By Austin Fernando –
Austin Fernando
I wrote an article under the tittle NPC- “Driving” Or “Driven” To “Failure Of Administrative Machinery”? on 20th April this year. It was due to the messy events that were taking place in the Northern Provincial Council due to lack of understanding of due processes, precedence, experience etc and ongoing political manipulations. I observed such during a short visit to Jaffna with my friends Late Professor Emeritus Ranjith Amerasinghe and Attorney Jayampathy Wickramaratne, PC.
The issues ended up in Supreme Courts as a Fundamental Application filed against the Chief Minister by the Chief Secretary. The determination was to be declared on the July 30th, but has been rescheduled for next Monday (August 4th 2014).
As a person interested in devolution of power or sharing power, I am awaiting the text of the determination. My reproduction of the article is to open space for readers to review the stances of the parties in the light of the determination with experiences we have had as public officers of yester years, in addition to how we interpreted the law as administrators.
Both legal luminaries for the Chief Minister and Chief Secretary being seasoned attorneys would have dealt with the case using some or many of the material I have placed in the article and even more due to their vast knowledge on Administrative and Constitutional Law. It could be even none used as administrative thinking does not necessarily click with legal thinking. Of course, if some valid point I raised in the article which would have been pertinent for argument had not been used, it may certainly frustrate the defaulter as after-thought. It is a pity if that happens.
Finally, I repeat what I have written at the end of this quoted article.
“Even a bad law can be worked positively if those who implement it are good or humane. Even the best of law could be worked badly or negatively if the persons who implement it are anti-human or bad”.
It is a good lesson to everyone in the Northern Provincial Council and I wish this status is well echoed everywhere in the State establishments for sake of reconciliation. Unfortunately what we observed as negative may remain even after the court determination if the parties remain to be “anti-human and bad”! It will be known only after a fresh exploration.
NPC- “Driving” Or “Driven” To “Failure Of Administrative Machinery”?
As Secretaries we have worked with Ministers with different attitudes, behaviors, outlooks etc., and had differed opinions. But, I have not heard any Secretary challenging his Minister in Courts on fundamental rights (FRs), like a brave Chief Secretary (CS) who had done so recently.
I have no access to this case brief. Hence, this writing has no relevance to the case. Nevertheless, media reports indicate the case originated due to administrative arrangements recently introduced in the Northern Provincial Council (NPC). Reportedly, they include the CS’s appointment and the Chief Minister’s (CM) attempts to displace the incumbent.
Though the latter issue has become a ‘Yarlpanam Battle of Pride’, soberly looked at, the crux is political; lack of mutual understanding of systems, precedence and ethics on hierarchical administration. Basically, all stakeholders seem divorced from them and standard legal / administrative practices.
Let me briefly discuss some of them.
Channels of communication
One issue is CS’s direct official dealings with the Governor and with institutions outside NPC.
In public service, hierarchy guides communication channels, i.e. the junior to senior, finally reaching the top. Hierarchy is traditionally reflected in the Protocol List. In it the Governor is 6th, CM 7th (equal to Non-Cabinet Ministers) and CS 20th. Within institutions it fits to an organizational chart. It does not mean informal channels are non-existent.
More importantly, President’s Secretary’s note 30/27 dated June 22nd 1988 has formally placed a CS at an equal salary with a Cabinet Ministry Secretary, insinuating equal hierarchical status. It demands from the former, pursuing standard communication channels.
Secretaries (par with CSs) are bound by the Establishment Code (EC). As per amended Minute on Secretaries (1-10-2010), provisions of the Minute of Secretaries gains precedence when in conflict with government regulations- i.e. EC. Through EC XXVII- 3:1 a CS is bound by Minister’s directions and control. This is further elucidated in EC XVII 4:1, which stipulates that the policies and directions of the Minister (There had been Cabinet Ministers, Non-Cabinet Ministers, State Ministers, and Project Ministers working through Secretaries.) conveyed by a Secretary have to be executed by Heads of a Departments (HODs), upon conveyance by the Secretary. Hence, a CM is the conduit for a CS to formally reach higher echelons. For HODs CS is the conduit to reach CM.
Additionally, a CS should constitutionally abide by Article 52 (2), i.e. ministerial direction and control. This, with the above referred Minute on Secretaries halt juniors formally accessing political superiors and CMs formally accessing juniors behind CS’s back. Thus the most benefitted is the CS. When an administration non-supportive of a government in power administers a PC, hierarchical routes could be ignored by authorities on either side of the divide.
Constitutionally, Article 154B (11) dictates the CM to “communicate to the Governor of the Province all decisions of the affairs of the Province and proposals for legislation”, “furnish information”, and not the CS or Ministers. If the channel breaks down, a Governor can rightly question a CM for not obliging the law and castigate the CS for doing CM’s task!
According to complaints made, in the Eastern PC and NPC the Constitution works in the opposite direction! The CMs have become non-entities! In southern PCs CM is “The Man” because political homogeneity exists between the center and periphery. This comparison may be the cause for NPC CM allegedly demands the removal of the CS, and the CS seeking legal redress. Will these be the correct solutions? Or, will courtesy/ ethic demanding the CS and CM to mutually retain favorable communication be the answer?
