Public officials threaten to ignore Presidential orders Responsibility of the President

Sri Lanka’s public services - functions of ministries, corporations, and department’s state institutions and statutory boards have been hampered as the entire state machinery is now without a proper authority as a result of the current political instability, a group of senior public officials disclosed.

A majority section of high ranking public officers serving in state institutions including the Treasury is reported to have vowed that they will not carry out directives being issued by the President as he has no constitutional authority to instruct ministry secretaries.

According to Article 52 (2) of the Constitution, a secretary functions under the direct supervision of the subject minister who has the authority to issue directives to heads of divisions in state institutions and it is not a function of the President, several legal experts told the Business Times.

During the past six weeks of a political impasse instigated by the President on October 26 by sacking the sitting prime minister and the cabinet, public sector decision- making, supervision and the reporting structure has ground to a halt.

Sri Lanka no longer has any authority that can instruct the ministry secretaries as the functioning of cabinet ministers has been restrained by the Appeal Court interim order till Wednesday December 12.

Public institutions have become dysfunctional without a proper authority to issue directives and manage daily functions following the action taken by the President to dissolve Parliament via a gazette notification on November 9, they said.

The Supreme Court has issued a stay order temporarily suspending the Gazette notification issued by the President on the dissolution of Parliament. Its decision on the case was due yesterday (Saturday).

A group of high ranking public officials attached to state institutions including the Treasury has also decided to request other public officials not to heed the orders of the President as he has no authority to do so under the Constitution, the Business Times reliably learnt.

The Constitution has not given any authority to the President to order, direct or instruct secretaries to the ministries. He could only instruct secretaries of ministries coming under his purview, as the subject minister.

Section 42 of the Constitution: “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.”

Secretaries to Ministries

52. (1) There shall be for each Ministry a Secretary who shall be appointed by the President.

(2) The Secretary to the Ministry shall, subject to the direction and control of his Minister, exercise supervision over the departments of Government or other institutions in the charge of his Minister.

(3) The Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers under the provisions of the Constitution or upon a determination by the President under Article 44 or Article 45 which results in such Ministry ceasing to exist.

Further the public officials have to abide by the Establishment Code as well as administration and financial regulations and violating it is a punishable offence.

According to financial regulations, a public official shall be held personally responsible to the government if he or she allows or directs any action to be per- formed without proper authority.

Even the Establishment Code 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 be no room for implementation of any public policy or a direc- tive issued by the President, legal experts said adding that under the present circumstances no one can prevent a breakdown in the public service till the settlement of the political crisis.

Public servant has the right under the law to resist unlawful orders even given in writing as they are servants of the people and not their administrative superiors, they pointed out.