By Tariq Mahmood Awan
After a brief introduction to the history of civil services in Pakistan, I am contending the five fundamental rules to reform civil services in the republic of Pakistan. These include;https://republicpolicy.com/five-rules-of-civil-service-reforms-part-1/
- Constitutional alignment of services
- Structural alignment of services
- Cadre management of services
- Code law of the civil services
- Terms and conditions of the services
Rule No 1. Constitutional Alignment of the Services
The Constitution is the body of doctrines and practices that form the fundamental organizing principle of a political state. In some cases, such as in the United States, the Constitution is a specific written document. In others, such as the United Kingdom, it is a collection of documents, statutes, and conventional practices that are acceptable as governing political matters. States with a written constitution may also have a body of traditional or customary practices that may or may not be considered constitutional. Virtually every state claims to have a constitution, but only some governments conduct themselves in a consistently constitutional manner. Hence, it is a nation’s political contract and the land’s supreme law.
Pakistan has a chequered history of constitutional development. However, the argument shall remain hovered after the 18th amendment. As they say, brevity is the soul of wit; therefore, the opinion shall remain precise and delicate. Chapter XII (Miscellaneous) and Chapter 1 (SERVICES) provide the guidelines for the appointments to service of Pakistan and conditions of service. Chapter 1 contains three specific articles which determine the nature, scope and structures of posts and services.
Article 240 reads as follows;
240 Appointment to service of Pakistan and conditions of service.
Subject to the ConstitutionConstitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined-(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All- Pakistan Services, by or under Act of [Majlis-e-Shoora (Parliament)]; and
(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
Explanation.- In this Article, “All-Pakistan Service” means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of [Majlis-e-Shoora (Parliament)]
The article provides three types of services and posts.
- Federal services and posts connected with the affairs of the Federation.
- All Pakistan services and posts in connection with the Federation and provinces’ common affairs.
- Provincial services and posts connected with the affairs of provinces
Then, most significantly, these services and posts shall be under the act of relevant legislatures. The first constitutional obligation to create services is that these must be created out of an organic act. Let’s interrogate whether existing civil services are the product of legislation or enactment. Presently, there is a federal civil servants act, and provincial civil servants acts are in place to determine the terms and conditions of the civil servants. Establishment Division and Provincial Services and General Administration departments claim that the acts are the product of Article 240 and thus; cover the constitutional obligation to create and sustain civil services alongside relevant posts. However, it is a ridiculous claim. They must know that the terms and conditions of civil servants have nothing to do with the creation of civil services. Article 240 provides lifeforce for the creation of civil services on aligned posts, not determining the terms and conditions of civil servants, which is structurally a byproduct of the creation of civil service. Then, the byproduct of the terms and conditions of civil servants is creating civil services out of executive orders. It is the ridiculous interpretation ever. Inherently, the acts must envisage the creation of civil services and then the terms and conditions for civil servants may have a lifeforce from these jurisdictional acts under article 240. Hence, the service without organic acts lacks constitutional and legislative support. Therefore, most federal and provincial civil services are illegal and lack constitutional support.
It is even more ludicrous that the reformers in Pakistan reform the civil services on the structures already illegal and unconstitutional. The first measure to reforming a civil service is to enact it. Where is the enactment? A civil service reformer must ask this fundamental question before initiating the reformation process. Then, reforming means substituting, inserting, replacing or superseding the act of the service. How can it be possible that reform products in Pakistan have been mere SORs and summaries? Whatever the reform product is, it must be enacted as the elemental obligation to reform civil service in Pakistan. Hence, the act is the life force of civil service and service without an act is illegal and unconstitutional.
The other Part of the constitutional alignment is the implementation of federalism. Pakistan is not a unitary state. How can unitary SROs reform the federal structures of civil service in Pakistan? To understand the federalism of the state of Pakistan, one must read schedule IV of the Constitution. Schedule four of the Constitution provides the federal legislative list.
Federal Legislative List
1. The defence of the Federation or any part thereof in peace or war; the military, naval and air forces of the Federation and any other armed forces raised or maintained by the Federation; any armed forces which are not forces of the Federation but are attached to or operating with any of the Armed Forces of the Federation including civil armed forces; Federal Intelligence Bureau; preventive detention for reasons of State connected with defence, external affairs, or the security of Pakistan or any part thereof; person subjected to such detention; industries declared by Federal law to be necessary for the purpose of defence or for the prosecution of war.
2. Military, naval and air force works; local self-government in cantonment areas, the Constitution and powers within such areas of cantonment authorities, the regulation of house accommodation in such areas, and the delimitation of such areas.
3. External affairs; the implementing of treaties and agreements, including educational and cultural pacts and agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan.
