A line of action

The Chief Justice of Pakistan, Mr Justice Iftikhar Muhammad Chaudhry, has given civil servants a line of action whereby they may avoid the wrath of the courts at their actions. In his remarks to a delegation of civil servants, undergoing training at the National School of Public Policy, when they visited him on Saturday, he stated the doctrine that government servants were expected to comply only with those orders which were legal, as compliance with illegal or incompetent orders could neither be justified nor defended. Chief Justice Chaudhry told the delegation that civil servants being pressurized 'to obey illegal orders should put on record their dissenting note. He thus told the delegation both what view the Supreme Court was taking, and how it expected civil servants to handle the situation. First, the Court will judge actions by their legality, and 'orders will not be a defence available to civil servants. However, that defence would only be available if made part of the record, and it also makes civil servants sit in judgement over the legality of the orders they receive. That is the position in which they are already supposed to be, and by implementing an order they are supposed to be supporting its legality. The Chief Justices remarks gain significance from the governments reluctance to obey its orders. This is happening only because civil servants prefer to obey the orders of their immediate superiors, who are ultimately elected politicians, and the Chief Justices noting that civil servants have suffered by deprivation of the right of promotion, being thrown away from key posts and in certain cases removed from service in violation of rules and laws, has the corollary that obedient civil servants find themselves promoted out of turn, given key postings and retained in service even though they should leave according to the rules. The Chief Justices noting that, in our system of parliamentary government, the executive must necessarily have a majority in the legislature, gains significance from the realization he expressed, that the legislature was thus not the check on the executive that it is supposed to be. Though he did not say as much, the obvious corollary is that the judiciary has a larger role and a much greater responsibility to act as a check. Also left implicit was the need of the judiciary of civil servants noting their dissent. Otherwise, the judiciary would be left with no option but to make civil servants suffer along with the rest of their chain of command.

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