The history and functioning of the vast bureaucracy that is the public service has to be understood within the framework of the three Constitutions of Sri Lanka since independence. i.e, the Independence Constitution, the 1972 Constitution and the 1978 Constitution. The Independence Constitution provided for an independent Public Service Commission appointed by the Governor General. The Governor-General was also empowered to nominate one member as Chairman of the Commission. Under this Constitution, the executive arm of the Government functioned under the Prime Minister and the Cabinet of Ministers. While the formulation of Government policy was in the hands of the Cabinet, it was the duty of the public service to implement such policy decisions.
The 1972 Constitution retained the Constitutional Head of State (called the President). However, it brought the functions of the earlier Public Service Commission under the Cabinet of Ministers thus directly bringing the Public Service under the governing political party. It established a State Services Advisory Board which only had advisory functions. It also established a State Services Disciplinary Board. The administrative head of each Ministry; i.e., the Secretary, was subject to the direction and control of his Minister. Therefore the political neutrality of the public service was eroded with the aim of strengthening the executive arm of the Government.
1978 Constitution
The 1978 Constitution further strengthened the executive by establishing the elected executive presidency thereby discarding the non-political Head of State. Under this Constitution, the appointments to the constitutionally protected posts were made by the President. Under the 1978 Constitution, the appointment, transfer, disciplinary control and dismissal of public servants have been under the control of the Public Service Commission which held authority delegated by the Cabinet. In terms of Article 56 (1) of the Constitution prior to the 17th Amendment, it consisted of at least five members and was appointed for a period of five years.
Reducing the delegated powers of the Public Service Commission under Article 55 is the proviso which states that the Cabinet may delegate its power of transfer in respect of any category of officers as may be specified to any Minister and where there is such delegation the Public Service Commission ceases to exercise such powers in respect of such categories of officers.
Article 55(4) also vested with the Cabinet the task of formulating schemes of recruitment and promotion etc., and codes of conduct for public officers and the procedure for the exercise and delegation of powers of appointment, transfer, disciplinary control and dismissal of public officers. As provided in Article 56 the Cabinet was also vested with the power to alter, vary and rescind decisions of the Public Service Commission or any of its committees.
Another step in public administration was taken with the 13th Amendment to the Constitution when the Provincial Councils Act was passed in 1987. These enactments provided for a Provincial Public Service and Provincial Public Service Commissions appointed by the respective Governors of the Provinces. By the end of the 20th century, it was the common perception that the decline in the administration of the country was due to political interference. Successive governments have faced repeated accusations of not taking meaningful steps to deal with this malady promptly and effectively. In an attempt to put things right, the then Government introduced a draft of a revised Constitution in October in 1987 and later in August 2000. These drafts included specific provisions to deal with this matter. But unfortunately, this did not become a reality.
17th Amendment
The Seventeenth Amendment to this Constitution was introduced in October 2001 at a time when Sri Lanka was deeply embroiled in the ethnic conflict and functioned for decades under emergency rule. The Seventeenth Amendment was to serve as a break over arbitrary executive action in the control of the public service. It attempted to temper the sole power of the President in making appointments to high offices and the Commissions with a degree of Parliamentary control by way of recommendations. The Seventeenth Amendment introduced the requirement for the President to act on the recommendations of the Constitutional Council in appointing the Independent Commissions and the holders of constitutionally protected posts and the judges of the Supreme Court and the Court of Appeal.
The Constitution Council was not given the authority to directly make appointments to the Commissions or the above-mentioned posts. The Supreme Court (in its constitutional determination on the Seventeenth Amendment) opined that such authority would erode the power of the President so as to be inconsistent with Article 3 read with Article 4(b) of the Constitution. The Supreme Court also focused on the question as to whether subjecting the absolute discretion of the President to the recommendation and approval of the Constitutional Council would reduce the President’s power. The Court determined that such would not be the case. The first Constitutional Council adopted general criteria to ensure that persons appointed to the positions mentioned in the Seventeenth Amendment were impartial and independent and possessed moral uprightness and integrity.
