Activities conducted by the Education and Special Programmes Division

Training Programme on Newly Recruited Legal Assistants and Investigating Assistants to the Inquiries & Investigations Division

The Education and Special programme Division organised a training programme for the newly recruited Legal Assistants and Investigating Assistants on October 4 and 5.

The training took place in the HRCSL Board Room. Commissioner-Justice D. Jayawickrema, Commissioner-Mahanama Tilakaratne, Mr. M.A. Dharmadasa, Director Establishments-Ministry of Public Administration & Internal Affairs, M. Thilakasiri, Director-School of Postgraduate Studies - SLIDA were resource persons while other top level officers; Secretary-HRCSL, Additional Secretary (Legal), Directors and the Education Officer conducted lectures at the training.

Training Workshop for Attorneys-at-Law on Migrant Workers
 

The Education and Special programmes Division conducted a training programme for the Attorneys-at-Law/officers with a legal background who have volunteered to work on migrant workers issues on October 20 and 21 at the South Asia Partnership, Rajagiriya. This programme was funded by the American Solidarity Centre for International Labour Solidarity Sri Lanka.

The programme was fruitful since all the stakeholders relating to migrant workers such as Officers from the FEB, Immigration & Emigration, Sri Lanka Customs, Foreign Ministry, recruitment agencies and NGOs as well as migrant workers themselves (government and Non-governmental) participated as resource persons and difficulties and possible solutions were discussed in the programme.

Follow-up programme of same will be conducted in the near future.

Inquiries and Investigations Division of HRCSL

“Wherever there is power, there are excesses in the exercise of the power........The basic expectation in a rule of law society is.....that holders of public authority must be able to justify their action as legally valid and socially wise and just.” (One of the South Asia’s leading thinker Upendra Baxi’s statement mentioned in I.P. Massey, Administrative Law, (3rd ed.) Lucknow: Eastern Books, 1990, p. XV and P. XVII)

The Human Rights Commission of Sri Lanka receives complaints against executive and administrative action of public authorities to a great extent.

The Commission delivered remarkable recommendation to protect social security of elderly persons by way of pension scheme. Writing the recommendation, the Commissioner Mahanama Thilakarathne, retired High Court judge, emphasised that delegation of power cannot cause irregularities.

The Complainant in this Complaint had been a Post Master, Grade II. While he was serving in the General Post Office Colombo he had been interdicted consequent to taking him into police custody for alleged offence committed under the Stamp Ordinance and Post Office Ordinance. He had been acquitted by the High Court after the trial.

In the meantime the complainant had retired in 1991 in terms of 12 of the Pension Minute. The Post Master General (PMG) had issued a charge sheet against the petitioner in 1994 despite his acquittal from the High Court case and the complaint submitted his explanation for the charge sheet.

The PMG had recommended the Director of pensions to reduce 5% of his pension. The complainant had lodged this complaint against the said order of deduction of 5% of the pension.

The petitioner argued that his Fundamental Rights has been infringed by the Respondent’s act. The grounds upon which the petitioner alleged that the Fundamental Rights were infringed are that the retirement was in 1991 and charges were levelled in 1994, thus contravening the Public Administration Circular No. 89/90, which stipulates that the charges should be preferred within one month.

Further he argued that the order or finding was not intimated to petitioner, as to whether he was guilty or not and 5% of the pension had been reduced only by way of a minute. Moreover he said that the order for reduction made by the Director, Pensions who lacks authority to reduce the pension and the Secretary Public Administration has no authority to regularise the illegal order made by Director, Pension.

It is submitted that the minute of pensions has been declared to be a part of the written law of Sri Lanka by Ordinance No. 02 of 1947. So that the payment of pension shall be governed by the Minute on Pensions and not on the whims and fancies of the Secretary. The Minute on Pensions is binding not only on the public servant but also on those entrusted with the duty of computing and paying his pension.

Section 12(1), 12(2), 12(3) are relevant here, subsections 2 and 3 specially refer to Secretary Public Administration. The HRCSL decided final word lies in the Secretary, Public Administration in the light of the other Sections in the said statute. Other sections such as Sections 15(1), (2), 15(a), 16(1) emphatically refer to Secretary, Public Administration. They are more descriptive in nature and exclusive in the sense, that no other authority is able to exercise this power.

It was considered whether the authority conferred on Secretary Public Administration can be delegated to another officer and can a defective order be regularised by a subsequent delegation. It is said that as safeguards against abuse of delegated powers, delegation is to be some trustworthy authority, and the delegated power should be strictly defined by the Statute (A.I.R.(1992) S.C. 2038).

There is no delegation by implication. Any excess results in the delegation ultra vires. It was further stated that if an officer is assigned to do a particular act it must be done by him alone and no delegation is allowable by implication. It must be explicitly and specifically defined as is found in the Minutes on Pensions.

It is a jurisdictional error to erode the powers granted by delegation. Jurisdiction means competency. Both, total lack of jurisdiction and latent or contingent want of jurisdiction result in judgments or orders void, and not voidable (as held in Perera Vs. Commissioner of National Housing 77 N.L.R. 361).

“If the requirements of a statute prescribe the manner in which something is to be done are expressed in negative language, that is a thing is to be done in such a manner and in no other manner, then the terms are absolute and neglect to attend to them will invalidate the whole proceeding”. (Craies on statute law 5th edition, P.243)

Post Master General stated that decision to deduct 5% was done by Director, Pensions. Director, Pensions, addressed to HRC said that Secretary, Public Administration had delegated the power to Director, Pension. Thus someone else had usurped the powers of Secretary, Public Administration. This is against the settled principles of law, and procedure.

The delegated authority under the minutes is no person other than the Secretary, Public Administration. Even under S. 12 (1) there must have been a prior delegation. Then the problem arises under maxim, “Delegatus Non Potest Delegare”.

That is, what is delegated cannot be delegated to another. The HRCSL was of the view that in the absence of any provision for delegation by Secretary, Public Administration to any other, a subsequent delegation cannot validate the delegation procedure, which has resulted in a fatal irregularity.

The HRC took the difference between substantive and procedural matters into consideration in this regard. The only authority being the Secretary, Public Administration to determine, deductions, stoppage or suspensions of pensions and the result occasioning a penalty is substantive law, and not a mere procedure.

Such laws are interpreted and construed strictly in favour of the aggrieved person. And it was further said that the procedure as laid down in minutes must be followed, as they are mandatory and not directory.

Apart from this the delay in framing charges, failure to give reasons for deduction of pensions are vital and had consequently caused a violation of petitioner’s fundamental right.

Upon the consideration of the above circumstances the Human Rights Commission decided that the decision to reduce 5% of the pension of the complainant is a violation of his fundamental rights guaranteed under Article 12(1) of the Constitution. The Commission recommended that the 5% of the pension withheld should be repaid to the complainant forthwith.