4. Nationality, citizenship and naturalization.
5. Migration from or into, or settlement in, a Province or the Federal Capital.
6. Admission into, and emigration and expulsion from, Pakistan including in relation thereto the regulation of the movements in Pakistan of persons not domiciled in Pakistan; pilgrimages to places beyond Pakistan.
7. Posts and telegraphs, including telephones, wireless, broadcasting and other like forms of communications; Post Office Saving Bank.
8. Currency, coinage and legal tender.
9. Foreign exchange; cheques, bills of exchange, promissory notes and other like instruments.
10. Public debt of the Federation, including the borrowing of money on the security of the Federal Consolidated Fund; foreign loans and foreign aid.
11. Federal Public Services and Federal Public Service Commission.
12. Federal Pensions, that is to say, pensions payable by the Federation or out of the Federal Consolidated Fund.
13. Federal Ombudsmen.
14. Administrative Courts and Tribunals for Federal subjects.
15. Libraries, museums, and similar institutions controlled or financed by the Federation.
16. Federal agencies and institutes for the following purposes, that is to say, for research, for professional or technical training, or for the promotion of special studies.
17. Education as respects Pakistani students in foreign countries and foreign students in Pakistan.
18. Nuclear energy, including:-(a) mineral resources necessary for the generation of nuclear energy;
(b) the production of nuclear fuels and the generation and use of nuclear energy, and
(c) ionizing radiations [; and]
19. Port quarantine, seamen’s and marine hospitals and hospitals connected with port quarantine.
20. Maritime shipping and navigation, including shipping and navigation on tidal waters; Admiralty jurisdiction.
 22. Aircraft and air navigation; the provision of aerodromes; regulation and organization of air traffic and of aerodromes.
23. Lighthouses, including lightships, beacons and other provisions for the safety of shipping and aircraft.
24. Carriage of passengers and goods by sea or by air.
25. Copyright, inventions, designs, trademarks and merchandise marks.
26. Opium so far as regards sale for export.
27. Import and export across customs frontiers as deemed by the Federal Government, inter-provincial trade and commerce, trade and commerce with foreign countries; standard of quality of goods to be exported out of Pakistan.
28. State Bank of Pakistan; banking, that is to say, the conduct of banking business by corporations other than corporations owned or controlled by a Province and carrying on business only within that Province.
29. The law of insurance, except as respects insurance undertaken by a Province, and the regulation of the conduct of insurance business, except as respects business undertaken by a Province, Government insurance, except so far as undertaken by a Province by virtue of any matter within the legislative competence of the Provincial Assembly.
30. Stock exchanges and future markets with objects and business not confined to one Province.
31. Corporations, that is to say, the incorporation, regulation and winding- up of trading corporations, including banking, insurance and financial corporations, but not including corporations owned or controlled by a Province and carrying on business only within that Province, or cooperative societies, and of corporations, whether trading or not, with objects not confined to a Province, but not including universities.
[32. International treaties, conventions and agreements and International arbitration.]
34. National highways and strategic roads.
35. Federal surveys including geological surveys and Federal meteorological organizations.
36. Fishing and fisheries beyond territorial waters.
37. Works, lands and buildings vested in, or in the possession of Government for the purposes of the Federation (not being military, naval or air force works), but, as regards property situate in a Province, subject always to Provincial legislation, save in so far as Federal law otherwise provides.
39. Establishment of standards of weights and measures.
41. Elections to the office of President, to the National Assembly, the Senate and the Provincial Assemblies; Chief Election Commissioner and Election Commissions.
42. The salaries, allowances and privileges of the President, Speaker and Deputy Speaker of the National Assembly, Chairman and Deputy Chairman of the Senate, Prime Minister, Federal Minister, Ministers of State, the salaries, allowances and privileges of the members of the Senate and the National Assembly, and the punishment of persons who refuse to give evidence or produce documents before committees thereof.
43. Duties of customs, including export duties.
44. Duties of exercise, including duties on salt, but not including duties on alcoholic liquors, opium and other narcotics.
47. Taxes on income other than agricultural income;
48. Taxes on corporations.
49. Taxes on the sales and purchases of goods imported, exported, produced, manufactured or consumed [, except sales tax on services]
50. Taxes on the capital value of the assets, not including taxes  on immovable property.
51. Taxes on mineral oil, natural gas and minerals for use in the generation of nuclear energy.
52. Taxes and duties on the production capacity of any plant, machinery, undertaking, establishment or installation in lieu of any one or more of them.
53. Terminal taxes on goods or passengers carried by railway, sea or air; taxes on their fares and freights.
54. Fees in respect of any of the matters in this Part, but not including fees taken in any court.
55. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list and, to such extent as is expressly authorized by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers.
