An urgent need for a public service commission

The Island: Features: Dr. B. S. Wijeweera: The last PSC went out of office on 10 April 2009. For the past two years we have run the public service without the moderating influence of an independent apolitical institution to safeguard both the public interest and the interest of the community of public servants. Background to the PSC The origins of the PSC as an independent body lay in the recommendation of the Soulbury Commission to have a Commission of three persons of such integrity as to be immune from accusations of partisanship and to be capable of insulating the public service from political influence. This laudatory objective holds true even today, perhaps more so. Thus, the PSC became a permanent feature of our polity from the Soulbury Constitution onwards, except for that brief interregnum under the 1972 Constitution when it was felt that an independent PSC was not compatible with the constitutional doctrine of the Legislature being “the supreme instrument of state power”. The 1978 Constitution restored the PSC, but with the proviso that it can only exercise such powers that are delegated to it by the Cabinet of Ministers, which constitutionally was made the ultimate repository of all powers relating to the public service. The 17th Amendment (17A) passed in September 2001 made an important structural revision to the relationship between the Cabinet and the PSC. The Cabinet was vested with power only in respect of Heads of Department; in respect of all other officers (including Additional Secretaries in Ministries) the power of appointment, promotion, transfer and disciplinary control was vested in the PSC. This division of powers was carried over intact to the 18th Amendment (18A) that was passed in September 2010. There was one difference however. Earlier, under the 17A, the PSC could delegate to a Committee or to a public officer its powers over such categories of public officers as are specified by the PSC. Now, under the 18A, the Cabinet has to determine the respective we categories of public officers that will come under the purview of the authorities to whom the PSC has delegated its powers. Thus, the Cabinet has the leverage to dictate to the PSC the categories of public officers that should remain under its direct control, and the delegated authorities respectively. In summary, the current provisions in the Constitution, as jointly amended by the 17A and 18A, are sufficient to meet the twin objectives enunciated in the Soulbury Report provided competent persons are selected by the President to re-establish the PSC. Simplification of the Procedure The procedure outlined in the 18A is very simple. The President identifies suitable individuals for appointment and seeks the views of the Parliamentary Council (PC) that has already been established for such purpose. The PC has a majority in it that is favourable to the President; so an issue of obstruction will not arise. The PC has been given a period of one week to convey its observations in respect of the nominees proposed by the President. After receipt of such observations and a consideration of any new names that the PC may have recommended to the President, the President will finalize the names and make the appointments. Thus, under this procedure the President enjoys unfettered discretion. The new procedure is so simple and speedy that one is left wondering why even after six months of getting the 18A rushed through Parliament as an “Urgent – Bill”, the President has not re-established the PSC. This long period of two years without a proper PSC can undermine the morale of the public service and put in doubt government’s pronouncements on its commitment to principles of good governance. Two examples, one directly connected to the absence of a PSC and the other peripheral to it, are discussed below. The Fiasco of Recruitment to the Foreign Service The Foreign Service (FS) of the country, the members of which normally staff our Missions abroad, is regulated by t1he Foreign Service Minute (FSM), which is authorized by the Cabinet of Ministers. According to the current FSM there are three Grades in the service. Recruitment can take place only to Grade III; Grades II and I being promotional grades for career advancement. Usually, members of the FS are posted to man the different positions in our Missions abroad. However, over the years successive Governments have established a tradition of appointing outsiders to our Missions mainly on political considerations. All the same such appointees are contractual office-holders for a limited period of time (two to three years). They are not absorbed into the FS, whose members are exclusively career diplomats holding permanent and pensionable office. Recruitment to fill vacancies in Grade III shall be through an open competitive examination conducted by the Department of Examinations and prospective candidates have to be graduates within the age group 22 to 30 years. The stiff written examination consists of six papers carrying a total of 600 marks. Only candidates obtaining 40% in each paper and not less than 330 marks of the total 600 will be eligible to face the viva-voce which carries 100 marks. Persons will be selected strictly according to the aggregate of marks obtained both for the written papers and viva-voce. Most importantly the list of candidates and the marks obtained by each has to be published for general information. According to the FSM the Appointing Authority is the PSC, not the Cabinet of Ministers. Since there has been no PSC since April 2009 the Cabinet in November 2009 with the intention of filling the legal lacuna issued a circular through its Secretary under the title “Interim Measures for Establishment Matters Coming under the Public Service Commission”. According to this circular, until such time the PSC is re-constituted, the Appointing Authority in regard to recruitment to the FS will be the Secretary/External Affairs, not the Minister for External Affairs. In October 2010 applications were called for to fill vacancies in Grade III of the FS. The Examinations Department made necessary arrangements to hold the written examination in the early part of March 2011. Whilst this examination was in progress the Minister for External Affairs, on 08.03.2011, submitted a Cabinet Paper seeking the approval of the Cabinet to recruit ten persons named in the Paper to the permanent cadre of Grade III with effect from 01.04.2011. This was in clear violation of the transparent procedure stipulated in the FSM. It was also a serious violation of Section 2:7 of Chapter II of the Establishments Code which states that “the Scheme of Recruitment should not be changed to meet transitory problems such as any temporary shortage of persons”. What is more, it later transpired that two of the Minister’s nominees were children of Cabinet Ministers and another person his Coordinating Secretary. Never in the history of the FS has such a thing been attempted by any Foreign Minister. Now, the question arises why did the Minister, a very learned person with a reputation for expertise in Law, lend his