Thursday, 11 August 2011

Pakistan's civil servants between Scylla and Charybdis

LAHORE – The civil servants at higher echelons often find themselves caught between the devil and the deep sea when they receive conflicting orders from higher authorities.
Such satiations have become more frequent after restoration of the independent judiciary which has been proactively defending the rights of the people and passing orders in cases where apparent breaches of law and constitutions occurred.
But the top civil servants get stuck between the court directives and orders from their superiors in the administration to either do the opposite are drag their feet on the matter concerned.
They are either shown the door or asked to resign, or posted out to dormant positions by their superiors in case they obey the courts orders; and have to face the music in the courts, if they don’t act upon the judicial orders.
In recent months, we have come across many cases wherein top civil servants faced the consequences when they did or did not act on the apex court orders. The SC through various verdicts has already directed the civil servants to act according to the law, starting from the Constitution of Pakistan to the services rules and regulations. The courts have time and again reminded the civil servants that they owe their allegiance to the state and not the government alone which is a constituent of the state. And that they are bound to act strictly within the parameters of law.
It has been observed that the courts only want them to obey what is due under the law instead of going by the whims and wishes of the rulers and the men in power. While the rulers want them to carry out their orders, right or wrong. That is why, the people in power try their best to get their favourites appointed to the key posts and offices. This practice, in the past, was also prevalent in the judiciary where chums and likeminded were installed to gag voice against the corruption and corrupt practices.
A former bureaucrat said, “Not all but a certain class of civil servants does not understand the fact that they are servants of the state and not the rulers; and that state means people and the institutions they have formed for their collective good.” He added that this class of bureaucrats tends to blindly carry out every order of the ruling elite, particularly when self interests of the two merge.
A senior lawyer commented that “first time in the state history we have such a bold and independent judiciary which the rulers had never expected in the past”. In his view the situation confronting the civil servants has arose because they had never been told to perform their duties to the state instead of the rulers.
The Lahore High Court chief justice hearing a case on Tuesday also took exception to a top government official’s attitude of blindly following the orders of the higher authorities, including the chief minister, and not bothering to know whether the order was lawful or not.
On this count, former vice president of the Lahore High Court Bar Association and senior jurist on service matters, Muhammad Zahid Rana says that unlawful and blind execution of the superiors’ orders is not permissible under any circumstances. He cited Supreme Court decision in Zahid Akhtar case of 1995 which clearly forbids the civil servants from carrying out any order passed by minister, prime minister or chief minister which is not within the four corner of law. He said that if civil servants do not follow the law, they are liable to action.
Zahid Rana said Punjab Civil Servant Act and other allied rules also prescribe for the civil servant to strictly abide by the law and the rules. And the said SC decision, has ordained the civil servants to refuse acceptance to any order if it is illegal and unlawful. He said every department is governed by its rules; such as police order 2002 wherein section 18 allows only the board to change inquiry of a case and the police officials are not bound to obey the order even of the CM if he asks for the change of inquiry at whim.
He also cited the example of former Air Marshal Asghar Khan who had refused to obey an illegal order of the high command and the court had stood by his side and exonerated from the offence. Therefore not blind following but judicial application of judicial mind is a necessary for the civil servants while carrying out orders from the superiors.
Former Secretary LHCBA Muhammad Shahzad Shoukat also said the civil servants can refuse to accept the order of PM or the CM if the same is illegal. But there is a means to do that, he adds. The civil servant facing this situation can send a summary to the CM or the PM, telling him that rules do not permit him to follow the order as the same is illegal. He said there are also a number of SC decisions wherein the apex court directed the civil servants not act upon the illegal orders of the functionaries.

Reported by Sajid Zia
Edited and improvised by Mahmood Sadiq

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