Papers for discussion at opa annual sessions:

A Public Service for new century

In a democracy the people vest in a Government of their choice, the power of governance in trust. The people therefore have an inalienable right to good governance.

The efficiency, the quality and the ethics of governance of a country are mainly dependant on its public service. Although it is fashionable to stress on the importance of the private sector as the engine of growth, the role of the public sector, in facilitating the private sector to grow, providing essential services and impelling socio economic development of the country cannot be downplayed.

Today, the environment in which the public service has to function is changing rapidly. To meet the challenges of globalisation, privatisation and deregulation and the rising expectations of the community, the public service has to be made stronger and sharper.

The public service of the country is denied the opportunity to compete on the basis of quality, effectiveness and efficiency. The system does not reflect the calibre or the commitment of individual public servants. The emphasis in the public service is on the process and not on the outcome. There is no place for innovation and initiative in the service.

The single most destructive malady affecting the public service in the recent past has been the pervasive politicization of all levels of the public service. Public service has been manipulated by incompetent and selfish politicians to achieve narrow political goals and for personal gain.

The invisible hand of the politician has made the principle of accountability an illusion. Therefore accountability should be legally enforceable. Existing rules e.g. the Establishments Code, serve only as guidelines with no legal validity and are therefore not legally enforceable.

At the time of independence we had a public service which was on par with any public service in Asia. We had constitutional safeguards on the independence of the public service. The political culture and tradition at that time respected that arrangement.

But in the 1950s and the 60s the politicians made the public service an excuse for their failures and took the public service under their direct control. In the 1972 Constitution the Permanent Secretaries were made mere Secretaries of Ministries.

The powers of recruitment and even transfers were vested in the Cabinet of Ministers. This was not changed significantly in the 1978 Constitution either.

The underlying rationale for the introduction of 17th Amendment, which was initiated by the Organisation of Professional Associations, was de-politicization. But with regard to the Public Service Commission this was a disappointment as the appointment of Heads of Departments was retained with the Cabinet.

Although the undisputed task of a public servant is to serve the Public, with the mindset of politicizing the public service, the public servant was first designated as a government servant and thereafter a state officer, thus making the public servant a vassal of the Government in power.

The factual situation today is that the Secretaries and Heads of Departments are compelled to be a party to the politically motivated decisions of the Ministers and the of the party in power, which are often irregular and even illegal. Career advancement of a public servant today is less based on efficiency and integrity than on how good the person is in pleasing the political boss.

The entry in to the public service is still very competitive and only the better quality candidates gain admission to the service. But once they join the degenerate system they are enslaved by it. There is no space in the service for honesty, efficiency and independent thinking. Only the yes men and time servers survive and prosper.

Therefore it is essential that there is a systemic change in the public service. Such a change, a which cannot be distorted at the will and fancy of politicians, can be made only by the enactment of a Public Service Act. It has to be noted that most democratic countries have specific legislation on the role, values and functions of their public services.

In the above context the Organisation of Professional Associations has proposed the enactment of a Public Service Act with the object of

* Establishing an apolitical public service that is efficient and effective in serving the Government, the Parliament and the public,

* Providing a legal framework for the effective and fair employment and management of the service,

* Defining the powers and functions of the Public Service Commission, Secretaries to the Ministries and Heads of Departments and Agencies,

* Describing the relationship between the public servants and the political authorities,

* Stipulating the values and the ethics of the public service,

* Establishing the rights and obligations of public servants.

Defining the Minister - Public Servant Relationship is crucial to the smooth and efficient functioning of the Public Service. As there is no longer a dichotomy between Policy and Administration with the 1972 Constitutional provisions empowering the Political Executive to have virtual control over the higher echelons of the Public Service, the abject dependence of the higher officials in the Public Service on the Ministers has turned them into veritable lackeys of their political masters.

Ministers nowadays run not only their Ministries but also the Departments and Statutory bodies coming under them. Although the Secretary to the Ministry is designated the Chief Accounting Officer with legal accountability and responsibility for all the financial transactions in the Ministry, the Minister who usurps the powers and functions of the Secretary is not accountable or responsible for his actions except to Parliament.

With the majority that the Government commands in Parliament, such responsibility and accountability of the Minister has little meaning. It would be necessary therefore to make the required Constitutional amendments, taking away the direct authority and power the Political Executive enjoys at present, over Public Servants.

The Secretary to a Ministry should function as the Chief Administrative Officer of the Ministry in addition to serving, as at present, as the Chief Accounting Officer of the particular Ministry.

In these capacities, he would be responsible and accountable for a wide range of duties including advising on policy, implementation of policy programmes, Departmental management, overseeing the performance of Statutory Bodies and ensuring inter-departmental co-ordination.