This required balance was maintained in the Southern and Central PCs, when Amarasiri Dodangoda and WMPB Dissanayake were CMs and their political opponents controlled the Center. Sans disrespect to the current incumbents, the Governors, CMs and CSs then proved their administrative adjustability- especially the CSs positively linking the opponents.
Advance Travel Program
It appears that the CM wishes approving CS’s Advance Travel Program (ATP) and expects CS to approve the senior officers’ ATPs. The latter is covered under EC under XXVIII-2:1, and need not be repeated by the CM. There were no EC stipulations for Secretaries to submit ATPs to Ministers, but the Minister or CM was always kept posted of our official/ personal travel. It was ethic, show of respect and understanding between the bureaucrat and Minister.
ATPs give the cue to officers’ leave. If the CM wished overlooking officers’ leave, inclusive of the CS, he should have referred to EC XII-2 for officers and HODs and for the CS referred to Item 7 of the Minute on Secretaries (6-8-1979). According to the latter, with prior approval of the Minister (=CM), the President approves leave for a Secretary (=CS), exceeding 14 days and foreign leave; not the Governor. The CM is the authority to approve shorter leave of a CS; not the Governor. It is unfortunate that these existing remedies have not been considered by the CM/ CS. The Governor, probably totally unaware, or being aware, but for trouble-shooting would have maintained stoic silence.
I would even recommend the CS’s ATP being sent to the Governor, facilitating him to brief the Presidential Secretariat, if required. However, such references should not be tools in the hands of a Governor (serving during the pleasure of the President) to undermine the elected CM, unless the government is pleased ‘conspiring’/ contemplating and accumulating information to act under Article 154K and 154L- i.e. Failure of Administrative Machinery.
It may be the CM is driving the Government to act harshly, to prove lacking government interest to solve the national question. The latter befits the existing international quandary.
It could be both ways.
However, the internal issues should be sorted out in-house, led by Governor with CM, CS and Provincial Secretaries, until common political thinking is established. I wish the amiable President’s Secretary will think hard of such solutions, though difficult to implement due to massive blown up egos and invisible politics. When egos are maladjusted damaged relationships remain as long as the tenure of office.
Appointments
It appears that the CM wants total control on all appointments through prior BOMs approvals. One may object such intervention interpreting usurpation of powers of the Provincial Public Service Commission (PPSC) or Public Service Commission (PSC) or Governor. If so, these affected could have challenged CM’s action. But the challenger is the CS, who is mentioned only once in Part IV (Section 31) – PCs Act (i.e. CS’s appointment).
Can the issue be psychological? It could be due to maladjustment problems for the Governor created by ‘Governor’s Rule’ ceasing. For the CS it could be moving away from the power center, due to the intermediary CM. For the CM the Governor and CS are opposing destabilizing political power cohorts, undercutting his authority. For all three ‘officials’ the common retarding factor is POWER, POWER and POWER, which none wishes to shed, not only due to personal conflicts, but probably more to ‘please’ extraneous political compulsions. It is the bitterest truth!
From the standpoint of a CM, control of appointments could ensure NPC’s financial controls, for which the BOMs is constitutionally accountable. If uncontrolled, the Auditor General’s Reports will reveal “unsolicited proposal” appointments. Such revelations will be proof of ‘failure of administrative machinery’ motivating application of constitutional remedies under Article 154K and 154L.
Article 154L is more dangerous as the President can decide that the PC administrative machinery has failed based on “a report from the Governor of the Province” or being “satisfied otherwise.” This is why NPC should be careful not to give ammunition by provocations or refraining from fruitful activities (e.g. Statute making, institutional development etc.), thus motivating the President to justify acting under 154L.
Constitutionally it is not only the CS, but even the Governor should abide by the BOMs decisions, as stipulated in Article 154B (8) (d) and 154F (1). Further, PCs Act stipulates the Governor to as far as practicable, follow the schemes of recruitment and codes of conduct prescribed for corresponding officers in the public service [Section 32(3)]. The Governor should abide by this legal stance. These controls were to shatter any attempt by Governors/ CMs/ CSs from becoming ‘Almighties’. Though controls are a must these issues should not have gone beyond the PC precincts.
Transfers
Another issue in the NPC was transferring Provincial Secretaries without BOMs’ request. This has precedence in the Central PC. Provincial Secretaries are appointed according to Presidential Secretariat instructions (i.e. 30/27 of June 22nd 1988) giving power to the PCs to recommend them. Thus transfers also should be on PC’s request. In the FR Application 657/98 (Central PC case) the petitioners would have argued on this basis. In this case the Governor, Secretary Public Administration, Attorney General agreeing to permit the status quo to remain meant admittance of this established process.
Though the PPSC is for delegated establishment matters, it should not detrimentally act against devolution or destabilizing a PC administration. While a systematic transfer methodology is welcome, I cannot understand the reported two year time stipulation by the CM for transfers. However, if the BOMs is sidelined it cannot legally manage PC affairs.
In the absence of a PC in the North the administrative vacuum was filled by “Governor’s Orders”/ “Governor’s Memos”, but post-NPC to adhere to Article 154F (1) for transfer to normalcy is essential. I believe Section 32 / PC Act is the cue to establish mechanisms, institutions and communication between tri-partite stakeholders- the Governor, CM and CS. If they become divorcees from the common objectives of devolution, final blame will accrue on the government. It will inauspiciously prove government’s reluctance / resistance to devolve— appropriately for CM, not for President.
