By R.M.B Senanayake –
The 17th Amendment is to be re-introduced. But it is necessary to make some amendments to it to preserve the rationale for such an independent Commission like the previous Public Service Commission. To ascertain the rationale for such an independent Commission for recruitment, promotion and discipline of public officers one has to go into the theory and practice in countries like the UK and USA. In USA the spoils system prevailed under which the president and the ministers appointed the officials to the public service not on merit but on political affiliation and loyalty. They used the power to favor their party supporters and in the process ignored the principle of merit in appointments and promotions. In 1872 the New York Reform League consisting of citizens campaigned for the principle of merit and following the UK practice demanded the setting up of an independent Civil Service Commission. Their agitation led to the enactment of a law in 1883 and the setting up of the Civil Service Commission.
From the beginning its scope was limited to that of maintaining the merit principle in appointments, promotions and protecting public servants from unfair exercise of power by the President or his Ministers. It was realized that personnel administration was a part of executive management and that the heads of Departments should exercise these powers themselves but be required to follow the principles of merit in appointments and promotions and fairness in discipline. It is intended to protect the public servants from the politicians who are the Executive, be they presidents, prime ministers or ministers who want them to carry out illegal or unethical decisions. Public officers in the higher ranks have enough experience of the excesses of executive powers. Several public officers have in their routine work been requested to ignore the law, delay the law or wink at it. It is in this way that the attack on good governance takes place. Human beings are not angels and they are not governed by angels as observed by James Madison. So in the interests of good governance and the upholding of the rights of the citizens vis a vis the State, the protection of the public officers is necessary. This is what happened after 1956 when politicians started dictating to public officers irrespective of the law and principles of good governance. So the rationale for an independent Commission is purely for the upholding of the merit principle and the protection of the public officers from unjust actions of the Executive. The threat to the merit system comes from politicians including the president or prime minister or the ministers.
But the independent PSC is not an agency for personnel administration in the government. It is this principle that was violated by the Police Service Commission. The former PSC included the Police department in its scope. It acted on the recommendations of the Head of the Department although it did look into any complaints from public officers regarding unfair promotions or disciplinary punishments. When the 17th Amendment was discussed in the OPA I remember one retired DIG insisting that the Police Department should have a separate Commission unlike the previous PSC. So a separate Commission for the Police Department was appointed and this Commission departed from the principles on which the former PSC operated and instead took an activist role in personnel matters in the Police Department undermining the managerial authority and capacity of the IGP. Former IGP Dr Frank Silva has criticized the Police Commission for it’s undermining the police department administration and rightly so. This Commission violated a fundamental principle that personnel management is part of the executive management function. Personnel management must continue with the Head of the Department as under the previous PSC.
The objective of intelligent personnel management is to also ensure not only the recruitment of competent employees on merit but also to provide for them to work in an environment free from arbitrariness or favoritism. This is a problem of human relations. Employees often meet with excesses in the exercise of executive power by the heads of Departments and superior officers. But discipline must be fairly imposed and this is another supervisory function of the PSC. Such an environment is conducive to superior performance and is in the interests of the Department.
Under the 13th Amendment there were set up separate independent Commissions for the Provincial Councils. While decentralization is good it is often more difficult to maintain the merit principle at district level where the pressures on the P. C Ministers is much heavier than at the national level. So it is important that the Provincial Commissions should follow the standards approved by the national PSC. This should be made mandatory on the Provincial PSCs without making them subordinate to it.
How should the Members of the independent Commission be appointed? They should be appointed directly by parliament rather than through a so-called Constitutional Council. The latter came to be representatives of the political parties; the very principle that the independent Commission was set up to curb. There is no reason to appoint members on a communal or religious basis for they are expected to follow the principle of merit. There are professionals who can be expected to uphold this principle without being swayed by communal or religious prejudice. So it is better to scrap such representation and instead appoint the Members by Parliament. Their names could be proposed by the OPA or by the different professional bodies but not necessarily from members of their professions but persons known to be upright and free from prejudice and able to follow the principle of merit and fairness.