His post carries a personal responsibility for the propriety and the regularity of the public finances he is responsible for. He should ensure the efficient and effective use of resources and the avoidance of waste and extravagance in the Departments and Statutory Bodies coming under his purview.

It would also be his prime responsibility to be supportive of the policy initiatives of the Minister as well as to take charge of the implementation of policy programmes of the Ministry.

It is hoped that these measures will give our public service the strength and the capacity to effectively meet the challenges of the new century and be a treasured asset to the nation.

Policy paper on Defence

1. A policy paper on Defence is a sine qua non for good governance. Its existence must be made known to the public once Parliament approves of it. It cannot be a party or government policy and it has to be a “National” Policy giving confidence to the nation that its security is ensured and not left to “ad hoc” decisions of those in power, which unfortunately has been the case, resulting in the chaotic situation prevailing today.

2. National Security common to any nation State, is Political Stability, Territorial Integrity, Social Justice and Economic Strength.

3. Defence Policy is required to determine the manner in which, without impoverishing the nation, Security Forces could be deployed to fulfil the requirements of National Security. The Armed Forces are an extension of the political will of the Government.

Today military thinking tends to be politico military and foreign affairs should be tailor-made accordingly. In short, the aim of our Defence Policy is to ensure that Sri Lanka enjoys peace and stability and Sri Lanka’s sovereignty and territorial integrity are protected.

4. Threats to National Security

a. Internal Threat Upto about 1983, those agitating against certain issues resorted to public demonstrations, strikes, hartals and unruly behaviour such as stone throwing; arson and looting. The most lethal weapons used were shot guns, pistols and a miscellany of improvised weapons. Their lethality was restricted and they were directed to selected targets. Today there is a proliferation of arms and lethal weapons, matching the weapons held and used by the State’s Armed Forces. This unfortunate state of the proliferation of arms and ammunition has occurred as a result of Sri Lanka not having a Defence Policy since 1957, leaving room for politicians and bureaucrats to make “unilateral” ad hoc decisions which had led to this build up of arms and ammunition illegally.

b. External Threats It is most unlikely that in this day and age that any foreign power wants to occupy a sovereign state, such as Sri Lanka unless Sri Lanka comes into the category of “failed states”. However, there is every possibility of some powerful states trying either to (a) use Sri Lanka’s ports and airfields for the furtherance of their objectives or (b) trying to capture these facilities for their own needs. This threat must be assessed and preventive action taken diplomatically or militarily.

c. Transnational Threats are numerous and include narco terrorism; money laundering; smuggling, credit card frauds; health hazards and many other hazards. Counter measures must be authorized by the National Security Council.

5. Management of Defence Matters There should be, at the apex, a National Security Council (NSC), legally constituted, comprising the following:-

a) Head of Government (Chairperson)

b) Leader of the Opposition

c) Ministers of Defence; Foreign Affairs; Finance (Permanent Members)

d) Any other Minister whose Ministry is affected by a Threat (eg. Labour; Fisheries etc.)

The above must be the decision makers and legal empowerment is necessary for their composition and executive decisions. At present the N.S.C.is constituted under emergency regulations and has a military bias, whereas National Security is not confined to military situations only.

The aspirations of the people, both individually and collectively, for a peaceful existence and freedom of movement should be the prime concern of the decision makers. This Council has to be served by a Secretariat established at the office of the Head of Government and also have a “Think Tank” to advise the Council.

The Principal Advisers to the Ministers’ concerned are their Ministry Secretaries; the Chairman of the Joint Chiefs of Staff Committee; the Service Chiefs (if a military situation is envisaged) and the Heads of Intelligence and Police.

6. Defence Council If Ministry action or deployment is envisaged the Defence Council comprising the Minister of Defence (Chairman), his Deputy Minister, the Chairman of the Joint Chiefs of Staff Committee, the three Service Chiefs, the Head of Intelligence and the Head of Police will be responsible for the allocation of human and material resources for the tasks envisaged.

The major subordinated operational commands should be (a) Land Forces Command and (b) Maritime Forces Command. The Commanders of these Forces will operate under the orders of the Joint Chiefs of Staff Committee. The Maritime Forces will be on perennial duty whereas Land Forces will be activated as and when required.

Other subjects covered by the Defence Policy paper are given below. They are explained in detail and will be available to the public. However, certain aspects are “classified” and should not be made public.

a) The Role of the Defence Forces

b) Doctrine and Training for Counter Insurgency

c) Maritime Surveillance-an integrated approach especially of the E.E.Z.

d) Air Defence

e) Communications

f) Logistics

g) Enlistment, Education and Career Planning of Officers

h) Service conditions of other ranks

i) National Service

j) Non Military Duties

k) Peace Keeping

l) Volunteer Forces

m) Women’s Services

n) Employment and Training of Insurgent Cadres

Organization of Professional Associations of Sri Lanka

Annuual Sessions 2007
“Sri Lankans Reawakening Sri Lanka as Paradise Isle”
September 14, 15 and 16 2007 at BMICH

“Cowardice asks the question: Is it safe? Expediency asks the question: Is it politic?. Vanity asks the question: Is it popular? But conscience asks the question: is it right? And there comes a time when one must take a position that is neither safe, nor politic, nor popular-but one must take it simply because it is right.”: Martin Luther King Jr.