Chief Secretaries Minute
There may be issues genuinely affecting personal / official stakes of a CS. Unfortunately there is no Provincial CS’s Minute, though drafting was expected in 1988. Hence, CSs are equalized to Cabinet Ministry Secretaries and Provincial Ministry Secretaries to Ministry Additional Secretaries [vide: President Secretary’s outline dated June 8th 1988- items 2, 3 (v)].
To my knowledge once CM (Central Province) (WMPB Dissanayake) disagreed with President Chandrika Kumaratunga on the appointment of a CS. However, finally the President’s appointee (KB Sirisena) managed the Central PC sans hitches. CM Amarasiri Dodangoda (Southern PC) did not demand the transfer of incumbent CS (Albert Ratnayaka). This status is disrupted in NPC for political, official and personal reasons. Therefore, comparison or generalized actions is inappropriate, though some argue in favor.
Due to these complexities the need for a new ‘Minute on Chief Secretaries’ emerges.
Law of the land
Law is not everything in administration or relationship building. My two-day experience (end January 2014) observing the officials’ behavior convinced me that the inter-relationships between Governor and CM, as well some Secretaries and CM are wrecked, while between the Governor and CS inter-relationships have flourished. Incidentally I sensed senior officials/ advisors and politicians trying to fish in polluted troubled waters! Thence I foresaw a court case!
The law on appointment of CSs is clear. The President is empowered under Section 31 / PCs Act to make a CS’s appointment with CM’s “concurrence”. With such appointment, the interim arrangement of Governor’s Rule (except for discretionary provisions) should dissolve, and the “concurrence” is to facilitate such. The Governor cannot have a legal and formal say on the CS appointment and the CM‘s involvement is limited to “concurrence”. Under such circumstances continuance of the incumbent CS is President’s decision, not the CM’s / Governor’s. Please mind “formal say”.
Dismissal and disciplinary control of a Secretary are operative under presidential orders “exercised through the Secretary to the President” (See Gazette Extraordinary 1564/4 of August 26th 2008). Thus it nullifies the Public Service Commission’s (PSC) disciplinary powers on Sri Lanka Administrative Service (SLAS) officers appointed as Secretaries. The PSC’s disciplinary process is replaced by an inquiry by “a suitable person or a committee comprising suitable persons.” Hence Secretaries cannot fall back on SLAS or other service origins.
The Governor has no formal responsibility/ power for CS’s appointment, or for disciplinary action. CM may report to the President against a CS, not the Governor. Governor has responsibility for appointment of Provincial Secretaries (Vide: President’s Secretary’s note 30/27 dated June 22nd 1988), and, others through the PPSC (Section 32 of the PCs etc.). A CS is subjected to “the direction and control of his Minister” (Gazette Extra-Ordinary 48/2 of August 6th 1979 and Article 52 (2) of the Constitution). The natural tendency to hang on to (“torch-bearing!”) high-powered authority by non-elected “officers” may sometimes motivate them to ignore these stipulations.
In the East the incumbent Governor eventfully controls the administration of the PC. He is softly challenged because the PC and the Government have same political origin. In the NPC issues are coming to a head on collision. In Southern PCs cordiality remains. It is all politics!
SLAS and CS appointment
Media reported a promise made by President to shift the CS and later annulled, reasoning the SLAS Association (SASA) had objected. One may argue back on this stance on:
Firstly, Presidential Secretariat instructions are that Secretaries when appointed “will cease to be officers of their respective services, e.g. SLAS”. The Constitution Article 52 (4) proviso says that Secretaries are deemed “temporarily released” from their service, if they were in the Government, Local Government or Corporation service immediately prior to appointment as Secretary. This applies to CSs from SLAS origin.
Hence to hang on to SLAS / PSC/ MPA by any Service when appointed as a Secretary lacks logic. I was once a SASA President and when I was “sacked” from a Secretary’s post by President Kumaratunga I did not canvass SASA generosity because I was not entitled, since I had shed the SLAS mantle. SASA was not charitable to object either. For NPC’s CS SASA generosity oozed! I believe it is not due to any external pressure.
Surprisingly, there was a news report where even the Minister of Home Affairs has said that the NPC CS has acted with responsibility based on the guidelines of the SLAS. I am wondering how he ignored the above mentioned practices, rules and legal stances.
Secondly, taking shelter on a professional Association may not impress genuine stakeholders (except the government). To substantiate, I quote: “Furthermore, it might be noted that partisanship pervades the social and economic structures of the country. The press, business and professional associations, educational institutions, the Buddhist sangha and other religious bodies, and to an increasing extent the bureaucracy all reveal strong partisan tendencies or cleavages. ” (Page 169 –Trade Unions and Politics in Ceylon – Robert N Kearney). This is applicable 100% after 43 years of writing! Doesn’t SASA “reveal partisan tendencies or cleavages” as a “professional association”? Kearney is repeated in 2014.
Thirdly, as Chief Justice GPS de Silva in Supreme Court Appeals 41 and 42/96 said, “If a power is given by statute, and the statute lays down the way the power is to be brought into existence, it must be brought into existence by that method and none other.” It is a better principle to adhere.
