• Politicisation of the Public Service
• Eppawela Phosphate Agreement – Part II

"Mage paurushathvayata hariyana veeduru pad ekak mata oney. (I need a glass pad of sufficient size to match my personality)," were the first words of a Sri Lanka Administrative Service (SLAS) officer, albeit a senior and not a new recruit on taking over his new post. He was duly supplied with a glass pad bigger than the previous; but perhaps it was still too small to match his ego.

This is not to say that all officers in the Sri Lanka Administrative Service are of a similar nature. But a few rotten mangoes can easily give an air of rot to the whole basket. In contrast, to those hailing from the past, the Ceylon Civil Service (CCS) basks in the rosy light of one that served well and is beyond reproach. Neville Jayaweera formerly of the CCS spelt out the criteria for a good public service in a democratic society. Being the instrument created by the constitution and made available to the government in power to implement its policy, he pointed out that it was necessary for the service to not undermine such policy at any point. But he says that "it must give professional advice to the government in the implementation and formulation of policy". It would seem that they were in the general mould of administrators, but those who would say "&127;&127;yes" or "no" with reason.

&127;&127;A debatable example is the one offered by Neville Jayaweera. Television invaded our homes a decade later than planned, due to the intervention of Jayaweera, who was it appears not a "yes man". The Prime Minister at the time Dudley Senanayake submitted a cabinet paper to set up the Rupavahini Corporation, but the proposal was turned down by the Cabinet on a report submitted by Jayaweera, "that contained ten reasons setting out why a television corporation was bad at that juncture" . So the Rs 200 million offered by the German government was instead utilised to set up a medium wave radio network. We had to wait for a decade to catch up with the rest of the world on what is today widely regarded as a basic necessity.

The president of the current Sri Lanka Administrative Service Officers Association S. Ranugge who is the also the Commissioner of Child Care and Probation poses the question, if the CCS was sensitive to public policy why was it changed? The response is perhaps found in the tussle between the public service and the politicians for control in the post independence era. While the public service was distanced from its source of control, there was no friction. But with independence came politicians whose sole existence revolved around power and control. This possibly gave rise to a tug-of-war between the two, and the politicians being the "true representatives of the people" had their way.

Independence saw the public service usurped in its powers and functions by a new sector, politicians. In 1963 a spanner was thrown into its works when the CCS was abolished. This was followed by the dismemberment of the service in 1972 and the introduction of the chit-system in 1977.

Ranugge himself admits that a politicisation of the public service set in 1972 and gathered momentum after 1977, continuing to this day. The service that began as an implementor of the orders of the "raj", became an aid in the formulation and implementation of policy, should have evolved into a managerial one. But it seems that the service now large and lumbering has lost its focus, and has not been able to rid itself of its "colonial mentality".

In 1968, the public service was 168,466 strong. By 1998 it had grown almost four-fold stronger at a veritable 790,000. At no point was there a reversal in this trend. The numbers in public service continuously rose, even once big government became unpopular.

&127;1977 it is said ushered in the winds of change and with it the notion of small government and de-regulation. But the numbers in the public service continued to rise. The public service that was 446,085 in 1978 doubled to 790,000 by 1998. However, the numbers in the corporation sector, that could be categorised as being semi-government declined with privatisation. There were 106,660 in 1968, which rose to 681,034 by 1978, but gradually declined thereafter. From 1991 to 1998 the employees in this sector were halved to 301,000.

Ranugge says that the need and indeed the role of the public servant is more in line with that of a manager of a company. "1977 opened the doors to an entrepreneurial economy. The government was supposed to play an entrepreneurial role. But does it really? There are on average 36 persons serving a single village today. And the government is getting uncontrollably bigger. It is a welfare government that is in place and not an entrepreneurial one at all."

The various arms of the government keep growing tentacles, adding to their existing bulk. It appears that some of them have been created almost in a spirit of desperation to get a job done. What the current overhauling translates into is the creation of new and yet newer bodies dealing with whatever issues that are in fashion. This is true of all governments, and not just the present one alone. Often the many authorities that stem from various task forces are perched in mid-air, with no real link to the existing structure, denuding them of any powers that they would otherwise have. An example would be the Southern Development Authority. There is also the tendency to duplicate tasks creating ever-new entities. This it may be said is symptomatic of a system that is without central planning and a clear-cut vision of its own role and future.