In 1974, members of 11 Associations dedicated themselves to set up an Organisation to fill the void caused by the abolition of the Senate in 1972, by addressing National Issues affecting the Nation, devoid of party politics. In April 1975 the Organisation of Professional Associations (OPA) was established to, inter alia, “foster the participation by the Professions in all matters of National and Regional interest”.

Commencing in 1988, the OPA has held 19 Annual Sessions on matters of grave National Importance.

When she was granted “Independence” in 1948, Ceylon was a multi-racial, multi-linguistic, multi-religious and multi-cultural society where there was hardly any visible dissension between Ceylonese, based on such differences. The population of 12 million was administered by a Cabinet of 12 Ministers. In built Checks and Balances ensured Good Governance. The Judiciary held the scales even-without fear or favour. The debates in parliament were a treat to watch.

But, sadly after 59 years of “Independence,” all checks & Balances have either been dismantled or rendered ineffective, corruption is rampant, Good Governance is only talked about. Dissension between Linguistic, Racil Religious, Caste and even Family connections plagues this once - resplendent Isle. With a population of 20 million we now have 108 Ministers. The plunder or abuse of resources goes on, unabated.

The 20th Annual Sessions of the OPA is designed to galvanize “Sri Lankans to Reawaken Sri Lanka as Paradise Isle”. It will focus on a comprehensive and mutually consistent framework of policies for every sector of State activity and determine the goals that should be ideally pursued, by this and future governments.

The policies presented at the Annual Sessions on September 14th, 15th & 16th need to be so compelling that it would be difficult, if not impossible, for our elected representatives to disregard them.

This will only be a prelude to consistent and strenuous efforts to be made by the OPA, with the active support of the Business Community (aptly described as the engine of growth), Civil Society and, most importantly, the General Public, to restore sanity in governance at all levels.

The contribution made by the General Public will be critical in ensuring the implementation of these policies.

Questions and Answers

Purchase of Condominium Apartment

Question: At present I am living abroad but I Intend to purchase a flat in Colombo. How will I be able to know whether the title to the flat is clear? How are the condominium properties registered? What are the laws that govern condominium properties?

C. Wijeeweera - Melbourne, Australia.

Answer: Our advice to you is to be particulary careful in purchasing a condominium flat (apartment) in Sri Lanka as many who purchased such apartments are experiencing problem in obtaining the title deed. We suggest that you appoint a lawyer who only can check on all matters on your behalf.

The lawyer will first check with the land registry and the other relevant Departments regarding the registration of the condominium property. Often people pay advances and instalments towards Apartments in its development stage without a proper agreement. Once the Apartment is completed the developer hands over to the purchaser and moves out without following up on the registration of the apartments.

Therefore persons paying advances are advised to prepare a legal agreement and register it with the land registry. This way you have a legal hold on the Developer. If you are purchasing a completed apartment make sure that it has already been registered and that the deeds are available.

Your lawyer can do all this for you. The laws that govern the condominium property are; Apartment Ownership Amendment Act No. 39 of 2003 and Apartment Ownership (Special Provision) Act No. 27 of 2002 which deals with the management and maintenance of Condo Apartments.

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Postal Stamp rates for ordinary citizens

Question: I with to obtain a clarification of the new postal rates that have been introduced recently. I am an individual not engaged in any business. Please let me know the postage for an ordinary letter addressed by me to a Commercial Establishment such as a Bank/Financial Institution etc. I am not certain whether it should be Rs. 5 or Rs. 15.

J. Peiris - Colombo

Answer: Any individual who is corresponding in his personal capacity and not as a Company or Organisation of Business or otherwise can use a Rs. 5 stamp to post any inland letters that do not exceed the stipulated weight of 30 grms.

Whether your letter is to a commercial establishment such as a bank/financial institution etc. or to another Private individual you can use a Rs. 5 stamp. However, if you are writing to a Business Organisation etc., you are advised to write as “from” your name and address if you are using a Rs. 5 stamp. This is to ensure to the postal authorities that it is a letter being sent by an individual.

The Rs. 15 stamp is applicable to letters sent by Commercial establishment as well as other Organisations including voluntary Organisations and for letters not exceeding a weight of 30 grms.

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Bank of Ceylon Customer Pension Scheme

Question: I refer to your response in the Daily News of 17.5.07 in respect to monitoring of schemes and prizes offered by the Banks. As requested by you I wrote to the Financial Ombudsman as per copy forwarded on 19.07.07.