Lastly, if required to support the CS one could argue that “concurrence” is required at an original appointment and not midway. An election need not compulsorily change a CS, unless other political requirements demand such, e.g. political reconciliation. Appointment of a CS should not be on political grounds, but in Sri Lanka even marriages are politicized!
Conclusion
I consider the emerging status not as an isolated administrative issue in a PC. I foresee risk.
Please revert to CM Wigneswaran who wished for removal of misunderstandings and doubts in various communities and prayed for a facilitated journey for unity between two communities when CM’s oath was administered on him. Few weeks ago his soberness had vanished when he delivered the Bernard Soysa Commemoration Speech, and alleged that the Government was showing no interest to solve the National Issue. With a dose of exaggeration, he reflected closing upon Ananthy Sashidharan! Probably it was exhibiting his manifested frustration over PC administration and collapsing expectations. The President also must be frustrated and even angered when he heard such.
A friend once quipped “Even a bad law can be worked positively if those who implement it are good or humane. Even the best of law could be worked badly or negatively if the persons who implement it are anti-human or bad”. A good lesson for all authorities.
This demands authorities to find out of the box solutions which are available, if looked around. Is the Government willing to explore and change? Are the NPC and CM genuinely willing to share reconciliation? Is the bureaucracy (Governor/ CS) willing to cooperate? Do the parties ‘drive’ or ‘driven’ to act under Article 154L? If the stakeholders are unprepared to be positive they can look forward for more negative troubles than less.
This is the risk I foresee.
Park / August 1, 2014
Whether the Chief Secretary or the Chief Minister should or should not follow the rules that governs the Ministers and Ministerial Secretaries need not apply to Provincial Councils. As per the 13th Amendment Provincial Councils are separate entities and the powers in the 13th Amendment should be given fully to the Provincial Councils. If this does not happen then the President is in violation of the Constitution.
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J.Thavarajah / August 1, 2014
A very analytical and exhaustive essay by an able and distinguished onetime Secretary to a Ministry at the centre.Mr.Austin Fernando had also authored the book My Tummy is White based on his experience during his stint as Secy./Defence.
This is the first time a CS.has gone to courts against a CM.Ofcourse there is a hand prodding her.Win or Lose she has burnt her boat.
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Thiru / August 1, 2014
Park,
The president and the government are violating so many laws in various fields, violating the 13th freakin amendment is nothing.
The so-called intellectuals go on analyzing in isolation, ignoring all these blatant violations.
These analysts are hypocrites with no ethical values, or persons colluding with the regime and its modus operandi.
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Austin Fernando / August 1, 2014
Dear Thiru
Congratulations for being the first person who has found me in the group of hypocrites, who has lost ethics, collude with the regime and its modus operendi.
This is not what even the NPC Chief Minister Hon CV Wigneswaran or his able Attorney Hon MA Sumanthiran MP or TNA Leader Hon R Sampanthan MP or even the President of Sri Lanka HE Mahinda Rajapaksa would say, because all of them know me well enough. People have called many a name but not a hypocrite, man who has lost ethics. Had I colluded with the regime I would have been elsewhere, not only a pensioner.
Please read the factual presentation here and review the judgment when it is determined rather than to shoot the messenger! If anything is wrong please point out as I am not an all-knowing Pandit!
Little knowledge of facts and persons is very devastating, Sir/ Madam!
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Dr.Rajasingham Narendran / August 1, 2014
A civilised and much needed rebuke. Comment should be free with regard to subject matter, but within bounds of civilised discourse, when relating to individuals.
Dr.RN
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Austin Fernando / August 1, 2014
Thanks Dr Narendran for your soothing comment.
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Thiru / August 1, 2014
Dr.Rajasingham,
The subject matter is the law, whether it be the 13th amendment, or the many important laws violated with impunity by the Mara junta.
Civilized discourse doesn’t mean, ignoring violation of laws is civilized. What are the people who keep quiet about when laws are violated left, right and centre?
If one calls Mahinda, or Gota mass murderers, is it not civilized? They even call Tony Blair a war criminal in Britain and a massmurderer.
Civilized behavior doesn’t mean scratching each others back when crying needs go ignored. When many Tamil women are raped with impunity by the armed forces, here we are arguing about the 13th amnedment.
Thiru
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Good Boy / August 2, 2014
Thiru
You are a habitual attacker and reflect your prejudices all over the place in the Colombo Telegraph. You stray from the subject matter and go around the bush and attack writers with the hate mindset.
Austin Fernando is not the only one you attempted to scandalise-scores of other writers in the Colombo Telegraph.
You need serious thinking to review your methodology of behaving like a bull in the china shop. You must be getting some form of thrill or excitement equivalent to orgasm by discharging personal anger against writers without knowing them.
Such an inward attitude must change and hope you will contribute in a positive manner in the future.
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Thiru / August 2, 2014
Good Boy,
Like a good boy please read Charles Sarvan’s current article in the CT: You will get the gist of what my views are. He is also a learned professor.
People have different views, that may appear prejudice to you, but it may be the truth: For example how many of you and your kind deny that massacre of Tamils took place in Mullivaaikkaal, while from the evidence exposed by Channel 4 and others I believe genocide of Tamils took place; you might call it my prejudice.
