Islamabad, November 12, 2012 (PPI-OT):
Director General, Secretarial Training Institute;
Ladies and Gentlemen:
It is a matter of immense pleasure for me to address the gathering of officers who have been chosen to shoulder the responsibility to serve their nation.
I take the privilege to formally welcome you to the Supreme Court of Pakistan. Supreme Court of Pakistan is the apex court of the country. According to the Constitution of Pakistan, it has original, appellate, review and advisory jurisdiction to decide the matters.
The Constitution has given binding authority to the decisions of this Court on all the other Courts of the country. All the executive and legislative authorities are duty bound to act in aid of the Supreme Court of Pakistan.
It is customary on such like occasions to address the young officers about some fundamental values which they must adopt while beginning their career. You have to participate in the society by shouldering new responsibilities in near future Inshallah, which indeed would be an honour for you. But the honour and glory does not come alone, it comes only when you follow the path of duty. Calvin Coolidge, a lawyer and 30th President of the United States had rightly said and I quote:
“No person was ever honoured for what he received. Honour has been the reward for what he gave.” Constitution of Pakistan being supreme law of the land, defines the powers of all the organs of the State. It not only harmonizes their relationship but also provides for the basic structure of the governance.
Our Constitution is federal in nature and provides for the three pillars of the Parliamentary democracy. These pillars are Legislature, Executive and the Judiciary. Job of legislature is to enact laws, executive is to implement laws and judiciary has to interpret the laws.
In order to achieve the desired objectives all these pillars have to work smoothly within the domains provided by the Constitution. Our Constitution is blend of Islamic and democratic thoughts. In its preamble it is clarified that sovereignty over the entire universe belongs to Allah Almighty alone, and this authority is to be exercised by the people of Pakistan through its chosen representatives. People of Pakistan have to discharge the sovereign functions being trustees for these powers. Every public functionary is to use these powers in accordance with law and for the benefit of the society.
The objectives and aims of the Constitution are only achieved when citizens of the country imbibe the constitutional spirit and do conscious efforts to implement it. Indeed every person performing duties in any organ of the State is responsible to perform to the best of his/her abilities with full honesty and devotion, especially the civil servants who are public servants and they have to take decisions in the public interest only. In performance of their functions they are not liable to follow illegal orders received due to any extraneous influence. In this regard, they must remember the advice of Qaid-i-Azam Mohammad Ali Jinnah to the members of the civil service at Peshawar on 14th April, 1948 when he said and I quote:
“The reason why I wanted to meet you is that I wanted to say a few words to you, who are occupying very important position in the administration of Pakistan in this Province.
The first thing that I want to tell you is this, that you should not be influenced by any political pressure, by any political party or individual politician. If you want to raise the prestige and greatness of Pakistan, you must not fall a victim to any pressure, but do your duty as servants to the people and the State, fearlessly and honestly. Service is the backbone of the State.
Governments are formed, Governments are defeated, Prime Ministers come and go, Ministers come and go, but you stay on, and, therefore, there is a very great responsibility placed on your shoulders. You should have no hand in supporting this political party or that political leader-this is not your business. Whichever Government is formed according to the constitution, and whoever happens to be the Prime Minister or Minister, coming into power in the ordinary constitutional course, your duty is only to serve that government loyally and faithfully, but, at the same time, fearlessly, maintaining your high reputation, your prestige, your honour and the integrity of your service. If you will start with that determination, you will make a great contribution to the building up of Pakistan of our conception and our dream-a glorious State and one of the greatest nations in the world”.
Ladies and Gentlemen:
According to Article 29 of the Constitution of Pakistan, it is responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with the principles of policy, so far as they relate to the functions of the organ or authority.
The civil servants have been given very important role in the making and implementation of the policies. In performing their functions they must act according to the letter and spirit of constitution and the law. If every body is performing functions within the spheres and boundaries provided by the law then there is government of law and not of men in the society. Of course, rule of law– which is very important to achieve the objects of good governance. But all this mainly depends upon the proper and honest functioning of the public functionaries.
If there is any malfunctioning on the part of the public functionaries then to knock the doors of the courts for rescue remains the last option. The constitution in its Article 37 (d) makes its obligatory on the State to ensure inexpensive and expeditious justice. If the courts are dispensing justice impartially and expeditiously, then nothing can stand in the way of the nation to advance and move forward.