As Ranugge points out the unwieldy bulk that serves as the state service has no spelt out mission. This perhaps relates to the chaos that arises from non-centralised ad-hoc planning. "&127;In jargon that is commonplace today, the private sector is the engine of growth. It is very well to have an engine but there must necessarily be a driver, one who propels the engine, giving it direction. This is where the public sector comes in. It is the public sector that must give leadership to this engine of growth, by formulating relevant and necessary policy. It is the political representatives who articulate policy. Theirs is the last word on what policy it is that the government must adopt. It is the role of the senior public service officers to act as catalysts both in the formulation of policy through necessary advice and thereafter in the translation of policy into projects and programmes."

But the public service today merely serves as one that rubber-stamps the orders, misguided or otherwise, of the political executive. "In reality the officers should present a number of options to the Minister, but now the officers merely rubber-stamp what is suggested to them. In India, the US, the Netherlands etc., the public service plays a big role, and the system is in place to enable them to play this role, says Ranugge.

The implication is that in Sri Lanka the system is not one that encourages independence. "The independence of the senior officers must be guaranteed through the constitution. At present, there is no proper system for the appointment of heads of departments or ministries. The changes that must be in place have not only to do with de-politicization, but also with notions of good governance." The lack of space within which to function makes careerists of most public service officers, seeking to get as high up the ladder as he or she can under a particular regime in power. This they do with the knowledge that once a new government is elected they will be relegated to the infamous public service pool, a limbo of sorts.

The salary structure of the service is one that requires urgent review. Why? "Sri Lankan public servants get the lowest salary as a whole in the region. This would be alright if there was a sense of equity within the system. But this is not so. Recently, the salaries of parliamentarians were increased, but the public servants were not granted anything. This is very disheartening for those in the service." His sense is that the public service is often used as the whipping boy by those in government to justify their own ineptitude. "There is this constant complaint of inefficiency. But to whom do we owe the high social index Sri Lanka continues to enjoy?" he queries.

On the issue of salaries the public sector is certainly under-paid. The irony is that both those who work and those who do not are treated alike. There is little doubt that a system must be in place to provide incentives to merit. This is something that has been articulated by various federations of commerce and other business leaders.

In terms of stratification the lowest in the scale, the lower grades and minor staff are paid between Rs 3440 and Rs 3990. The next level the middle level staff, largely clerical staff are paid Rs 8575 and the top level Rs 14.960 and above. Certain categories in the top tier are paid allowances between Rs 8,000 - 15,000. Such modest earnings provides incentive certainly, for members to engage in subterfuge to increase their earnings and other unseemly activity, even extortion at financial and other material inquiries, to increase their meagre bounty.

"Laabai, laabai," were the cries emanating from the office of yet another SLAS officer. She was selling sarees to the staff, sarees she had procured in India. A peon in another government office had been transferred for the same offence. In her case there was none to take action...

And so the public service itself becomes laabai.

The public service as envisaged in the Soulbury constitution was an independent body. The permanent secretaries to ministries exercising supervision over the department or the departments of government in the charge of the respective Minister, were appointed by the Governor General, who also retained the powers of transfer. In this context the public servants who gave direction to the service were safe from the manoeuvrings of ministers. And the Public Service Commission was vested with the "appointment, transfer, dismissal and disciplinary control of public officers". The PSC was given very real teeth, with the power to seek punitive measures against anyone trying to influence its officers.

The Republican constitution of 1972 succeeded in denting the independence hitherto enjoyed by the heads of departments. The constitution vested the responsibility of appointment, transfer and dismissal with the cabinet. The appointment of heads of departments and appointment to other positions were made by the Cabinet on the recommendation of the relevant Minister in charge. The only relief was in terms of disciplinary control and dismissals. The Cabinet was the implementing authority. But a dismissal or any punitive action could only be effected following a recommendation obtained by the relevant minister from the State Service Disciplinary Control Board.

