By Tariq Mahmood Awan – Rule Four of the Civil Service Reforms: Reforming Code Law of the Civil Services
Rule Four of the Civil Service Reforms: Reforming Code Law of the Civil Services
In the legal context, codification is collecting and restating a jurisdiction’s legislation in prescribed areas, commonly by matter, into a law framework, like a codex or book of the law. In civil law approaches, codification is a compulsory element. Codification revises administrative and judicial discretions into statutory law in common law systems. With this characterization, civil law countries depend on codification processes.
It simply means to code or writes the law of discretion. Written laws are critical in the countries like Pakistan, which are maturing as nation-states. Coded or written law helps to remove inconsistencies, contradictions, and ambiguities in the legal system; hence, codification is essential for the rule of law. Professionals and the general public benefit from codification since it provides a unified source of information that is easily accessible and implementable. Thus, codification is gathering rules or laws to construct a logical code. Codification is a technique for converting judicial or administrative decisions or pertinent laws into codified law. Typically, the approach does not lead to the production of a new law. It codifies existing law, which is customarily by subject.
Pakistan is a coded society. Hence, all customary, discretionary and directory laws should have coded arrangements. Pakistan’s civil services are without coded laws and depend upon political, judicial and bureaucratic unwritten and uncodified laws. What to talk of coded law, even these are without substantive laws. Article 240 of the constitution provides the substantive law for creating civil service. So far, most of the civil services still need substantive laws. There are federal and provincial civil servants acts; however, these accord to civil servants’ terms and conditions, not establishing and executing the civil services. Firstly, civil service reforms should have substantive, delegated, and executive laws, and then these law regimes must be codified to provide fluency, transparency and translucency.
Civil services can not function without coded laws. Laws must furnish jurisdiction, competency, immunity and enforceability. The worst nightmare for civil servants is that they have to perform several tasks without law support or availability. The system functions on the discretion than coded law. Especially in field operations, no coded laws exist and administrative operations are carried out on administrative necessities and compulsions. Codification or systematization of law is compiling and restating a jurisdiction’s law in specific areas, typically by theme, to create a legal code. Coded law is critical to prevent municipalities or field administrations from implementing duplicated or inconsistent new regulations. Codification assists the civil servants in seeing the system of law as a collective operational dispensation and notices any shortfalls that may necessitate laws.
Civil servants in Pakistan perform their functions without substantive and codified laws. Unlike the judiciary, where the whole system hinges upon the coded law, the civil service operates in a legal vacuum. For example, irrespective of the constitutional argument, the officers of district administration in Pakistan need more support and power of coded law. The job description is the first part of the coded law of civil service. Then, what is the codified job description of a deputy commissioner in a district? He may be the district collector or the coordinating officer of the provincial government in a district. Then, he performs almost all local, provincial and federal government tasks. He neither has the jurisdiction, powers, resources, nor immunity to perform such tasks. Hence, the whole system expects him to perform all the tasks and punishes him for failure. How can a deputy commissioner function without the support of coded law? How can he perform as a district administrator, economist, agriculturist, industrialist, educationist and much more? How can he be the implementing machine of all the local, provincial and federal departments without the support of coded law? Therefore, this coded law vacuum has rendered the office of deputy commissioner ineffective, and resultantly no writ of the state exists. Hence, there needs to be an administrative and legal correlation between the deputy commissioner’s office and the coded operations law.
The argument does not favour supporting or keeping any office intact. The offices are administrative units. Administrative compulsions and innovations require creating, substituting, amending and overhauling the offices. The argument is that the administrative offices must have legal support by the coded law. All laws must be in writing and arranged to dispose of the operations of such offices effectively. The mergence of substantive law, delegated law and operation law into codification is the hallmark of a delivery system. Codifying laws does not mean creating complexities but ensuring smooth precision and arrangement of laws.
Further, it empowers and supports civil servants to perform all tasks of execution and implementation. Thus, civil service reform means incorporating and merging all the discretionary laws into the coded law regimes. Civil service reforms are a complex proposition. As civil service is the implementing machine of the legislature, political executive and judiciary, it requires a correlation among all these organs of the government. The only way the civil service can corroborate with all other organs is through codifying the laws. This codification shall deter the discretionary power of all these organs on the civil servants, and the latter shall perform their functions with organizational autonomy strictly in line with operational law. Discretion is not law; the only way it can be law is through codification. Civil servants must know that discretion has ruined their institution, and they have become extraneous. They must struggle for the codification of the law. They require coded support for enforceability, execution and implementation.
Consequently, the coded law is inseparable from civil service operations. The first task is a codification of law and discretion. The recodification processes should also follow it. Recodification refers to a process where existing codified statutes are reformatted and rewritten into a new codified structure. It is often necessary as, over time, the legislative process of amending statutes and the legal process of construing statutes by nature over time results in a code that contains archaic terms, superseded text, and redundant or conflicting statutes. Due to the size of a typical government code, the legislative process of recodification of a code can often take longer times. Coded civil service law provides fluency, precision and transparency in administrative operations. The application shall enhance the capacity of the system. It shall also ensure transparency among civil servants. How can civil service work without coded law?
In view of the foregoing, civil service requires two coded law classes. The first coded law class must harmonize the terms and conditions of the civil services. Then the second class of coded law must regulate the administrative operations of the civil service. Applying coded law in the jurisdictions, operations, limits, boundaries, and perimeters is critical for reforming civil service. Once the coded law defines civil service limits, it shall come out of the clutches of the legislature, political executive and judiciary. A governance system can only function with checks and balances. The coded law ensures it. Therefore, civil service reformers must incorporate the coded law, as a rule, no four to the cause of civil service reformation. Civil service needs empowerment and protection so that they can be held accountable. Accountability without authorization shall lead to failure.
What are the writ of a state and the role of civil service? “Writ of the government” means that the laws enacted by the government are implemented and that the civil servants in charge of implementing those laws are protected. Where there is no writ, there is anarchy because laws are not obeyed, and government-appointed individuals become powerless. Therefore, coded law is also essential for civil service to implement the writ of a state. The state must implement its writ with a codified civil service. Hence, rule no four regarding the coded civil service law is critical for reforming civil service. The civil service reformers in Pakistan never deliberate upon this vital issue of the civil service. How can civil service perform without coded protections and regimes?
More articles by Tariq Mahmood Awan: https://www.pakistantoday.com.pk/2022/10/15/reforming-the-syllabus-of-the-civil-services/