The rights of the people can only be safeguarded by the courts which are a place as a last resort. The courts in Pakistan have always strived for the protection of fundamental rights of the citizen. The civil service has always been considered as service of the State and not subservient to the whims of the executive organ of the state. Their primary duty is, and has always been, to be in the service of the people.
In various judgments of this Court the spirit of advice of our great Quaid is reflected. It has been held time and again that the government servants should comply only with those orders/ directions of their superiors which are legal and within their competence. I would like few examples in this regard, e.g. in the case of Zahid Akhtar v. Government of Punjab1, this Court observed that: “we need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government not 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 bureaucrat. Elected representatives placed as Incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration.”
To run the business of State smoothly, the Federal Government has framed Rules of Business, 1973 under the powers conferred by Articles 90 and 99 of the Constitution of the Islamic Republic of Pakistan. These rules provide comprehensive guidelines for smooth running of the business of the State. In this regard Rule 5, of the Rules of Business is very much important which deals with the transaction of the business.
Here I would like to quote sub rule 10 of Rule 5:
“5.. (10) When the Secretary submits a case to the Minister, the latter may accept the proposals or views of the Secretary or may over-rule him. The Secretary will normally defer to the decision of the Minister and implement it. In case, however, the Secretary feels that the decision of the Minister is manifestly wrong and will cause gross injustice or undue hardship, he may state his reasons and re-submit the case to the Minister. If the Minister still adheres to his earlier decision and the matter is important enough, the Secretary shall request the Minister to refer the case to the Prime Minister and the Minister shall so refer the case for orders of the Prime Minister. If the case is not referred to the Prime Minister, the Secretary shall submit it directly to the Prime Minister with observations of the Minister-in-Charge.”
Civil servants are also to be provided safeguard against illegal orders as in such situations, either they are transferred immediately before completion of their tenure or placed as OSDs or their promotional prospects are blocked. Extension is granted to retired officers in some of the cases without observing the spirit of rules governing such extension. Similarly, government officials are brought on deputation from other departments without following rules on account of political considerations and are subsequently absorbed causing frustration among the officers of the department.
I am happy to say that today, we have announced another important judgment in the Constitution Petition filed by Ms. Anita Turab2 for protection of the civil servants in the country. The Court has exhaustively discussed the issues concerning civil servants along with the precedents of this Court relating to appointments, removals, promotions, transfer, tenure, postings as OSDs and particularly on the matter of obeying illegal orders from superiors.
It has been laid down that “the responsibility of deciding as to suitability of an appointment, posting or transfer falls primarily on the executive branch of the State which comprises of both the political executive and civil servants. Courts ordinarily will not interfere in the functioning of the executive as long as it adheres to the law and established norms and acts in furtherance of its fiduciary responsibility.
However, while hearing this petition we have recognized the need for ensuring that decision making in relation to tenure, appointments, promotions and transfers remains rule based and is not susceptible to arbitrariness or absolute and unfettered discretion.” It has also been warned that, “In appropriate cases the failure of a state functionary to apply a legal principle which is clearly and unambiguously attracted to a case, may expose him to proceedings also under Article 204(2)(a) of the Constitution.”
It is duty of a bureaucrat, therefore, 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 and 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. It hardly needs to be mentioned here that 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 noncompliance would have exposed the Government servant to the risk of any disciplinary action.3 Similarly, in the case of Muhammad Afsar v. Muhammad Farooq4 this Court observed that, “The courts are duty bound to uphold the constitutional mandate and to keep the salutary principles of rule of law.
In order to uphold such principles, it has been stated time and again by the superior Courts that all acts should be done by the public functionaries in a transparent manner after applying judicious mind and after fulfilling all requirements.
The public functionaries are supposed to adhere to the principle of transparency in the performance of their duties and are not bound to carry out/ implement any order which is not in accordance with law and they are only obliged to carry out the lawful orders of their superiors and if they are being pressurized to implement an illegal order, they should put on record their dissenting notes.”
In order to establish an order in the society as desired by the Constitution, the command of law should be prevailed. Adherence to the principle of rule of law can surely solve our issues. I am sure you will discharge your duties in accordance with law and the constitution with honesty, devotion and spirit of patriotism. Before parting, I must say that:
“Patriotism consists not in waving the flag, but in striving that our country shall be righteous as well as strong.”5
I pray for your success in professional life. Thank you very much.
For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001