The 1977 constitution gave a free hand to the politicians. The powers to appoint, transfer, dismiss and effect disciplinary action were vested with the Cabinet. Such powers in relation to heads of departments were non-delegable and are totally in the hands of the Cabinet. But lesser officers came under the Public Service Commission, to which the powers of appointment, transfer and disciplinary control of such officers had been delegated. Here too that which had been given was as swiftly claimed by the politicians. There is absolute provision for the Cabinet to override or vacate any decision of the Public Service Commission.

Eppawela Phosphate Agreement – Part II
By Batty Weerakoon

Continued from yesterday

This is not all. The process of Project Approval as given in the Act can very readily be turned into a fraud practiced not only on the unsuspecting but also on the diligent. The EIA when received from the Project proponent, is made available to the public, and the Project Approving Authority devised under the Act, shall hear any objector to the Project, and thereafter decide whether or not to approve it. If approval is withheld there is an appeal to the Secretary to the Ministry of the Project Approving Agency. But where approval is given despite objections the objector has not the benefit of an appeal. It just ends there. This process can work satisfactorily where the Project Approving Agency is independent of the Project Proponent. But in respect of Projects that are actively promoted by the Government, as has been the case with Eppawela Phosphate, the process of environment protection given in this Act is bound to fail.

Exclusion of Central Environment Authority.
The UNP government had seen to it that in regard to the Eppawela project the Central Environment Authority does not come in at all. About the same time that Mr. Ranil Wickremesinghe as Minister of Industries was getting up Regulations to circumvent the law as it should have been applicable to Eppawela, Dr. Wimal Wickremasinge, as Minister of Environment, was formulating the Regulations that shut out the Central Environment Authority from Eppawela. By Regulations dated 18 June 1993 he made the Geological Survey and Mines Bureau a-Project Approving Agency". What transparency can there be in the Geological Survey and Mines Bureau which promotes the Eppawela project of McMoRan being the very authority that considers McMoRan’s EIA furnished for the purpose of having the project approved? That is not all. It is the Secretary to the Ministry of Industries who signs the McMoRan Agreement that is the appellate authority on any matter relating to the McMoRan EIA on Eppawela.

This Appellate Authority, the Secretary to the Ministry, as signatory to the Mineral Investment Agreement has already in terms of the Agreement admitted the possibility of the most grievous damage to the environment. Para 2.9 of the Agreement is aimed not at prevention of environmental damage but at making a realistic assessment of the possible damage to the environment from industrial mining. It says, "The Company shall manage, monitor and progressively control and correct all adverse effects of mining with respect to water pollution, air pollution, soil contamination and all other factors that may tend to degrade and/or endanger the environment in conformity with the applicable law." There in one single sentence is the McMoRan EIA on its activities in Eppawela. The possibility, or rather the inevitability of severe environmental pollution and degradation is admitted by parties to the Agreement. For remedy and rectification it refers to the "Applicable law". The fact is that there is no such applicable law. All the talk about the EIA and how it will be scrutinized before approval is granted to the project is just plain humbug.

Part III
Investment Agreement makes the Law

Section 30(1) of the Mines and Minerals Act, 33 of 1992 imposes limitations to the issue of exploration and mining licenses by the Geological Survey and Mines Bureau which is the license issuing authority under this Act. It gives the instances where licenses should not be issued and one such instance is in its sub section © which specifies —

"any land within such distance of a lake, stream or a tank bund within the meaning of the Crown Lands Ordinance (Chapter 454), as may be prescribed [without the approval of the Minister in charge of the subject of lands]:

A large number of small tanks situated in close proximity to the Eppawela Phosphate deposit are fed and augmented by the Yoda Ela which flows almost adjacent to the deposit. To the South of the deposit the Yoda Ela is less than a quarter of a mile away. To the East and the West it almost borders the Yoda Ela for a distance of approximately two to three miles each way. No permissible distance for exploration or mining has been prescribed and therefore no license could in law be issued with or without the consent of the Minister of Lands. Nevertheless it may be asked as to why the distances from lakes, streams, and tank bunds were not prescribed as required by the Act for the purpose of issuing licenses for exploration for and mining of minerals. The Minister in charge of the sector at the relevant time was Mr. Ranil Wickremesinghe, as Minister of Industry. Section 64(1) of the Mines and Minerals Act, 33 of 1992 vests him with the function of making regulations "in respect of all matters which are required by this Act to be prescribed or in respect of which regulations are required or authorized to be made under this Act." The answer to this is inescapable. Had such an exercise been attempted it would have been made clear that the Eppawela apatite deposit was situated in an area in which commercial mining as attempted by-McMoRan could never be permitted.