Regarding the Bank of Ceylon, Pettah Branch, not honouring their promise to pay a sum of Rs. 5,000 as pension for having contributed Rs. 250 per month for 20 years. Instead they are paying me only Rs. 2,446 a shortfall of Rs. 2,554. I sought the assistance of Legal Aid Commission. I also wrote to the Consumer Affairs Authority who called me for a meeting but I could not attend as I am disabled.

However, they had directed the Bank of Ceylon Customer Service Manager to meet me but he was unable to trace the scheme offer hand out dated 16.3.1981 from their archives. Please suggest a way forward and in order to stop deception of Depositos by banks and other financial institutions. There is a need to establish a “Janatha Chinthanaya” to ensure the delivery of people satisfying service.

Lionel F. W. Ponniah, FCMA (UK) BPRC, Colombo 13

Answer: You could have sent a Representative on your behalf to the Consumer Affairs Authority meeting. We did contact the Office of the Financial Ombudsman who are in receipt of your letter and have written to the Bank of Ceylon.

They will now send a reminder to the Bank and Institute and inquiry where both parties have to be present. Since you are disabled they will accept a Representative on your behalf, except that your Representative cannot be a Lawyer. Ensure that your representative is well briefed and carries all the relevant documents with him or her to this inquiry.

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Charging Turnover tax on VAT

Question: We refer to our letter on the above subject which appeared in your “Daily News OPA at Your Service” page on 05/04/2007 and wish to enquire what the response/ruling you had from Cashian Herath, Secretary, Ministry of Provincial Council and Local Government?

We have spoken both to G. Wasantha Nimalsiri, Secretary, Finance, Western Province and to The Revenue Commissioner Western Province, who both said that it was wrong to collect Turnover Tax on VAT but do not want to take any action to rectify it, since it will be a loss of revenue to the Provincial Council.

This matter is urgent because the Revenue Commissioner has now seized all our bank accounts pending settlement of our Turnover Tax payment on VAT and request your opinion as to what to do?

Further, The Commissioner-General of Inland Revenue has published an advertisement in the Daily News paper of 2/08/2007 that all arrears of Taxes including Turnover Tax could be paid without penalty if paid before 30/06/2007 but The Revenue Commissioner of the Western Province is refusing to accept this saying that she is not bound by the Commissioner-General of Inland Revenue’s advertisement - is it correct?

If we are to pay Turnover Tax on VAT as requested to get the seizure of our bank accounts removed, could we get a refund and or where could we claim/set-off this excess payment of Turnover Tax?

Thanking you for your kind and urgent attention on the above matter.

R.F. Joseph, Managing Director, International Hardware Stores Limited, Colombo 12

Answer: The OPA is also aware of this problem as this matter was brought to our notice previously as well. Our advice to you is to “Comply and Complain”. You have to immediately pay the Turnover Tax on the VAT component to the Western Provincial Council in order to get your bank account released enabling you to continue with you business.

We understand that all the Provincial Councils are collecting Turnover Tax on the VAT component as well and all concerned are paying this. The Commissioner General of Inland Revenue has no Jurisdiction over the Provincial Councils and any amnesty given by him is not applicable to the Provincial Council.

You will not get a refund either even if an agreement is reached with the Provincial Council not to charge Turnover Tax on VAT. Every Authority agrees that it amounts to double taxation and it is wrong on Principle.

However the interpretation of the Provincial Council Turnover Tax clause is causing the problem. We have requested the Institute of Taxation who are already looking into this to expedite necessary action. This Institute is expected to be enroled as a member of the OPA soon.

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Model Divisional Secretariat Officer

Question: According to a news item published in the SLIDA News letter of June 2007 Thimbirigasyaya Divisional Secretariat Office has been upgraded as a Model Divisional Secretariat.

I have applied for a copy of my Marriage Certificate almost three weeks ago, to this Model Divisional Secretariat Office but regret that I have so far not received the copy although a stamped envelope (Rs.40) too was handed over with the application.

Further I noted that this office closes for one hour for lunch. Is it the practice of Government Depts. to close for lunch, and what is meant by a Model Secretariat Office.

M. de Silva - Dodanduwa

Answer: According to sources in the Ministry of Home Affairs all Divisional Secretariat Offices are to be upgraded to be a Model Office. This concept has been advocated by the present. Minister of Public Administration and Home Affairs to give the lead for other Government Offices to follow. It has been specially designed to give an efficient and prompt service to the public.

According to them there could not be a delay in providing a copy of the Marriage Certificate if proper details have been given.

According to the same sources a Government Department cannot be closed for one hour on account of lunch. The staff are entitled to half an hour lunch interval and during this period a skeleton staff should be in attendance to look after the needs of the public.