By 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.
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.
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!
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.