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ADDRESS BY HON'BLE MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJP

Dated: 3-July-2013

Director General, Secretariat Training Institute;

Faculty Members;

Course Participants;

Ladies and Gentlemen:

Assalam-o-Alaikum!

It is a matter of immense pleasure for me to address the OMG officers who have to play a role in efficient administration of the country. I am pleased to formally welcome you in the Supreme Court which is at the apex of judicial hierarchy in Pakistan. The Supreme Court is the court of ultimate jurisdiction in this country. The composition, powers and jurisdiction of the Supreme Court are set out by the Constitution itself. Supreme Court exercises original, appellate and advisory jurisdiction and its decisions are binding on all other courts of Pakistan. All the executive and legislative authorities are duty bound to act in aid of the Supreme Court of Pakistan. As guardians and protectors of the Constitution of Pakistan, a heavy responsibility lies upon the judges of the Supreme Court to uphold the canons of constitutional supremacy.  Supreme Court is serving as  bulwark against constitutional transgressions and deviations.

Ladies and Gentlemen!

In developing countries, bureaucracy is considered to be an engine of good governance and development. It, along with other public institutions, is expected to provide leadership, order and stability in the country. Even in developed countries, the role of bureaucracy is pivotal. In modern political systems, bureaucracy is expected to ensure continuity of policies, political order, stability, uphold rule of law, promote economic development and cultural cohesion. Its major failure is in its inability to promote welfare, development, equity and provide justice to the citizens. Regrettably though, corruption, inefficiency, absence of accountability and resistance to change are the manifestation of bureaucracy[1].

In Pakistan, after the independence, bureaucracy had a good start. It provided a lead and was admired for the role played by it in economic development and promoting political stability. This trend, however, did not last for long. Soon, political interference peeped into the bureaucratic structure, causing negative impact on administration and governance. It triggered the lowering of standards, violation of principles of good administration, thus paving way for nepotism, cronyism and political interference, leading to poor governance, maladministration and indeed corruption. It was contrary to global trend in the advanced nations and developing countries, where the bureaucracy was considered to be an institution to promote order and development. Imperial knowledge established the fact that governance was no longer a matter of economic development alone. There were cultural, political and institutional factors that influence the process of governance.

Peter Drucker in his article “In Defense of Japan’s Bureaucracy” asserted that in most developed countries, except America and few European countries, bureaucracy dominates policy/making progress. … … The bureaucratic elites have far greater staying power than we are willing to concede. They manage to keep power for decades despite scandals and proven incompetence.

Good governance is a function of political will and commitment of the leadership. However, bureaucracy plays a pivotal role in establishing Good Governance in a society. The main traits of good governance are accessibility, accountability, predictability, transparency, participation, consensus, efficiency, effectiveness, inclusiveness and ethics. There can be no concept of good governance without having strong and independent institutions. No institution can be strengthened without ensuring rule of law within the institution. The rights of employees of every institution have to be respected within the institution. All employees are to be dealt with strictly in accordance with the applicable laws, rules and regulations, particularly when it comes to assignment of duties, postings, transfers and promotions of employees.

The Government servants can play a positive role in establishing good governance in the country only if they have a sense of security. It is possible only if they have assurance that no adverse action would be taken against them for non-compliance of any illegal order or direction of his superiors or political heads.

Courts have always been mindful of the fact that they have an extremely important role to play to ensure Good Governance in the country. However, these days, the Superior Courts are more sensitive and reactive to the issue than ever before. In order to protect the rights of the Government servants and to save them from the clutches of their superiors, the Supreme Court has held time and again that Government servants are bound to comply with only those orders of their superiors which are legal and within their competence. Compliance of an illegal or invalid order can neither be justified on the plea that it came from a superior authority nor could it be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action[2]. As back as in 1995, the Court observed[3] that a tamed subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a Government servant. Elected representatives placed as incharge of administrative department of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is to apprise the elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. The Supreme Court has also emphasized[4] that the appointment and removal of civil servants is not to be politically motivated. The exercise of powers by the public functionaries in derogation to the direction of law would amount to disobeying the command of law and the Constitution[5]. Departmental authorities responsible to run the affairs of the state do submit to whims and wishes of their superiors and never feel hesitation in implementing even an illegal order, knowing well that it has no legal sanction and if such order is implemented, it is bound to give rise to a number of complications in the future[6]. The duty of public officers is to independently discharge their functions and not to be influenced by dictatorial misuse of powers at the hands of political figures[7]. In case the subordinates are directed to implement an illegal order they should place on record their dissenting note[8].