Yoda Ela - gets "sold"
Not only is it that the Yoda Ela runs almost adjacent to the mining area. Related to the Yoda Ela and running directly the risk of pollution are the 3 small tank cascades namely Hammillewa, Eliye Diwulwewa and Kirolagama, each having 5 to 6 area tanks within them. Also further down along the Yoda Ela course there are several tanks which can be polluted from what it could pick up from the mining area. These tanks are the Konwewa, Mahaganewewa, Siyambalawewa, Ihalawewa, Kaduruwewa, and several tanks of a higher order such as Palugaswewa. It is not beyond the realm of possibility that the pollution can even reach the Anuradhapura tanks such as Tissawewa that are served by the Yoda Ela.

There is also the prohibition in regard to the issue of licenses, without the approval of the Minister and the Minister of Lands, for exploration or mining, "any land situated within such distance of catchment area within the meaning of the Crown Lands Ordinance as may be prescribed....". Kiriwelhinna is the highest point of the Eppawela phosphate ridge. The Moderagam Aru catchment begins there, and it also borders the Kala Oya and Malwatu Oya catchments.

Scientists who have followed the McMoRan saga of the Eppawala people have seriously commented on the possible damage to the ecosystems in the area by large scale phosphate mining. Mr. D. L. O. Mendis, referring to irrigation systems as "ecosystems" because of their multi-faceted functions observes, "The Eppawela phosphate rock deposit is located at the very heart of Kalawewa-Jayaganga ecosystem or cultural landscape. Mining the Eppawela deposit to exhaustion will mean the inevitable degradation of this cultural landscape, and the destruction of the Kalawewa-Jayaganga water and soil conservation ecosystem."

On the Jayaganga or Yoda Ela Mendis cites R. L. Brohier: "The Jayaganga, indeed an ingenious memorial of ancient irrigation which was undoubtedly designed to serve as a combined irrigation and water supply channel, was not entirely dependent on its feeder reservoir the Kalawewa for the water it carried. The length of the bund between Kalawewa and Anuradhapura intercepted all the drainage from the high ground to the east which otherwise would have run to waste. Thus the Jayaganga adapted itself to a wide field of irrigation by feeding little village tanks in each subsidiary valley which lay below its bund. Not infrequently it fed a chain of village tanks down these valleys - the tank lower down receiving the overflow from the tank higher up on each chain.

This literary gem of Brohier with its insights on ancient hydraulic engineering could not have passed unread by students of the vintage of Mr. Ranil Wickremesinghe, grandson of late C. L. Wickremesinghe - a contemporary of Brohier, and very distinguished Land Commissioner under D. S. Senanayake, and also first Ceylonese GA of the Anuradhapura district. The men manning the Geological Survey and Mines Bureau could not have been ignorant of the ecosystems of the Rajarata. It can therefore be submitted that it is precisely because they knew the consequences of what they were embarking on that they desisted from attempting to prescribe distances from the Yoda Ela for purposes of phosphate mining. Any attempt at publicizing such distances by way of Regulations would have set them against other difficulties too, especially in regard to Jayaganga which can claim for itself the rank of an ancient cultural monument protected by sec. 31(a) of the Mines and Minerals Act No. 33 of 1992. From Mr. D. L. O. Mendis we have it that UNESCO is on its way to include it in its pantheon of World Heritage.

Agreement gives McMoRan extra legal rights.
The Mineral Investment Agreement provides for McMoRan to work on the licenses that had been issued to the State owned Lanka Phosphate Co., for both exploration and mining. The kind of mining, the rate of mining and the nature of the related industrial activity meant to be engaged in by this Company was not such as to deny to it the licenses it needed for its activity. However had the Company’s activity, engaged in by virtue of the licenses, caused any adverse impact on the environment it was always open for the Central Environmental Authority to step in to set things right. This was action under the Environment Law. But in that the Agreement has itself recognized the nature of the environmental damage that can be caused by the extensive mining by McMoRan, and purports to provide for relief, there is nothing the Central Environmental Authority can do in the face of such damage. The Agreement protects McMoRan from the Environmental Law. The Agreement also obliges the Government to issue to the Company referred to as "Geo Resources" licenses for exploration and mining of 20 sq. km within the "Exploration" area.

