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by D.A. Wijewardene

Sometime after the attainment of independence in Sri Lanka the Public Service Commission system in relation to the appointment and disciplinary control of Public officers came in for adverse comment. The P.S.C. as it was constituted then, was an independent institution, and this very fact of its independence was later held against it. It was said that this system may have been suitable during the Colonial form of government, when the functions of the State were of a limited nature, such as the collection of revenue and the maintenance of law and order in the Country.

The formation of an independent Public Service Commission (P.S.C.) is now imminent with the formation of the Constitutional Council. I think it is opportune at this moment to draw from my experience in an independent P.S.C many years ago and to recount here the many processes and changes that the P.S.C. went through in arriving at its present form. I believe this information as to the history of the present P.S.C. will prove very useful to the constitution makers in the formulation of a truly independent Public service Commission. As an Officer of the Ceylon Administrative Service then, I worked as an Assistant Secretary attached to the P.S.C. in the nineteen sixties and finally retired from that institution as its Secretary in 1980. Therefore I had the opportunity to witness the transformation of the P.S.C. through the years.

In the days gone by the P.S.C. was so free and unfettered of any political influence or intervention, that I know of only one such instance. This was the case of an Asst. Supdt. of Police who had been disciplinarily dealt with for some irregularity at a language proficiency examination. He was however a very efficient officer where his Police duties were concerned.

There was intervention here but of a very high order, in the form of the Prime Minister at the time meeting with the Chairman of the P.S.C. interceding on behalf of this Police Officer. No lesser politician would intervence in this manner then. The P.S.C.was considered sacrosanct.

Erosion of independence

The P.S.C. has lost this glamour and standing now. Intervention by the politicians, meaning minister or an MP in matters of appointment and disciplinary action against public officers has been legalised through the medium of the constitution.

In this situation we hear in the newspapers daily of public officers and more particularly police officers being accused that they have acted on occasions in violation of the Rule and the Law merely to please or at the behest of some politicians or other.

Some persons are reported to have enjoyed political patronage to such extent that they appear to have been above the law, and the law enforcing officers have thereby been rendered helpless and ineffective. I would say that this situation has been brought about to a large extent by the absence of an independent institution to manage the affairs of these public officers.

The Soulbury Constitution

The Institution that was responsible for all matters of appointment, transfers and discipline of public officers in the days gone by was the public Service Commission. This was an independent institution and promulgated under the Ceylon (Constitution) Order in Council, 1946 and named as the Soulbury Constitution. At section 58 (1) of this constitution it was laid down. "There shall be a Public service Commission which shall consist of three persons appointed by the Governor General".

And Section 60 (1) stated that; "The appointment, transfer, dismissal and disciplinary control of Public Officers is hereby vested in the Public Service Commission". It was also provided at Section 61 that the Public Service Commission may delegate any of the powers vested in the Commission to any public officer subject to such conditions as may be specified in the Delegation order.

P.S.C. criticise

Sometime after the attainment of independence in Sri Lanka the Public Service Commission system in relation to the appointment and disciplinary control of Public officers came in for adverse comment. The P.S.C. as it was constituted then, was an independent institution, and this very fact of its independence was later held against it. It was said that this system may have been suitable during the Colonial form of government, when the functions of the State were of a limited nature, such as the collection of revenue and the maintenance of law and order in the Country.

The Ministers of State who were now charged with greater responsibilities in the socio-economic development of the country, in addition to the earlier functions, contended that if they were to implement the progressive policies under an national government they should have the powers over the agents through whom they could implement these policies. Of course these agents were the public officers. So, in effect the contention now was that powers of appointment and disciplinary control of public officers be vested with the Ministers of State.

The Republican Constitution

With the promulgation of the Republican Constitution in 1972, the new thinking with regard to the management of public officers found expression. The Public Service Commission system was abolished and the Cabinet of Ministers was vested with all power over public officers, who were then designated as State Officers. Section 106 (1) of this Constitution stated:- "The Cabinet of Ministers shall be responsible for the appointment, transfer, dismissal and disciplinary control of State Officers and shall be answerable therefore to the National State Assembly". However the Cabinet could not be expected to exercise all these powers by itself.

