The devolution of the Public Service Commission

by D. A. Wijewardene,

Rtd. Secretary, Public Service Commission

We have now a revised Public Service Commission (PSC) as brought out in the Seventeenth Amendment to the Constitution as from 5th October 2001. It would be pertinent to ask at this stage as to whether the present amended version meets the aspirations of the public service and the Government. In such a study it would be relevant to examine the reasons for and the process of devolution that the PSC has gone through in arriving at its present form. It would then be seen that from 1946 to-date Sri Lanka has witnessed the promulgation and operation of three Constitutions. With the change of each Constitution far reaching changes were introduced into the administrative process in the appointment and disciplinary control of public officers.

Lord Soulbury

The first was the Soulbury Constitution under which the appointment, transfer, dismissal and disciplinary control of public officers were vested in the Public Service Commission directly by the Constitution and therefore independent to this extent.

It also provided that the Public Service Commission may delegate any of the powers vested in the Commission to any public officer.

Accordingly the PSC reserved to itself the powers in respect of the higher grades of officers, and the powers in respect of other officers were delegated to heads of department and to officers below that rank.

After Independence in 1948 the Public Service Commission system in relation to the appointment and disciplinary control of public officers came in for adverse comment. The very fact of its independence was later held against it.

The Ministers of State, who were now charged with greater responsibilities, contended that if they were to implement the progressive policies under a National Government, they should have the powers over the agents through whom they could implement these policies.

The cry was that powers of appointment and disciplinary control of public officers be vested with the Ministers of Government.

Republican Constitution of 1972

With the promulgation of the Republican Constitution of 1972 the Public Service Commission system was abolished and the Cabinet of Ministers was vested with all power over public officers, who were then designated State Officers.

The Cabinet of Ministers was responsible for the appointment, transfer, dismissal and disciplinary control of State Officers. However, the Cabinet could not be expected to exercise all these powers by itself. The Constitution provided for delegation by the Cabinet.

Accordingly, the Cabinet reserved to itself the powers in respect of the higher grades of officers and the other powers were delegated to individual Ministers.

The Ministers too kept for themselves the powers in respect of staff grade officers and delegated the other powers in respect of non-staff grade officers to heads of departments and other officers below this rank.

Under this Constitution there were also created two special institutions call the State Services Advisory Board and the State Services Disciplinary Board, of which I happened to be appointed as the Secretary. These two boards performed advisory duties.

The Constitution laid down that the Cabinet or a Minister may make and order of appointment or discipline only after obtaining a recommendation of one of these Boards.

While this system of delegation was in operation a cry was heard that too was not satisfactory.

The contention now was that a State Minister was primarily a politician and therefore it was inevitable that a decision of such a person, on matters of appointment and discipline of public officers, may be coloured by a certain amount of politics, and therefore the PSC system should be re-introduced.

1978 Constitution

In 1978 the Public Service Commission was accordingly reconstituted, but with a difference. The PSC was created only as an institution subordinate to the Cabinet. It lost the independence that it enjoyed under the Soulbury Constitution.

The Cabinet was vested with all powers of appointment and disciplinary control of public officers. The Cabinet again reserved to itself powers in respect of the higher-grade officers; and all the other powers were delegated to the PSC.

At the same time the Cabinet issued a directive to the PSC that it should delegate these powers to Secretaries of Ministries and to Heads of Departments. The PSC accordingly was left with no original powers of its own. It derived only appellate powers, granted directly by the Constitution.

The PSC proceeded to delegate to Secretaries powers in respect of staff grade officers and to heads of departments (and later to officers below this rank) the powers in relation to officers of non-staff grade, as directed by the Cabinet.

As this system was in operation it was argued that a Secretary to a Ministry being a nominee of the Minister, the former may be influenced politically by the latter in his (Secretary's) decisions. Accordingly on a directive of the Cabinet, the PSC then took back to itself the powers delegated to Secretaries as from 17/02/1992, providing for an appeal to the Cabinet from any such order of the P.S.C.

Merit and seniority

Under the Soulbury Constitution the PSC which was an independent institution, considered merit and seniority as the sole criteria that would govern the appointments of government servants. Political neutrality in the conduct of a government servant was considered as a virtue.

With the Republican Constitution of 1972 politics crept into government service. A State Officer would have necessarily to align himself politically as well with the party in power to succeed in his career. This position had been continued though to a lesser degree, under the Constitution of 1978 and thereafter under the 17th Amendment to that Constitution.

Seventeenth Amendment

With the abolition of the PSC in 1972 there has been a persistent cry for an independent institution to manage the affairs of public officers. What is this desired independence? It is evidently independence from political interference. In various transformations as shown above we have now another form of PSC created by the 17th Amendment to the Constitution as from October 2001. Let us now see whether we have achieved this desired result.

Article 55 (1) of this Amendment stated: "This appointment, promotion, transfer, disciplinary control and dismissal of public officers shall be vested in the Commission."

However, the powers in respect of heads of departments have been vested in the Cabinet of Ministers (by Article 55 (3)), who shall exercise such power after ascertaining the views of the Commission. Article 56 (1) provides for delegation by the PSC to a Committee and under Article 57 (1) delegation to a public officers is provided for.

Present position

At the present moment in practice P.S.C. deals with staff grade officers; and public officers under delegation from the P.S.C. deal with non-staff grade officers, in matters of discipline and appointments. And as regards heads of departments alone the Cabinet has been vested with authority in this respect.

Thus the devolution of the P.S.C., over the years has been as follows from 1946;

1946 - P.S.C. under the Soulbury Constitution, independent and devoid of involvement of any ministers of state.

1972 - P.S.C. abolished. All powers vested in ministers individually and the Cabinet collectively.

1978 - P.S.C. re-established but as a delegate under the Cabinet, with limited powers.

2001 - (i) P.S.C. established directly by the Constitution with powers over all officers, with however the Cabinet having powers over the Heads of Departments only.

(ii) Powers over police officers have been taken away from the P.S.C. and vested in an independent National Police Commission, by the 17th Amendment of 2001.

In the final analysis, it may be said that the system evolved in 2001 (as shown above) would satisfy the requirement of political neutrality in the affairs of public officers to some extent.

The relatively trouble - free atmosphere that prevailed at the last General Election would be to great extent, the result of police officers performing their duties more impartially under an independent National Police Commission.

In my experience as the only Secretary/State Service Disciplinary Board in 1972 and later as a Secretary P.S.C., I would favour the system under the Soulbury Constitution of 1946 as ensuring the greater independence of the P.S.C., which would in turn lead to better performance by public officers of their duties without fear or favour.n