By Kishali Pinto Jayawardene

Re-ensuring accountability in public employment

The Court ruled that the ad hoc procedure adopted by the Board was arbitrary, unpredictable and unguided by any rule or principle known in advance and that the officers who had been overlooked for promotions, had therefore been unequally treated on a basis that could not be rationally justified. In so doing, the precise reason as to why there should be a right to equality of opportunity in matters of public employment was elaborated upon by the Court in interesting detail. In the words of then Supreme Court judge, Justice K.M.B.B. Kulatunge, "……the service of most public officers is life-time and the guarantee of fair treatment… would, if properly enforced, help in maintaining a contented public service which is vital for its efficient functioning". (Perera and Another vs Cyril Ranatunga, Secretary, Defence and Others, reported in 1993)

That was, of course, 1992 and a different period altogether where the Supreme Court was slowly but surely asserting its right to ensure accountability in the public service. The right to equality in employment, (expressly provided for in Article 16 (1) of the Indian Constitution and developed to an extreme by the Indian Supreme Court), began to be consistently read into Article 12 of the Sri Lankan Constitution. The successive years, which saw stringent standards being laid down in this respect by the highest court in the land, was succeeded however by a lamentable disowning of those self-same principles, resulting in an almost hopeless politicisation of the public service. And though the extent to which accountability collapsed in public employment during the past several years is yet to be gauged in its true solemnity, we are now beginning to have revealing glimpses of this deterioration.

That this should be highlighted in the first instance, by serious irregularities in the scheme of promotions within the police force, comes as no particular surprise. Thus, the Supreme Court, in holding that the fundamental right to equality of opportunity in employment of 46 ASPs had been infringed by their non-promotion to the rank of Superintendent on the 11th of this month, was constrained to remark that the process of selection under scrutiny had been shown to have been "worse than a lucky dip, at which everyone has an equal chance, depending only on his luck." The ASPs had gone to court primarily against the Inspector General of Police, the then Defence Secretary and three senior public servants who had formed part of the interview board. They argued that the police officers, in fact promoted, did not deserve to be promoted and attacked the authenticity of the interview mark sheet, the selection criteria adopted by the board, the procedure followed in verifying service records and the allocation of marks. They maintained that they had been interviewed for three or four minutes each and had been asked various questions, some of which were strictly unrelated to their police work.

In the judgement of M.D.H. Fernando J. (with Gunesekera J. and Yapa J. agreeing), the selection process by which the petitioners were overlooked, was ruled to amount to deliberate manipulation. Forty five ASPs had been selected out of one hundred and seventy nine ASPs in advance for promotion, for good reason or bad and the allocation of marks manipulated to give more for the favoured few and less for the others. The process of interview and selection was shown to be appallingly defective with the non production of original mark sheets, bare assessments of the candidates that were unsigned and unauthenticated and which were inconsistent with computer records that were themselves incomplete or inaccurate and huge discrepancies in the allocation of marks for the candidates. The board was also held to have failed in their proper assessment of the 'service record' of the candidates in that two successful candidates had been promoted despite having blemishes on their record of service. Categorising the whole interview process as a sham, "worse than any the Court has come across", the petitioners were awarded Rs 10,000 each as compensation and costs, in an aggregate amount of Rs 460,000/=. The IGP and the Secretary Defence was ordered to pay Re 50,000/= each personally while the other members of the board of interview were ordered to make payment in the sum of Rs 20,000/=. The remaining Rs 300,000/= was ordered to be paid by the State.

In a hitherto unprecedented departure from procedure and emphasizing the gravity of the matter, the Attorney General was directed to consider whether the conduct of the IGP, Secretary, Defence and the other members of the interview board constituted corruption within the meaning of Section 70 of the Bribery Act. Section 70, which was brought into effect by an amendment to the Bribery Act in 1994, created a new offence of corruption which was wider than the old conventional anti bribery clauses. The section catches up any public officer who, with intent or with the requisite knowledge to cause wrongful or unlawful loss to the government or to confer such wrong or unlawful benefit, favour or advantage on himself or any person, acts or does not act by virtue of his office as a public servant, induces any other public servant in the like manner, uses any information coming to his knowledge as a public servant or participates in the making of any decision by virtue of his office as a public servant. If found guilty of the offence of corruption, the section stipulates summary trial and punishment before a magistrate and imprisonment up to ten years and/or a fine not exceeding one hundred thousand rupees. 

The Attorney General has been asked to report back to court on or before the 30th of April on this matter. Meanwhile, fresh interviews have been directed to be called for in respect of the impugned promotions before an Interview Board, of which necessarily the previous members will not be a part. The Public Service Commission has also been asked to consider whether those members should be debarred from sitting on interview panels in the future.

This February judgement of the Supreme Court could be argued to be justifiably hardhitting, given the perilous state of our prevalent standards of public accountability. And if public discussion and awareness is to be any yardstick, its effect has been felt in no uncertain terms.