Truth of what happened during the war when exposed irritates a lot of people in denial. You must look at the big picture not the trivial detail or side shows.
This Northern provincial council legal drama is enacted to side track serious issues of Tamils in the North and East: Issues of live, death, disappearnce, confiscation of the peoples’ lands, taking away the means of living by the army and the Southern Sinhalese, raping of Tamils including children by the military and many more grievances of Tamils against the rulers and their agents.
Ignoring all these atrocities on you want us to forget all these to discuss the subject; the NP CM and his secretary’s legal battle. With a pliant judiciary supportive of the lawless regime the judgement to the detriment of Tamils is a foregone conclusion to Tamils.
I don’t know whether you are one of those ardent supporters of the Mara junta, but definitely you are entitled to your views: You call yourself Good Boy, good and bad are relative terms; what is good for the Palestinians is bad for the Israelis.
if you are for the establishment, well and good for you and enjoy life and the perks while the Tamils suffer, I have nothing to say to you, because you are prejudiced already.
/
Chandra Amerasekare / August 2, 2014
Criticism could be made, but not at the cost of insulting an honest and an upright man. Mr. Austin Fernando had been one of the few CAS officers who could be admired as a sincere officer without a bloated ego. If he was like many others without a backbone and self respect , he would be drawing aa salary and not a pension. today.
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truth / August 1, 2014
Everyone is Sri Lanka knows, If you had not colluded with the regime, what would have happened to you! There is no hope for Sri Lanka as long as educated people remain silent!
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Austin Fernando / August 1, 2014
Dear ‘truth’
I have not colluded with the regime, having known almost all the seniors in it. I have not collided either. My age does not permit me to either collide or collude with the regime! Touch wood,nothing adverse to complain has happened to me from the regime or from those opposing it. I have not gained by being so too.
My writing as in the article proves that I do not belong to the silent educated.
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Thiru / August 1, 2014
Exactly truth,
instead educated people argue about unimportant things. They don’t see or hear the suffering the Tamil people in the North and East undergo.
Is it not hypocrisy? Or is it civilized to watch when humanity is trampled under the jack boots of the forces?
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Anpu / August 2, 2014
“If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.” Desmond Tutu
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Thiru / August 1, 2014
Dear Austin Fernando,
My point is simply that of a layman:
What is the point of arguing about the finer nuances of the virtually impotent 13th amendment when several important laws (I hope you don’t expect me to list them) are flouted with impunity by your excellency and his government?
One should attack the glaring important lawlessness of this regime, which affects Tamils and the minorities disproportionately, but vast majority of the population is also affected.
I would think it is hypocritical to argue about the technicalities of laws when the spirit of law is violated, and it is evident to everybody.
Law violating regimes can do anything they want, that’s what they are doing. First get the lawless regime to respect and uphold the laws.
Thiru
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aratai / August 1, 2014
.
“…I would think it is hypocritical to argue about the technicalities of laws when the spirit of law is violated, and it is evident to everybody….”
Well said.
:-)
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kabi / August 1, 2014
The devolution of power to Provincial councils is such that a PC cannot appoint its own Chief Secretary. Why TNA hung on to this worthless Provincial Council?. Why don’t they all resign saying the council cannot function smoothly without power.
The Government has used this opportunity – It shows to International Community that they have hold the elections for NPC and hides the military rule in the North & East
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radish.S / August 1, 2014
The S.L. President implements the Constitution selectively.He never wanted to have the NPC Elections but was forced to do it.Although elections were held and a democratically elected Council is in place with the best of Members compared to other Provincial Councils he wants the administration to continue under the Retired Army General who is a suspected war criminal who is using the Chief Secretary Mrs.Ramesh, widow of an Inspector of Police from Trincomalee to obstruct the smooth functioning of the NPC. The fact that he has appointed Chandrasri as the Governor again shows his intention and no doubt he needs him if a Presidential election is held in the near future.Meanwhile sexual abuse of poor young girls from the North by men from the Armed Forces goes unabated as it happened recently in Karainagar and his Prime Minister justifies it by saying it is happening everywhere in the world including India. Yes we know 100 Sri Lankan Army men were sent back from serving in the UN Forces in Haiti for exactly the same sexual offence. Absence of criticism from our academics and intellectuals over what happened in Karainagar is disgraceful.
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Bensen Burner / August 1, 2014
It is no surprise that the CS coming from a Tamil family renowned for traditionally betraying the Tamil people in recent years with the support and backing of Sinhala chauvinists and their lawyers has been able challenge the Chief Minister. Not that this action was wrong or bad in law but this was quite unnecessary when a settlement through discussion was within reach in the interests of the welfare of the people of the northern province. Her action evidently was to curry favour with the ruling clique. Bensen
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Austin Fernando / August 1, 2014
I agree with: “Not that this action was wrong or bad in law but this was quite unnecessary when a settlement through discussion was within reach in the interests of the welfare of the people of the northern province.”
Rest in your comment is personal for which I am not privy.
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Selvam / August 2, 2014
You talk rubbish Bensen. Sivathasan was right about you. The Chief Secretary asserted her rights and stood for herself which is better than those who kiss ass and meekly submit. The Chief Minister has simply not delivered. What has he done since assuming office. The Tamil diaspora was right about the fact that he was over rated.
