Draconian Law to Remove Civil Servants Arbitrarily

Quaid-e-Azam, Muhammad Ali Jinnah, while addressing a group of civil servants in April 1948, shared the following words:

“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.”

In this context, the questions that arise are:

  • Can an officer in government service act without political pressure?
  • Can a civil servant secure important posts without first assuring loyalty to the government of the day?
  • Do the existing laws and systems allow an officer to not fall prey to pressure or victimization?
  • Can an employee without security of tenure take any action without fear or favour?

Based on my personal experience as a lawyer specializing in service laws among other areas, the answer to these questions is a resounding “NO”.

Whether a person is a government employee or judge, for any officer to act fearlessly and honestly, an essential prerequisite is security of tenure. Unfortunately, successive governments in Pakistan have tried their best to suppress upright officers in one form or the other to get them to adhere to their demands when in power.

The entire process of promotion of senior bureaucrats is already shrouded in mystery, taking place behind the closed doors of a body known as the Central Selection Board (CSB). It is now common knowledge that to be promoted to a higher grade (BS-20 and above), the key qualifying requirement is to be on the right side of the government. This happens despite there being several judgments of the Supreme Court on structuring the unfettered discretion of the CSB, but to no avail. All politicians worth their salt speak about injustice and reform when they are in the opposition but forget about meritorious promotions and appointments as soon as they are in power. The standard strategy is to appoint as many like-minded or supportive officers to higher posts when in power and victimize the ones who are perceived to apply their own independent minds while taking key decisions. Our problem is that the system is stacked in favour of the high and mighty, so anyone in power does not like upsetting the ‘apple cart’ while enjoying the status quo.

The said trend has taken a turn for the worse with the federal government notifying the Civil Servants (Directory Retirement from Service) Rules, 2020. The underlying theme of the law is to remove any senior government employee without assigning proper reason i.e. in an arbitrary, unreasonable and unconstitutional manner.

Prior to the 2020 Rules, a civil servant could only be removed for ‘gross misconduct’ and that too after due process. However, the newly notified law empowers the federal government to remove officers:

  • who have received average evaluation reports by seniors (an average report is not an adverse report though),
  • who have not been promoted twice (by the same government, for no fault of their own), or
  • whose conduct has become ‘unbecoming’ (this term has no definition).

It appears that the 2020 Rules have given unfettered powers to the government to remove any officer it does not like. This is in an absolute violation of fundamental rights guaranteed in the Constitution. The new law has not even been debated within Parliament and has been notified through a process which has bypassed the Assembly. In a nutshell, the government can easily remove officers even if they have committed no misconduct and have been working rather diligently. Their only fault would be refusing to give in to the unwarranted clamour of the rulers.

With such draconian laws in place, would it be asking too much of an officer to take the moral high ground and refuse the spurious demands of those in power? With the ‘sword of Damocles’ hanging over the head of honest officers, it would be foolish to expect them to take tough decisions which may not please their political masters.

For Pakistan to prosper, we need, among other things, fearless and valiant officers. The Prime Minister or superior courts should give short shrift to such unconstitutional pieces of legislation and set them aside.

The existing state of affairs can be most aptly summed up in Habib Jalib’s words:

“Aisay dastoor ko,
Subh e bay noor ko,
Main naheen maanta,
Main naheen jaanta.”

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Haris Azmat

Author: Haris Azmat

The write is an Advocate of the Supreme Court of Pakistan and Partner at Kilam Law. He tweets @harisazmat1 and can be reached at [email protected]