In the earlier Constitutions of Pakistan, certain safeguards were provided for the civil service. However, in the 1973 Constitution, the same were omitted and the subject was shifted to ordinary legislation. Such statutes, including the Civil Servants Act, 1973, were subsequently passed. The very object of the said statute is to legally regulate the appointment Government servants, and the terms and conditions of service of persons in, the service of Pakistan. It also stipulates that appointment of civil servants shall be made only in the prescribed manner and that the terms and conditions shall be only such as are provided in the Act and the Rules and not be varied to their disadvantage, and that promotions shall only be made on the basis of objective criteria, i.e. “merit” and “seniority-cum-fitness”. The matters of tenure, appointment, posting, transfer and promotion are of utmost importance in the civil service, which cannot be dealt with in an arbitrary manner. In such matters, if on account of favouritism, nepotism or considerations other than merit, rules and instructions are deviated from, the civil service can neither remain independent nor efficient.

This Court while dealing with the most important and long standing issue of favouritism, nepotism and exploitation of the Government employees has held that[9] appointments, removals and promotions must be made in accordance with law and the rules made thereunder; where no such law or rule exists and the matter has been left at the discretion of a designated public functionary, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest. When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and should not be varied, except for compelling reasons to be recorded in writing and which will be judicially reviewable. Civil servants owe their first and foremost allegiance to the law and the Constitution. Officers should not be posted as OSD except for compelling reasons to be recorded in writing and are judicially reviewable. If at all an officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest.

I would like to emphasise here that it is not for judiciary alone to fight against the menace of corruption and nepotism or the other social evils. It is the responsibility of all public functionaries. It is high time that we all realize our responsibility and make concentrated and dedicated efforts to curb this menace from our society. For this purpose, concrete steps are to be taken on war footing.

The Government has established the National Accountability Bureau under the National Accountability Ordinance, 1999, with a view to eradicating corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto and thereby eliminate corruption from the society. Although, the NAB has succeeded in recovering certain amounts from the looters and plunderers of public exchequer, however, in the recent past, it has failed to perform its functions to the expectation of the general public. As is evident from some of the orders passed by the Supreme Court in some of the cases, especially where persons in the echelons of power were involved, the concerned officials of NAB did succumb to the external or internal pressures. Resultantly, the large sums of public money, illegally plundered, could not be recovered.   

We are all aware that in yester years, the political instability and undue military interventions, have distorted the entire democratic structure and undermined the civil service’s capacity and professionalism. The political destabilization had led to socio-economic unrest and tarnished the democratic edifice of the State. The proclamation of emergency on 3rd November 2007 by the then military dictator attempted to destroy and demolish entire judicial structure of the country when the superior court’s judges were required to take fresh oaths under the Provisional Constitutional Order of 2007. Those judges who refused to take fresh oaths were made dysfunctional and an unconstitutional judicial setup was put in place. However, it was the movement for rule of law that restored the de jure judiciary to pre November 3rd position. After the pronouncement of judgment in the case of ‘Sindh High Court Bar Association versus Federation of Pakistan’ reported as PLD 2009 SC 879, the doors for military intervention have been closed forever. The doctrine of necessity giving legitimacy to the constitutional deviations in the constitutional and political history has now been set at naught by the Supreme Court in this landmark judgment and has opened a new era of political stability and persistent democracy.

The purpose of establishing a civil bureaucracy is to ensure effective law and order in the country and to promote the economic and social well-being of the people. Civil bureaucracy is mandated to provide good governance in the shape of efficient delivery of services to the common man especially health, education, civic amenities and the basic necessities of life. Poor law and order situation always poses a threat to the national security and harbours terrorism and criminal activities. I am cognizant of the fact that every department/ service in Pakistan has to face certain political pressures and the civil services are no exception to the same. However, being the holders of public offices it is your prime responsibility to perform your duties in accord with the settled norms of justice and fair play. You must develop the spirit to face danger, fear, or threats with courage and determination. Every public department has its rules of business and any executive or political order should not be complied with, which is manifestly in contravention of those rules.

You people are expected to follow the letter and spirit of these judgments in your respective offices in order to build the society on the norms of justice and fair play. You are expected to play a crucial role with dedication and commitment in facilitating the development of grassroot participation in socio-economic advancement of society. At the end, I would like to advise you to remain patriotic to your country and always adhere to the principle of rule of law in order to turn Pakistan into a true welfare State.

I wish you all good luck and success.

Thank You.



[1] The Pakistan Development Review [38:4 Part II (Winter 1999) pp. 995-1017]

[2] Air Marshal (R) Muhammad Asghar Khan v. General (R) Mirza Aslam Baig (PLD 2013 SC 1) & Syed Mahmood Akhtar Naqvi v. Federation of Pakistan (PLD 2013 SC 195)

[3] Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530)

[4] Province of Punjab v. Azhar Abbas (2002 SCMR 1)

[5] Samiullah Khan Marwat v. Government of Pakistan (2003 SCMR 1140)

[6] Muhammad Akhtar Shirani v. Punjab Tex Book Board (2004 SCMR 1077)

[7] Syed Nazar Abbas Jafri v. Secretary to the Government of the Punjab (2006 SCMR 606)

[8] Human Rights Cases No. 4668 of 2006, etc. (PLD 2010 SC 759)

[9] Syed Mahmood Akhtar Naqvi v. Federation of Pakistan (PLD 2013 SC 195)

 

 
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