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Selvam / August 2, 2014
You talk rubbish Bensen. Sivathasan was right about you.
The Chief Secretary asserted her rights and stood for herself which is better than those who kiss ass and meekly submit.
The Chief Minister has simply not delivered. What has he done since assuming office. The Tamil diaspora was right about the fact that he was over-rated. A man with capacity would have delivered something by now – not 140 resolutions alone.
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Selvam / August 2, 2014
You talk rubbish Bensen. Sivathasan was right about you.
The Chief Secretary asserted her rights and stood for herself as an SLAS officer which is better than those who kiss ass and meekly submit to the powers that be.
The Chief Minister has simply not delivered. What has he done since assuming office? The Tamil diaspora was right about the fact that he was over-rated. A man with capacity would have delivered something by now. He has not passed a single legislative enactment, not a single development project. Its just sterile rhetoric as exemplified by 140 odd resolutions. No wonder Modi refuses to meet him!
You are evidently ill informed or biased to the core.
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Sri / August 1, 2014
Austin Fernando,,
You should have been called before the courts to give an expert evidence,but nobody bothered to do so!
I want to give your opinion on the following two issues that arises from your article.
I refer to 154 B -11 of the Constitution of Sri Lanka where it is stipulated
“It shall be the duty of the Chief Minister of every Province
(a) to communicate to the Governor of the Province all decisions of the Board of Ministers relating to the administration of the affairs of the Province and the proposals for legislation
(b) to furnish such information relating to the administration of the affairs of the Province and proposals foe legislation as the Governor may call for”
This means that the administration of the Provincial Council in terms of the constitution is by the Chief Minister and the Board of Ministers and not by the Governor and therefore all the officers of the Provincial Councils including the Chief secretary have to work with the Chief Minister and the Board of Ministers.
The Chief minister in order to carry out the administration of the Provincial council has no alternative, but to ensure that the leave of the Chief Secretary within the country or outside the island as well as her advance travel programme need his prior approval.
Now regarding the provision in the Act No 42 that the appointment of the Chief secretary is by the President with the concurrence of the Chief Minister.
Why the concurrence of the Chief Minster and not that of a Governor is stipulated in the constitution?.
It is because Chief Minister is responsible for the administration of the Provincial Council and the Chief Minister could run the Provincial council only with the aid and advice of a Chief Secretary, Hence the concurrence.
A proper interpretation of the spirit of he constitution reveals that whether original or midway, the concurrence of the Chief Minister is an absolute necessity.
Further the present Chief Secretary of the NPC was not appointed with the concurrence of any Chief Minister at all .
Hence the midway argument will be untenable
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Austin Feranndo / August 1, 2014
Dear Sri
Humbly I say that I am no expert, but only, just only a former practitioner! There are many more experts in the government and around the President, NPC (around the CM and the Governor) and TNA, and especially in the media and legal fraternity, who are extreme Pundits on devolution and practice.
To respond to your queries I may say this.
(1) I have referred to Article 154 B -11. I said:
“Constitutionally, Article 154B (11) dictates the CM to “communicate to the Governor of the Province all decisions of the affairs of the Province and proposals for legislation”, “furnish information”, and not the CS or Ministers. If the channel breaks down, a Governor can rightly question a CM for not obliging the law and castigate the CS for doing CM’s task!”
This is what you say in different words.
(2) The leave issue also has been dealt with me in the article
“If the CM wished overlooking officers’ leave, inclusive of the CS, he should have referred to EC XII-2 for officers and HODs and for the CS referred to Item 7 of the Minute on Secretaries (6-8-1979). According to the latter, with prior approval of the Minister (=CM), the President approves leave for a Secretary (=CS), exceeding 14 days and foreign leave; not the Governor. The CM is the authority to approve shorter leave of a CS; not the Governor. It is unfortunate that these existing remedies have not been considered by the CM/ CS.”
Really if the CM without drafting a new circular just quoted the references I had made plus any other relevant points, the CS would have thought twice before challenging the CM on Fundamental Rights, even with the hardest pressure brought on her.
(3) You say “Further the present Chief Secretary of the NPC was not appointed with the concurrence of any Chief Minister at all”
I maintain the authority to appoint the CS finally lies in the hands of the President with CM’s concurrence. Please see the following in my article.
“The law on appointment of CSs is clear. The President is empowered under Section 31 / PCs Act to make a CS’s appointment with CM’s “concurrence”. With such appointment, the interim arrangement of Governor’s Rule (except for discretionary provisions) should dissolve, and the “concurrence” is to facilitate such. The Governor cannot have a legal and formal say on the CS appointment and the CM‘s involvement is limited to “concurrence”. Under such circumstances continuance of the incumbent CS is President’s decision, not the CM’s / Governor’s. Please mind “formal say”.
Since there was a political change it would have been better appreciated if the President sought the concurrence of the CM, going by the quote I have made from Chief Justice GPS de Silva in a different case situation related to PCs. I quote it.
“ Thirdly, as Chief Justice GPS de Silva in Supreme Court Appeals 41 and 42/96 said, “If a power is given by statute, and the statute lays down the way the power is to be brought into existence, it must be brought into existence by that method and none other.” It is a better principle to adhere.”
