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Thu, 31 July 2014 12:20:36
Sri Lanka public service, rule of law undermined by constitution: rights body
13 Jan, 2010 10:12:30
Jan 13, 2010 (LBO) - Sri Lanka's post independence constitutions of 1972 and 1978 and the scrapping of the institution of permanent secretaries has usurped the rule of law and destroyed the impartiality of the public service, a rights body has said.
Following the independence of Sri Lanka from Britain, the island inherited a government structure headed by permanent secretaries that operated strictly according to a set rules and treated all citizens equally without fear or favour.

Without rules, the system becomes arbitrary and anarchic, and laws and government services would be selectively implemented and dispensed.

Arbitrary Governance

The state administration was headed by permanent secretaries who acted as a bulwark against politicians who made ad hoc policy or tried to undermine rules to grant privileges to a favoured few, and prevented arbitrary rule.

"The British treated Sri Lanka as a model for their other colonies," Basil Fernando, head of the Asian Human Rights commission and a lawyer, said in a statement.

"The British in their own country developed a system of civil administration and they tried to model the administration that was introduced into Sri Lanka on the basis of what they had developed in their own country."

The statement traced the transformation of Sri Lanka's state machinery from an institution that served the people to an oppressive tool of the rulers that set the stage for arbitrary government.

Analysts have said that the constitutions themselves, which should have liberated the people by limiting the scope of the state and ensuring the rule of law, instead became instruments that granted privileges to some and expanded the powers of the state.

The statement referred to a recent discussion on the constitution between former chief justice Sarath Silva and constitutional ministry consultant and senior lawyer Uditha Igalahawa.

One of the worst such privileges was put in the 1978 constitution.

"The executive presidential system as envisaged by the 1978 Constitution placed the executive president above the law," Fernando wrote.

"The provision of article 35 as well as many provisions of the Constitution should be seen as an attempt to displace the framework of the rule of law and to give power to the president to act without following the basic norms of the rule of law."

Permanent Secretaries

But the rot had set in much earlier. Sri Lanka's then Civil Service Commission was abolished in 1971.

Under the 1972 constitution, interference into the administrative service had started with cabinet of ministers taking over the functions of the Civil Service Commission.

The most important among them related to appointments, promotions and disciplinary control of all civil servants.

"In the British system the position of the permanent secretary of a ministry was one of the most important functions," Fernando wrote.

"There were great examples of permanent secretaries who have played prominent roles in shaping their ministries and therefore also shaping the traditions of the civil service.

"By taking over the functions of the Civil Service Commission by the cabinet, came the problem of the politicisation of the civil service.

"The independence of civil service was seriously damaged by direct cabinet interference into the workings of the civil service."

Constitutional Council

Fernando says in 1978 though a civil service commission was brought in, the positions of the permanent secretaries were not restored.

But with the creation of an extraordinary powerful executive presidential system the functions of ministers had come under the control of the executive president.

One person now had the capacity to interfere into the appointments, promotions, disciplinary control and all matters relating to the civil service.

The 17th amendment to the constitution which is now openly flouted was an attempt to correct the problem.

The amendment sought to create five commissions appointed by a separate independent constitutional council to protect the public service from direct interference by the president.

The commissions would independently make appointments, promotions, transfers and take disciplinary action.

"By interference into the system in 1972 and 1978 what happened was not just mere politicisation into the civil service but in fact, the abandonment of the supremacy of the law itself," Fernando wrote.

Rule of Law

The rule of law is not limited to just the judiciary or courts, but to the entire working of a system of government that people appoint to dispense justice or govern them.

"The British civil service was grounded on the foundations of the rule of law. The British civil service, like the entirety of the British system is based on the conception of the rule of law which is well grounded within that country," says Fernando.

"British justice is based on the fundamentals of the rule of law with an unsurpassed attachment to the principle of the supremacy of the law."

"The supremacy of the law as against the supremacy of the king or ruler was so deeply entrenched into the system of British justice and therefore also the British administration."

"Thus, any discussions on the British administration and whatever the heritage that had been communicated to Sri Lanka should be discussed within the framework of the fundamentals of the rule of law.

"The rule of law is the mother culture within which the civil administration functions."

Above the Law

Fernando says the 1978 constitution where the president was placed above the law in section 35, is an attempt to displace the framework of the rule of law and to give power to the president to act without following the basic norms of the rule of law.

"In fact, what has happened since 1978 is interference not only in the civil service but also in relation to the judiciary," he said.

"If this approach was adopted by the judiciary, section 35 of the constitution could have been interpreted within the framework of the rule of law," he says.

Fernando says the judiciary could interpret section 35 on the basis of the rule of law and the insistence on the supremacy of the law. This could help implement the 17th amendment.

"There is no way to ignore the fact that there is a fundamental disturbance of the very foundations of constitutionalism that was made by the 1978 Constitution.

"It is a blow against the supremacy of the law and the rule of law.

"Therefore the fundamental issue is not just about the Civil Service Commission and independent selection alone, it is about the limits of the executive and the functioning of the entire system within the framework of the rule of law."

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READER COMMENT(S)
2. Lanka Muslims, UK Jan 13
In Sri Lanka the politicians in power rule the law and thereby the people when it should be the law that should rule the people and the politicians. There should be public agitation to bring about a change.
1. D.Dissanayake Jan 13
The abolition of permanent secretaries was the worst thing that happened to the administrative service. With this move the politicians managed to remove all aspects of impartiality in running ministries and departments. The way was set for the dismantling of an independent highly respected institution.