There is also an additional area of an all round distance of 10 km from the Exploration Area that is designated the Buffer Area. In respect of this area clause 2.4 of the Mineral Investment Agreement makes this reservation: "In the event the Company does obtain Exploration and/or Mining Licenses or rights to an assignment of Exploration and/or Mining Licenses, covering lands within the Buffer Area such lands shall be added to the Exploration Area and treated in all respects as part of the Exploration Area (and Mining Area, if a Developmental Plan is approved) and (sic) as licenses which are subject to the provisions of this Agreement." The clause treats these assignments as "Land leases and other Required Surface Use Agreements".

This devise of a Buffer Area of such extensive extent would bind the Government to grant to McMoRan Exploration and/or Mining Licenses to a total of 136 sq. km. If to this is added the 20 sq. km assigned to Geo Resources, as provided for, the total land area would mount to 156 sq. km. Here McMoRan neatly gets over the prohibition in section 48(1) of the Mines and Minerals Act which says, "No license to explore for minerals shall be issued in respect of any area exceeding one hundred square kilometers." It also frees McMoRan from furnishing EIAs etc. for work in this additional area despite the horrendous reality that the northern boundary of the Buffer Area extends to a point just below the Anuradhapura Sacred City. It also frees McMoRan from the prohibitions to the issue of Exploration and Mining Licenses in respect of land situated in close proximity to the major tanks which include the Tissawewa and Nuwarawewa, and the many sites of archeological interest (and sites of religious veneration). This is not just an extra legal right McMoRan gets but a clear and serious infringement of several laws as relate to the issue of Licenses under the relevant Act.

The appetite grows with the eating even to the point of recklessness. The clause 2.4 of the Agreement goes on to demand: "Promptly following the date of this Agreement the Government shall use its best efforts to facilitate the entering into of the following in order to secure for the Company all of the rights for surface use of land which are necessary for the conduct of the Company’s operations contemplated by this Agreement: (a) a preferential lease between the Company and the appropriate Government authority with respect to State Land within the Exploration Area, and (b) a lease between the Company and the Urban Development Authority with respect to the processing area." Item (b) refers to the processing area in Trincomalee, and this will be considered in a different part of this document. Item (a) relates to land vested in the Mahaweli Authority.

A very salient position in the investment Agreement is that it does not recognize that the occupants of the land in the Exploration and Mining areas have any personal soil rights. It therefore takes away from the land owner or occupier in this area his rights as against the License holder as provided for in the Mines and Minerals Act No. 33 of 1992. Section 61 of the Mines and Minerals Act allows the holder of a license issued under the Act, "to carry out the activities authorized by such license in compliance with such standards and procedures as are prescribed for the carrying out of such activities by the National Environment Act, No. 47 of 1980...". The occupant of the land has therefore the right to refuse the holder of the license to enter his land and carry out any activity which is likely to have an adverse impact on the environment as recognized by the law on environment. The Mines Bureau can require the occupant of land to allow access to such land only to the licensee and not to a transferee of a license. This means that under the Mines and Minerals Act the soil owner or the occupier can resist McMoRan on very valid and legal grounds. The owner or occupier can also resist a licensee under the same provision of the Act if he is not satisfied that the licensee can, after exploration or mining, restore and rehabilitate the land in the manner prescribed by the National Environment Act or the Mines and Minerals Act. The Investment Agreement adopts the simple devise of the preferential lease" to McMoRan from the Mahaweli Authority in order to counter this possibility. It proceeds on the assumption that the land here belongs to the Mahaweli Authority and that the occupant’s rights are extinguished by the "preferential lease". The devise is meant to ensure that the rights of the Eppawela landowner as against McMoRan are wiped out.

Part IV will appear tomorrow