The Constitution provided for delegation by the Cabinet. Accordingly, the Cabinet reserved to itself the powers in respect of the higher grades of Officers, meaning the Additional Secretaries, Senior Assistant Secretaries, the Government Agents and Heads of Departments, and the other powers were delegated to the ministers individually. The ministers in turn kept for themselves the powers in respect of Staff-Grade Officers and delegated the other powers with regard to non-staff grade officers to Heads of Departments and other officers below this rank, as provided in the Republican Constitution.

Under this constitution there were created two special institutions called the State Services Advisory Board and the State Services Disciplinary Board, of which I had the good fortune to be the Secretary. These two Boards performed advisory functions. The constitution laid down that the Cabinet or a Minister could make an order of appointment or of discipline only after receiving a recommendation of one of these Boards, the Advisory Board on appointments and the Disciplinary Board on a matter of discipline.

However the Cabinet or a Minister could act either accepting or rejecting such recommendation given by these Boards.

The Constitution

While the system of delegation under the Republican Constitution was in operation for sometime a cry was heard again that this system too was not satisfactory. The contention now was that a Minister of State was Primarily a politician and that therefore it was inevitable that a decision of such a person on matters of appointment and discipline of public officers, may be coloured with a certain amount of politics and therefore the Public Service Commission system that existed earlier be brought back.

In the Promulgation of the Constitution of the Democratic Socialist Republic of Sri Lanka in 1978 the Public Service Commission was re-constituted, but with a difference, the P.S.C. was created only as an institution subordinate to the Cabinet. It lost the independence that it enjoyed under the Soulbury Constitution.

The Cabinet was once again vested with the supreme powers of appointment and of disciplinary control of public officers. The Cabinet again reserved to itself powers in respect of the Higher Grades of Officers and all the other powers were delegated to the P.S.C. .

At the same time the Cabinet issued a directive to the P.S.C. that the P.S.C. should delegate all these powers to the Secretaries of Ministries and to Heads of Departments in regard to Staff Grade and Non-Staff Grade of Officers respectively. The P.S.C. thus was left with no original powers to act. This system was in operation for a long time till recently, when in 1993 the P.S.C. has withdrawn the powers issued to Secretaries and acts originally by itself in regard to Staff Grade Officers.

Three systems

Under the Soulbury Constitution the P.S.C., which was an independent institution, considered merit and seniority as the sole criteria that would govern the appointment and promotions of public officers. Political neutrality in the Official conduct of an officer was considered as a virtue.

The position changed with the Republican Constitution of 1972. Since the Cabinet collectively and the ministers individually were made responsible for the appointment and disciplinary control of Public Officers, politics crept into the Public Service. A Staff Officer (as a Public Officer was then referred to) had necessarily to align himself to some degree politically as well with the party in power to succeed in his career.

This position has been continued, though to a lesser degree under the present constitution, for the reason that ministers individually are not appointing or disciplinary authorities now, though they were so under the previous Constitution.

It is only the Cabinet of Ministers that is vested with these powers. The Public Service Commission that was abolished under the Republic Constitution has now been brought back, not as an independent body, but as a subordinate to the Cabinet of Ministers, under the Democratic Socialist Republic of Sri Lanka.

Personal experience

As an Assistant Secretary of the PSC in the nineteen sixties under the Soulbury Constitution it was our experience that it was only, very occasionally, if at all, that a public officer would proceed to act in defiance of any law or rule under some political persuasion, because they were answerable to a non political and independent Public Service Commission.

They would rather act in accordance with the Law or Rule even to the extent of earning the displeasure of a politician, because they were aware that in the matter of their promotions, transfers and disciplinary action the P.S.C. was the only deciding authority.

Ministerial intervention

It may then be questioned that if the Ministers were to give up the powers that they now enloy over public officers, how could they give effect to the policies and measures that Government wishes to adopt for the well-being of the public. Well if any such Public Officers is found wanting in any manner in the discharge of the functions and responsibilities entrusted to him by the Government, the Minister or the Member of Parliament concerned should resort to the expediency of reporting such officer to the P.S.C. who would then deal with the errant officer independently in terms of the governing rules and regulations, devoid of any politics.

In the above context we should rather proceed to correct the system than blame the officer. In the final analysis, having had the good fortune to serve continuously in these institutions through the three constitutions after independence, in the light of my experience gathered, it is my firm conviction that the independence of the P.S.C. should be restored in the interest of better governance, as already pledged by the new Government.

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