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Role of Bureaucracy in Governance Courts' View

24 October, 2011

By Sardar Kalim Ilyas

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Good Governance is to have accessibility, accountability, predictability, transparency, participation, consensus, efficiency, effectiveness, inclusiveness and ethics, as held by Mr. Justice Syed Mansoor Ali Shah in 2010 PLC (CS) 266-LHC. Courts have always been mindful of the fact that they have an extremely important role to play to ensure Good Governance in the country. Today, the Courts seem to be more sensitive and reactive on the issue than ever before. It has been realized that 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. As a first step, 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.

Only that Government Servant can play a positive role in Governance who has a sense of security that no adverse action would be taken against him or his carrier in Government Service would not be adversely affected only due to non compliance of illegal orders of his superiors or political bosses. Courts have provided complete protection, in a number of cases, to Government Servants where the Government Servant shows courage to refuse compliance of illegal orders or superior authorities. In a judgment PLD 1995 SC 530, Supreme Court observed that a Government Servant was expected to comply with only those orders and directions of his superiors which were legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from superior authority nor it could be defended on the ground that its non compliance would have exposed the Government Servant to the risk of disciplinary action.

In case of contractual employment also, the courts have provided protection to contractual employees against a standard clause in employment contracts that provides a right to the Government to terminate the contract without assigning any reason. Lahore High Court in Division Bench Judgment 2011 LHC 642 declared the said clause in violation the Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 as the same was considered liable to be used in a discriminating manner. The Court held that the clause did not stand the test of due process (Article 4), Fundamental Rights (Article 9, 14, 25), Rule of Law, reason, logic, ethics and Good Governance. A portion of the said Lahore High Court judgment is as follows:

"…While the modern world moves towards accountability and transparency, the "No Reason Clause" reminds us of unfettered, unmufflered and unchecked discretion. Such a clause has no place in a constitutional democracy, which rests on the supremacy of the rule of law. "No Reason Clause" can be a recipe for corruption, mismanagement, nepotism and jobbery. Foundations of good governance are based on reasons, accessibility, accountability, transparency, participation, consensus, inclusiveness, efficiency, ethics and responsiveness. The said clauses therefore ex facie lack the requirement of fairness and procedural due process thereby offending Article 4 of the Constitution. The said clause is also facially discriminatory besides being liable to be used in a discriminating manner thereby violating Article 25 of the Constitution. Reliance is placed on "Dr. Mobashir Hassan v. Federation of Pakistan and others" (PLD 2010 SC 1) and "Government of Balochistan v. Azizullah Memon" (PLD 1993 SC 341)…"

While providing the Government Servants complete protection against any adverse action for not complying with any illegal order of their superiors, the Courts have also emphasized on their duty to act strictly in accordance with law, rules and regulations. Political Heads are not expecated to have in depth knowledge of laws and rules, and deep understanding of complications of administration. These are the Government Servants responsible for advising them properly and ensure compliance of applicable laws as well as judgments of Courts on any particular issue. In PLD 2007 LHR 191 where the appointments of two convicted persons as Advisers to the then Chief Minister was challenged, Lahore High Court observed:
"…It is unfortunate that no Government/State functionary ever took notice of the appointments of these persons as Advisors to the Government of Punjab. Even the Bureaucracy, which is presumed to be the cream of the-nation, ignored and acquiesced over these appointments. To my mind, the then Chief Secretary Punjab before issuing notifications of appointments of these persons was duty bound to bring these facts to the notice of Chief Minister and apprise him about the legal complications. The Chief Secretary could have consulted the principal Law Officer of Province…"

When it comes to the use of discretionary powers of Government Servants, the Supreme Court has provided clear guidelines and instructions for Government Servants to ensure Good Governance. Discretionary powers have to be used by the Government Servant reasonably, with the application of mind, following the rules of justice, fairness and openness. Supreme Court held in a human rights case 2010 SCMR 1301, "It is a settled principle of law that object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different articles including Articles 4 and 25. Once it is accepted that the Constitution is the supreme law of the country, no room is left to allow any authority to make departure from any of its provisions or the law and the rules made thereunder. By virtue of Articles 4 and 5 (2) of the Constitution, even the Chief Executive of the country is bound to obey the command of the Constitution and to act in accordance with law and decide the issues after application of mind with reasons as per law laid down by this Court in various pronouncements."

The importance of Government Servant's ability to guide the superiors properly and courage to refuse to comply with the illegal orders of their bosses remain the most important aspects of Good Governance. Supreme Court held in PLD 1995 SC 530, "It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."

Good Governance is largely dependant on an upright, honest and strong bureaucracy. Succumbing to each and every order or direction of their superiors or elected persons without bringing to their notice legal infirmities in such directions/orders may some time not be justifiable on the plane hierarchical discipline. Every Government Servant must keep in mind at all times that even the Chief Executive of the Country is not above the Constitution.

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