Rajeev Amarasuriya is an Attorney-at-Law in practice in the area of public law before the Superior Courts. He is a Fellow Member of the Chartered Institute of Management Accountants (CIMA - UK), and an Alumnus of both the Faculty of Law of the University of Colombo and the Harvard Kennedy School of Government, Executive Education.
Q The Speaker has informed the President that Parliament has passed a vote of no-confidence in the Government. What is the effect of a no-confidence motion being passed against the Government ?
Article 48(2) of the Constitution provides that the Cabinet of Ministers shall stand dissolved, when Parliament passes a vote of no-confidence in the Government. This Article goes on to provide that the President shall, in such a situation appoint a Prime Minister, Ministers of the Cabinet of Ministers and other Non-Cabinet and Deputy Ministers.
Q In a period of transition, between one government to another, what is the effect on the system of public administration?
A reading of Article 48(2) of the Constitution casts a duty upon the President to appoint a new Prime Minister and a new Cabinet of Ministers, upon the dissolution of the Cabinet of Ministers. Given the affectation such a transition would have on the entire administrative structure of governance, it would seem that this duty to appoint would require to be effected forthwith, without much of a time gap. Therefore, there would be a quick transition, and there would be less dislocation to the system.
"During a period of transition and until the appointment of a new Cabinet of Ministers and Permanent Secretaries, the decision making, supervision and reporting structure of the Public Service and the other institutions and statutory bodies would be severely hampered"
Q What if there is such a delay, between the dissolution of the previous Cabinet of Ministers and the appointment of a new Prime Minister and Cabinet of Ministers? How does it affect administrative structure?
It would be unfortunate if such a situation did arise. I say this because the entire administrative structure comes down from the Cabinet of Ministers, which the President chairs. As you are aware, the system of Government is structured with the Cabinet of Ministers at the top, then the Line Ministries, and reporting to the Line Ministries are the Departments, Institutions and other statutory bodies.
A Permanent Secretary to a Ministry is the Chief Accounting Officer of the Ministry and all Departments, Institutions and other statutory bodies come under such Permanent Secretary.
Article 52(3) of the Constitution provides that a Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers, so in such a case, the person holding office as the Secretary to the Ministry would cease to hold such office which will then become vacant.
During a period of transition and until the appointment of a new Cabinet of Ministers and Permanent Secretaries, the decision making, supervision and reporting structure of the Public Service and the other institutions and statutory bodies would be severely hampered.
"The general principle is that it is the duty of a Public Servant to resist unlawful orders, and there is further authority that even if given in writing, an illegal order would not exonerate a Public Servant from liability under the law. This is on the presumption that Public Officers are firstly servants of the people and not their administrative superiors"
Q Why is the role of the Permanent Secretary so important in the system of administration?
As you know, in terms of Article 148 of the Constitution, Parliament has full control of public finance.
Chapter III of the Financial Regulations makes it the duty of the Finance Minister to account to Parliament on all receipts and payments. In view of the need to nominate officers for the collection and disbursement of public funds on behalf of the Minister of Finance, Chapter III makes further provision for the Finance Minister to appoint the Secretary to each Ministry as the Chief Accounting Officer of the Ministry and the responsibility for the supervision of departmental financial transactions.
The Financial Regulations therefore enable and give effect to the Constitutional duty of every Secretary, subject to the control and direction of the Minister, to exercise supervision over the departments and other institutions coming under its purview. The new National Audit Act also mirrors these provisions. This is how the Secretary becomes pivotal to the functioning of the administration.
Q How does there being no Cabinet of Ministers affect other officers in the Public Service?
If there is no functioning Cabinet of Ministers and the Ministry Secretaries cease to hold office, the remaining Public Service is placed in a most precarious position.
Fundamentally, there is no reporting structure in place, and this is especially so in respect of financial matters. This is because, as I said before, there is a structure of delegation from the Finance Minister to the Chief Accounting Officers and then to the Heads of Department.
Even the Establishments Code at Chapter 27 provides for the Channels of Communication of Government Policy from the Cabinet of Ministers, to the Secretaries and through them to the Heads of Department. Without a Cabinet of Ministers there would not be any approved policy and in any event, without a Secretary, there would be no room for implementation of the same.
So in such a situation there will necessarily be a breakdown in the Public Service.
"There are many repercussions when Public Officers follow unlawful orders, and there appears to be consistent treatment and approach to the same in most jurisdictions"
Q What if a dissolved Cabinet of Ministers continue to sit and make Orders, can Public Servants refuse to follow orders?
As I stated before, even the Secretaries to Ministries by operation of law cease to hold office when the Cabinet is dissolved.So it would not be practical for orders to be communicated to other officers, so this would not arise.
Also, it is clear in terms of the principles of Public Law that nothing would flow from a body that ceases to have lawful authority or jurisdiction.
The Financial Regulations at Regulation 156 also provides that an Officer shall be held personally responsible to the Government if he/she allows or directs any action to be performed without proper authority.
The Supreme Court in the Case of M.N.D. Perera V. Balapatabendi among other things held that even a directive from the President cannot be a defence if it was manifestly and obviously illegal.
Q What are the repercussions when Public Officers follow unlawful orders? Do the Constitutional provisions apply to Public Officers as well?
Article 28 of the Constitution provides that it is the duty of every person in Sri Lanka to uphold and defend the Constitution and the Law; further national interest and to preserve and protect public property and to combat misuse and waste of public property.
Chapter II of the Establishments Code requires all persons appointed to the Public Service to make and subscribe to the oath in the 7th Schedule to the Constitution which specifically requires stating that the officer shall uphold and defend the Constitution. So I think that would answer the second part of the question.
There are many repercussions when Public Officers follow unlawful orders, and there appears to be consistent treatment and approach to the same in most jurisdictions.
The general principle is that it is the duty of a Public Servant to resist unlawful orders, and there is further authority that even if given in writing, an illegal order would not exonerate a Public Servant from liability under the law. This is on the presumption that Public Officers are firstly servants of the people and not their administrative superiors.
"As you know, in terms of Article 148 of the Constitution, Parliament has full control of public finance"
The Establishments Code at Clause 8.1. requires all Public Servants to adhere to the provisions of the Establishments Code and Financial Regulations, and failure to do so amounts to an offence under the First Schedule. It is pertinent that there is specific provision that no plea by an officer would be entertained on the basis that such officer was under pressure by any other officer or authority not to adhere to the relevant provisions.
The non-allegiance to the Constitution is also listed as an offence in the first Schedule of the Establishments Code containing the list of offences committed by Public Officers. Acting or causing to act in such manner as to bring the country into disrepute is another listed offence.
Lord Denning in the Lazarus Estate Case once remarked that : “No judgment of a court, no order of a Minister, can be allowed to stand if it had been obtained by fraud”.
"If there is no functioning Cabinet of Ministers and the Ministry Secretaries cease to hold office, the remaining Public Service is placed in a most precarious position"
Q Can a Public Officer who follows unlawful orders be charged under the Bribery and Corruption Act?
That is an interesting proposition. Section 70 of the Bribery Commission Act which defines Corruption is very wide in scope. It brings within its ambit unlawful loss to the Government or an unlawful benefit to any person. Section 70 further provides that even though there is no intent, knowledge of the same would be sufficient to perpetrate the offence.
So in response to the question, there may be situations where there can be prosecutions under the offence of corruption.