56. Offences against laws with respect to any of the matters in this Part.
57. Inquiries and statistics for the purposes of any of the matters in this Part.
58. Matters which under the Constitution are within the legislative competence of Majlis- e-Shoora (Parliament) or relate to the Federation.
59. Matters incidental or ancillary to any matter enumerated in this Part.
2. Mineral oil and natural gas; liquids and substances declared by Federal law to be dangerously inflammable.
3. Development of industries, where development under Federal control is declared by Federal law to be expedient in the public interest; institutions, establishments, bodies and corporations administered or managed by the Federal Government immediately before the commencing day, including the [Pakistan Water and Power Development Authority and the Pakistan Industrial Development Corporation] ; all undertakings, projects and schemes of such institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation.
5. Major ports, that is to say, the declaration and delimitation of such ports, and the Constitution and powers of port authorities therein.
6. All regulatory authorities established under a Federal law.
7. National planning and national economic coordination including planning and coordination of scientific and technological research.
8. Supervision and management of public debt.
10. Extension of the powers and jurisdiction of members of a police force belonging to any Province to any area in another Province, but not so as to enable the police of one Province to exercise powers and jurisdiction in another Province without the consent of the Government of that Province; extension of the powers and jurisdiction of a police force belonging to any Pronvice to railway areas outside that Province.
11. Legal, medical and other professions.
12. Standards in institutions for higher education and research, scientific and technical institutions.
13. Inter-provincial matters and co-ordination.
14. Council of Common Interests.
15. Fees in respect of any of the matters in this Part but not including fees taken in any court.
16. Offences against laws with respect to any of the matters in this Parts.
17. Inquiries and statistics for the purposes of any of the matters in this Part.
18. Matters incidental or ancillary to any matter enumerated in this Part.
Then, the subjects not enumerated in the FLL Part I or II are residuary subjects, and various courts have adjudged that these residuary subjects are provincial subjects. Hence, schedule IV of the Constitution provides power distribution between the Federation and provinces. The Federation of Pakistan is a unique federation as it allows for a common platform between the Federation and provinces, namely the Council of Common Interest. Article 153 forms the CCI, and article 154 provides the functions of the CCI. Moreover, Article 142 (2)(b) provides criminal law, criminal procedure and evidence as concurrence between the Federation and Provinces. Hence, schedule IV provides three types of jurisdictional powers and article 240 also provides three types of services. Therefore, federal services shall be raised on federal subjects, and All Pakistan services shall be raised on CCI and concurrent subjects, whereas provincial services shall be raised on provincial subjects alongside their inseparable domain posts.
Article 241 reads as follows;
241 Existing rules, etc., to continue.
Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government.
It expressly explains that all rules must be in line with the existing structure of the Constitution. Hence, all rules, including the CSP rules of 1954, must be consistent with the Constitution’s provisions. Then, It is ridiculous that all reforms in Pakistan have been mere extensions of SROs with retrospective effect. It is just a subversion of the Constitution and attracts article 6 of the Constitution. Therefore, civil service reforms mean implementing article 241 of the Constitution. Issuing SROs without application of the Constitution is not a process of civil service reforms but rather a subversion of the Constitution. Furthermore, article 97, read with 137, determines the executive authority of the Federation and provinces. Thus, the federal and provincial executive authorities must remain in their domains. As executive authority takes birth from a legislative authority, and article 142 determines the legislative authority, there must be an alignment between legislative and executive authority alongside financial authority, as the latter is protected in articles 121 and 81 of the Constitution.
Lastly, article 242 is critical to understand the recruitment of civil servants. It reads as follows;
242 Public Service Commission.
(1) [Majlis-e-Shoora (Parliament)] in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to affairs of a Province, may, by law, provide for the establishment and Constitution of a Public Service Commission.
[(1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President [on the advice of the Prime Minister] .
] [(1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on the advice of the Chief Minister.
](2) A Public Service Commission shall perform such functions as may be prescribed by law.
It is also essential that federal and provincial public service commissions must recruit according to the affairs of the Federation and provinces. How can the federal public service commission recruit for the provincial post of assistant commissioner, assistant superintendent of police and assistant account general of a province? It is a foremost constitutional obligation that FPSC and PPSCs must work in their domain. It is at the beginning of the civil service reformation that the reformers must implement all the constitutional articles in the structures of civil service reforms. If the reform process cannot implement the fundamental principles of the Constitution, how can it claim to reform the civil services?
Concludingly, the constitutional principles of constitutional authority must be in place for the just creation and reformation of civil service in Pakistan. However, sadly, the civil service reforms have been an eyewash. The above-referred constitutional principles are rule number 1 to initiate the process of civil service reforms.
To be continued.