But, NPC is dealing with an Executive President, who politically differs, and who is a sharp political creature!
As a final prayer I think the current case determination would explain and clarify these issues and more so that there will be legal reference hereafter if similar questions arise in the future. That is why I expected review of the situation after the determination.
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gamini / August 1, 2014
My perception of all the so called educated in this country, one way or another have no scruples whatsoever and have on many occasions justified the wrong, for personal benefit or for publicity in the eyes of the masses, to display their erudition. Be it Lakshman Kadiragarmar, G.L.Peris, Sarath N Silva, Shiranee Bandaranayake, Mohan Peris or anyone else without exception, including this Austin Fernando. In comparison there are many, not so educated in this society who have better morals, scruples and a sense of commitment.
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Native Vedda / August 1, 2014
gamini
“In comparison there are many, not so educated in this society who have better morals, scruples and a sense of commitment.”
Would you mind if I wholeheartedly agree with you?
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truth / August 1, 2014
I think there is no point in arguing who is right or who is wrong. The top people in power does not want the Tamils to prosper. They simply want to kill, maim, disappear as many as possible,land grabbing etc. but at the same time want to show the world that Sri Lanka is a functioning democracy!! They held the election in the North and East just to show the world. Unfortunately for them, TNA won with a majority despite all the unlawful practices by the Government during the election and after. Now they want the NPC to be mouth piece of the Government, to be silent on the slow genocide which is going against the minorities in Sri Lanka!! It is simple as that. This has been happening slowly since independence. This Government has exceeded all the previous governments and has no qualms about doing any criminal activities to remain in power!! They want the people in uniform to carry out their agenda!!
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Waran / August 2, 2014
truth, I totally agree with your sentiments that have been exposed in your comment. Not many Tamils would open up with their thoughts and feelings on their rights as equal citizens being denied for the past 58 years. They fear that they may offend their Sinhalese friends if they speak the truth. I agree that Sinhalese people should now begin to understand Tamil people’s genuine predicament under successive racist governments, starting from SWRD. Mr Austin Fernando has clearly outline the administrative procedure within applicable legislatures. I thank him for this. Will he now start educating his fellow men and women to be more civil towards all minorities who had made Srilanka as their home. Undo the Mahavamsa Mind set and help with the nation building agenda. Hope he would also agree that most Sinhala government officials all these years had interpreted the law to their own advantage . Would the Srilankan Civil society wake up and up hold the egalitarian principles and accept all minorities as equal citizens of the Island. Would he help suppress the racists groups trying to raise their ugly head. The rising autocracy to be stopped and safeguard the few strands of democracy that still exists.
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justice / August 1, 2014
What happens in all the other Provincial Councils?
Why is there no conflict in them, between the Chief Ministers and the Chief Secretaries?
Is it because the Governor of the northern province deliberately impedes the smooth functioning of the NPC for the benefit of the citizens of the province, as instructed by the President, his only superior – because, the province is the only part of the country administered completely by the military?
The writ of the military prevails over everything else as is evident to all.
Only Austin Fernando appears unaware of the situation.
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Austin Fernando / August 2, 2014
Dear justice
I respect your views which are personal to your thinking regarding the Governor of the Northern Province. I do not hold candles to defend him or any other.
Since “Justice delayed is Justice denied” I thought that I should do justice by referring to two articles which I could find in the internet in a hurry to show that I had been a wee-bit aware of the Governor’s doings in the North. Of course, I humbly confess that I do not know as much as ‘justice’ knows, and I appreciate if I am given the opportunity of reading some of your reflections to enhance my little knowledge from your vast knowledge and awareness through contributions made by you.
The links I refer are:
https://www.colombotelegraph.com/index.php/who-is-the-king-a-few-episodes-from-fransisco-sization/
http://groundviews.org/2014/02/07/making-provincial-administration-work-in-the-north/
Please read them.
Thank you.
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J.Thavarajah / August 2, 2014
Gamini/Native.
I would like to join your club on condition that Shiranee Bandaranayake is removed from the aforesaid list.
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Native Vedda / August 3, 2014
J.Thavarajah
Some months ago a Tamil old codger told me that he thought he met Shiranee Bandaranayake in London probably during 1985-86 while she was on her study leave.
According to him he had a brief chat with her and he raised the question of Sinhala only language policy and stated that it was unreasonable for the state to force Tamils to learn Sinhala.
Old codger was surprised to hear that she didn’t know that there was such law enacted in 1956 and effective.
The old codger may have mistaken her for someone else or she was playing dump. We may not know.
Sinhala state officials don’t see the issues from a minority point of view. In the back of their mind they always believed Sinhalese are the chosen people of this land and they did everything possible to built a racist nation. To large extent Sinhala/Buddhist bureaucracy is responsible for the mess in which we live now.
The bureaucracy which predominantly manned by Sinhala/Buddhist have been in the front line zealously formulating and enforcing policies that are fundamentally racist and unjust.
The problem has been that they genuinely believed in what they did. Someone has to summon courage to tell them off.
These faceless little people behind the desks have done more damage to all people of this island than by all those politicians collectively.
Therefore many in this forum believe that a regime change would do the trick. I don’t believe so. Until the state is reconstituted/restructured both parasites will continue to thrive feeding each other.