signature to an atrocious Memorandum that is legally and morally indefensible? Only the future will provide a definite answer, but the Sunday Island Editorial of 20 March 2011 provided an astute observation that is very much to the point. To continue with the narrative, on 09 March 2011, the very day the Cabinet was expected to discuss the impugned Memorandum, Mr. Kalyananda Godage, a retired experienced diplomat with an abiding interest in preserving the integrity of the FS, blew the whistle and put the contents of the Memorandum into the public domain (Island, 09.03.2011). In the event, the Memorandum was not taken up at the Cabinet meeting and a few days later the Secretary to the President informed a newspaper that the President had put a stop to it and the matter was now over (Island, 15.03.2011). The matter is not over. There are systemic dysfunctions that need to be addressed. What would have been the situation if a PSC had been established before March 2011? If a PSC Was Functioning The PSC would be the Appointing Authority and any matter relating to an alleged urgent need to fill vacancies would have to be referred to it by the Secretary, External Affairs. No Foreign Secretary, trained in the traditions of the FS, would ever consent to bastardising the FS through back-door recruitment like what was proposed. Even if the Secretary had been forced to send a recommendation to the PSC, the latter would have given serious consideration to the prospect of being hauled up before the Supreme Court on a FR application. Cynics may yet argue that since the PSC members are beholden to the President for their appointments they may go along and face the consequencs. This ignores the reality that members will not necessarily be the dregs of society. Though loyal to the President, they will have sufficient respectability to avoid chastisement for political chicanery. On the balance, this fiasco would have been avoided if there was a PSC. The urgency for having a PSC cannot thus be overstated. Though not directly connected to the PSC a peripheral matter within the knowledge of the present writer needs to be explained. National Library Services Board The Library Services Board (LSB) draws its corporate status from the National Library and Documentation Services Board Act No. 51 of 1998. There are seven members (including the Chairman) appointed by the Minister for Education, and seven other ex-officio members including the Secretary/Education. One of the chief functions of the LSB, inter alia, is to promote the development of the library and documentation profession, a legal recognition of the existence of such a profession in this country. The Chairman of the LSB shall be the Accounting Officer in terms of parliamentary control of finances. It is stated in the said Act [Sec. 13(1)] that the Board shall appoint a Director-General who shall be the principal Executive Officer and Secretary to the Board. It is clear from this that his status is that of a member of the staff of the LSB who implements the decisions of the governing authority, the LSB. For the past one year or so, the Minister has failed to appoint the LSB, a dereliction of a statutory duty cast on him. In the absence of a Board, the day to day activities of the LSB are attended to by the D/G, under the supervision of the Secretary / Education. However, even in respect of the D/G there is controversy. He has not been appointed by the Board. He is an ex-Principal of D.S. Senanayake College appointed to the post of D/G by the Secretary / Education, may be in an acting capacity? The issue is whether he has the professional qualifications stipulated in the Scheme of Recruitment for the post of D/G? Even in the case of an acting appointment the Secretary is obliged in terms of the Establishment Code to select a person who has the stipulated qualifications (Sec. 1:7 of Chapter II). The Scheme of Recruitment for the post stipulates: a) A 1st or 2nd upper in a special degree or a 1st or 2nd upper in a general degree (plus a postgraduate diploma in Librarianship) b) After the PG diploma 10 years experience in librarianship or 15 years experience in librarianship after the first degree. c) A record of research and publications in library sciences. There is a proviso in the Scheme of Recruitment to permit the Board to appoint a person with skills eminently suitable for the post, though deficient in some of the requirements. It is not clear how the Secretary/Education came to appoint the present incumbent without even calling for applications. He certainly does not have the experience in librarianship. It is more doubtful that experience as a school principal endows a person with skills eminently suitable for the post. Fundamental Rights Concerns There are certain fundamental rights issues to be raised in respect of the two cases discussed above, When the Minister for External Affairs recommended the ten persons for recruitment was he violating the equality principle enshrined in Article 12 (1) of the Constitution in that other aspirants were made to sit a stiff competitive examination? Furthermore, after calling for applications was the “legitimate expectation” of the applicants infringed when ten persons were proposed for back door entry? In relation to the matter of the D/G of LSB, was the Secretary/Education violating the equality principle in dispensing with advertisement and picking one individual even if it is conceded that he had the power to appoint in terms of the “Interim Measures”Circular issued by the Cabinet. Furthermore, librarianship is a profession whose members look forward to the post of D/G as a coveted promotion, Was the “legitimate expectation” of these professionals infringed when an outsider was appointed as D/G? Conclusion What the above cases represent is the tip of the proverbial iceberg. Many such incidents are happening all the time under a shroud of secrecy. There is a general drift towards a state of anomie in which no norms or codes of behavioar are respected. The renowned 15th Century Sinhala poet, Vidagama Maithreya Thero, in his Buduguna Alankara described this situation beautifully. In verse 104 he explained: “rajun ademituvath, vethi methindoda epavath” which in paraphrase means “when the ruler violates the norm (dhamma) the courtiers follow suit”. The President ignores the constitutional duty cast on him by Article 28 (a) to appoint the Commissions specified in the Constitution. The Minister for External Affairs, in the absence of the PSC, attempts to smuggle in persons to the Foreign Service through the back door. The Minister for Education ignores his statutory obligation to constitute a proper Library Services Board and in the absence of such Board his Secretary makes an appointment that is violative of the spirit of the Scheme of Recruitment. This malady does not end here; it flows down to every nook and corner of the public service, down to the police OIC and Grama Sevaka till the entire administration is swamped in rootlessness. A constitutional duty to break this vicious spiral by appointing the stipulated Commissions lies solely and squarely with the President.