public service with a fat salary.' The miscalculated, infamous Public Administration Circular[50] in 1990 resulted in a large number of capable and competent public officers retiring from the public sector. It was mostly the experienced and the more capable who left hoping to join the private sector. This led to a further deterioration of the public service. It is, therefore, hoped that on the next attempt to rid the service of redundant staff, a properly devised voluntary retirement scheme would be implemented followed by a better wage structure and the provision of necessary resources to motivate those remaining in service to perform better. 

 

Nonetheless, whatever steps one may take to improve the public service, good governance would become a reality only if we have good governors as well as a vibrant civil society. Whether the general elections of December 2001 has brought forth good governors is yet to be seen. 

 

 



 

* Consultant, Law & Society Trust

 

 

1 F.A.Hayley., A Treatise on the Laws and Customs of the Sinhalese (1923) pp. 41, 43, 51  

[2]  The Ceylon (Constitution) Order-in-Council, 1947 as amended., Section 58,

[3] 13th Amendment to the Constitution, Article 154A.

[4] Section 32(1) of Act No.42 of 1987.

[5] Ibid, sections 32 & 33.

[6] Ibid.

[7] He was known as the village headman during the colonial days.

[8]  Editorial,  Sunday Times, 17.2.2002

[9]  Parliamentary Debates (Hansard) Vol121 No. 3 of 23.11.1998

[10]  Article 52 of Constitution of 1978.

[11] The pool is a place to which administrative service officers who had fallen foul with the government in power are dumped into and paid for doing nothing as no work is usually assigned to them. This means that such persons are a real burden on the tax payer!

[12] Report of the Committee on the abuse of Public Resources., Institute of Human Rights, 21.12.2001, p.8

[13] Other instances of abuse appear elsewhere in this article.

[14] Defined in Article 170 of the Constitution as:

   a person who holds any paid office under the Republic, other than a judicial officer but does not include -     (a) the President; (b) the Speaker; (c) a Minister; (d) a Member of the Judicial Service Commission; (e) a Member of the Public Service Commission; (f) a Deputy Minister; (g) a Member of Parliament; (h) the Secretary General of Parliament; (i) a Member of the President's staff; (j) a Member of the staff of the Secretary-General of Parliament;

[15] Article 55 (1) of the Constitution.

[16] Ibid.

[17] Article 58(1) provides for such delegation.

[18] It is a trade union of the Sri Lanka Administrative Service.

[19] The Cabinet’s appointment of the last Commissioner of Elections as the Secretary to the Ministry of Defence during the previous regime  is an example.

[20] M. Somasunderam, The Third Wave – Governance and Public Administration in Sri Lanka (1997) ICES publication, p.37.

20 D.P. Gankanda, How Secure is the Public Service, Daily News, 16.2.1996.

[21] Article 126 of the Constitution, para 1.

[22] Please see cases discussed in section on Law and the Public Service

[23] S. Nadarajah, Evolution of Administrative Reforms, The Third Wave, S.omasunderam. 1997  p.251.

[24] Website http://www.gov.lk/public/index.htm visited  in April, 2002..

[25]  The author learnt about it  from some officials of the Authority.

[26] Appointed by President Premadasa in the early 1990s to recommend ways of improving the public service.

[27] Hansard  Vol. 135  No.14  Column 2348

[28] Sunday Times, 3.2.2002, Mail Going Down the Drain by Nilika de Silva and Tania Fernando.

[29] ibid

[30] Ibid, para 6.3 at page 15.

[31] Editorial of the Daily News of 20.2.2002

[32] Final Report of the Study of the Institute of Human Rights on the Abuse of Public Resources, p.17

[33] Ibid p.31

[34] Daily News of 21.2.2002.

[35] ibid

[36] Editor’s Note: The Supreme Court held in February 2002 that fresh interviews must be held by the Police Department  The court ordered the first four of the 52 respondents viz - The Inspector General of Police, the Secretary to the Ministry of Defence, the former Secretary to the Ministry of Cultural Affairs, former Secretary to the Ministry of Posts and Telecommunication, and the Additional Secretary to the Ministry of Foreign Affairs – who were all members of the interview board,  to pay personally a part of the compensation.  The Court also debarred them from sitting in future interview boards constituted for this purpose and the Attorney General was directed to consider whether the 1st and the 4th respondents could be charged for having performed a corrupt practice within the meaning of the provisions of the Bribery Act or any other law. 

[37] Administrative Accountability  by Justice Rehman (1987) Mimico unpublished, Islamabad, quoted  by Somasunderam, supra, fn 16, p.375.

[38] ibid.

[39] Special Report by Sunday Times Economic Analysis, 24.2.2002   p. 10.

[40] Sunday Times, 24.2.2002, p.9

[41] Mario Gomez, Emerging Trends in Public Law (1998) page 2

[42]  1 SLR 2001 Part V 132 at 139 – per Fernando J.

[43] ibid 134

[44] 14  SLR  2001 at 25 -  Part I

[45] Karunadasa vs. Unique Gemstones, S.C. Minutes of 5.12.1996 – quoted  in Emerging Trends in Public Law,  Mario Gomez,  supra  fn 47  p.185

[46]. Kalawana Multi-purpose Co-operative Society Ltd. V. Co-operative Employees Commission,  C.A.Minutes  of 15.8.93 – Cited by Mario Gomez.  Supra at 189

[47].Unique Gemstones v. Karunadasa (1995) 2 SLR 357 (C.A)

[48] Article 41B of the 17th Amendment to the Constitution. See also Chapter     by Mr. Rukshana Nanayakkara, in this volume.

[49] IMF Sri Lanka Country Report No.1/71, Internet Edition, May 2001, quoted in Pravada Vol.7 No.  4 page 11, by M.Sarvananthan.

[50] No.44 of 1990.

 

 

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