I have had the misfortune to deal with several state officials in the past years at various levels, to tell you the truth all of them are great disappointment. From clerk to ministry secretaries all of them behave as if they are running their own empires.
If ever you find yourself in a position to change things in this island, please abolish it.
In other word put an end to, do away with, get rid of, scrap, end, stop, terminate, eradicate, eliminate, exterminate, destroy, annihilate, stamp out, obliterate, wipe out, extinguish, quash, expunge, extirpate; annul, cancel, invalidate, nullify, void, dissolve, erase, delete; rescind, repeal, revoke, overturn; discontinue, remove, withdraw, retract, countermand, excise, drop, jettison, vitiate, abrogate; informalaxe, ditch, junk, scrub, dump, chop, give something the chop, knock something on the head; rarederacinate.
If possible all at the same time.
Bureaucrats don’t need our sympathy and they don’t deserve it.
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Siva / August 2, 2014
GOSL is in a mess with executive powers in A President how can a PC work smooth when The Chief Minister cant appoint even his secretary
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Abimanu / August 2, 2014
To those (of the likes of Thiru, Anpu, etc, etc) who detract the very valid and pertinent elucidation by the erudite, well-meaning (and humble) Austin Fernando on just one aspect of the legal and administrative issues faced by the NPC, may I say:– please don’t get into vituperative and emotional “attack on the messenger without rationally looking at the message”. I do not know why such attacks are even being responded to.
Whether one likes it or not, or shout coarse, the 13th Amendment which is now enshrined in the Sri Lankan Constitution provides the only constitutional basis so far for a devolution of powers. Until a consensus is reached with the majority of all the communities to better it (which does not appear to be at any time plausible in the near future), a genuine and meaningful empowerment of the Provincial Councils and the implementation of its provisions is the only path available NOW.
More importantly, it provides the only political structure with elected representatives to address the immediate issues facing the livelihood of the people of the war ravaged North & East, which have to be addressed and rectified immediately and urgently. It is allright for those of the Diaspora living in the comfort of their family and the largesse of the country they are settled in, but those on the ground cannot wait for a further political solution (or even war crime moves) that will entail protracted negotiations and constitutional amendments lasting perhaps many years.
There is no doubt that the 13th Amendment has inadequacies and deficiencies but devolution is a process and, therefore, these need to be addressed by responsible leadership of the Sinhalese, Tamils and Muslims.
But, Mahinda Rajapakse government, aided and abetted by the chauvinists amongst the Sinhalese and those who don’t really care for the long term interests of the country and its people as long as their power, position and income are safe, as well as those Tamil leaders who eye only on winning the next elections which they know would be assured if they can do nothing but just continue with their tirade against the Sinhalese, would ensure that even the provisions in the 13th Amendment fail and rendered unworkable.
The TNA, the NPC members with the Chief Minister who were elected by the vast majority of the people with high hopes of the Tamils have a greater responsibility to make the NPC work.
If the President or for that matter anyone are violating the constitutional provisions in placing impediments for the effective functioning of the NPC, the TNA which has the legal luminaries such as C.V. Wickneswaren, Sumathiran and Sambandan should themselves test the provisions and challenge the constitutional violations by seeking legal recourse through courts. It should not be other way round –where they just wait for the Chief Secretary (who obviously is being instigated by the saboteurs of the NPC) to go to the courts and simply wait for its outcome.
India also has responsibility to ensure its implementation because it is a product of Indo- Sri Lanka Accord—an agreement signed by two States.
While taking such legal recourse, NPC should continue to pass statues, and meaningfully and effectively spend the allocation of the funds to the NPC to alleviate the sufferings and economic hardships of the common people of the North.
–Why are they not doing them?. All I hear is continued bickering, accusations and emotive outbursts!
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Moderate / August 6, 2014
Abimanu
If Mr. Fernando’s arguments which he had quoted adequately and categorically were used there cannot be any way of the case going in favour of the Chief Secretary, as reported in the press. Unfortunately MP Sumanthiran and Justice Wigneswaran have not done that and Chief Justice who would have been determined not to be with the Chief Minister for other reasons ignored Mr. Fernando’s arguments, which would have happened as they were not submitted in Court. Justice Wignewaran should have taken Fernando as his attorney, but I do not think the latter is a lawyer!
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J.Thavarajah / August 3, 2014
Native.
Gosh! What a vocabulary.Thanks.I have not come across so many words all in one go to refer to the same.
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J.Thavarajah / August 3, 2014
Native.
Gosh!What a vocabulary.Thanks anyway.I see that you have no faith whatsoever with regard to Sinhala Public Servants.They invariably adopt the thinking of their political masters,and as such they would by themselves not be able to bring about a healthy change.
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Observer / August 4, 2014
It appears all arguments and quotes by Austin Fernando have gone waste. I refer to Ada Derana news. I think the Supreme Court has created new administrative arrangements by bringing Chief Secretaries administration away from the Secretaries Minute and handing over to the Public Service Commission. What a joke?
Any comments Austin Fernando?
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Austin Fernando / August 4, 2014
Dear Observer,
I am out of the country. Have not got a copy of the judgment and the references I have made in the article. Therefore, I will refrain from commenting on the decision.
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