The Public Service Commission (PSC) was one of the commissions that came under the purview of the 17th Amendment, perhaps with the hope that it would be able to insulate the public service from political influence and rescue it from the abyss into which it had fallen. The PSC under Article 54 (1) as amended by the 17th Amendment consisted of nine members appointed by the President on the recommendation of the Constitutional Council. Article 55(1) of the Constitution as amended by the 17th Amendment reads as follows: ‘the appointment, promotion, transfer, disciplinary control and dismissal of the 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 has become reality.
Article 55(3) which reads as follows negates this expectation: ‘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 shows that the Cabinet retains power over Heads of Departments. In other words despite the provisions of Article 55(1), the public service continues to be the grip of politicians who could manipulate it through Heads of Department.
A significant feature of the 17th Amendment which regards to public service personnel matters is the creation of a body called Administrative Appeals Tribunal with powers to hear appeals from decisions of the PSC and the Police Commission (17th Amendment, Articles (59) and 155L). The Administrative Appeals Tribunal was established under the provisions of the 17th Amendment by the Administrative Appeals Tribunal Act No 4 of 2002.
The Seventeenth Amendment ran into problems when the then President at the end of the term of office of the first Constitutional Council could not appoint one member. Following the failure to appoint the Constitutional Council the then President happened to make appointments directly to the Commissions and the high posts thus contravening the provisions of the Constitution. Moreover, the appointment of the Elections Commission ran into difficulty due to a difference of opinion between the President and the Constitutional Council.
18th Amendment
The Constitutional Council was abolished with the enactment of the Eighteenth Amendment to the Constitution in 2010. It effectively gave the President absolute power over the Commissions and through them the Public Service. The task of the Parliamentary Council established under the 18th Amendment was to make observations on the persons appointed by the President to the key Public Service posts and the various Commissions. Unlike the Constitutional Council which had to make recommendations, the Parliamentary Council had only to give its observations on the appointments made by the President. The President was free to accept or disregard such observations.
The Parliamentary Council was also expected to give its observations within two weeks of the President’s communication to the Speaker. Therefore the Parliamentary Council was far weaker than the Constitutional Council in its bearing on appointments to the Commissions and vital posts. The Parliamentary Council had also lost a good deal of its acceptance as the Leader of the Opposition (and his nominee) had refused to participate at its meetings.
Under this Amendment, the Cabinet of Ministers was vested with the power of deciding on policy relating to the appointment, promotion, transfer, disciplinary control and dismissal of public servants. Article 54(1) as amended by the Eighteenth Amendment also provided that the President shall have the power to appoint and remove the members of the Public Service Commission. In making the appointments the President was required to seek the observations of the Parliamentary Council. The Cabinet under the Seventeenth Amendment had to obtain the views of the Public Service Commission in dealing with Heads of Departments.
This requirement was removed by the Eighteenth Amendment. Therefore the President as the head of the Cabinet undoubtedly wielded enormous powers over the public service, bringing it under the direct political control.
19th Amendment - key changes
The significant features of the 19A include the reintroduction of the Constitutional Council and the repeal of the 18th Amendment.
* Reintroduction of the Constitutional Council and empowering the Commission
* Reduction of the tenure of the President and the Parliament
* Reintroduction of the two-term limit that a person can hold office as President.
* Ensuring the right of the public to access to information
* President to be responsible to Parliament
* Limitation of the number of Ministers, Non-Cabinet and Deputy Ministers
* Limitation of the power of President to dissolve the Parliament
* Prohibition of dual citizenship holders being elected to Parliament
* Removal of Immunity of President in regard to applications under Article 126
* Done away with urgent bills.
* Establishment of National Audit Service Commission and National Procurement Commission
*Defining National Government
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