By Tariq Mahmood Awan
Fundamental Rights of Civil Servants and Dictatorial Conduct Rules
It is the inviolable obligation of every citizen to remain obedient to the constitution & law as per Article 5 of the Constitution. Appointment to service of Pakistan and conditions of service are regulated by part XII chapter 1 (Services) of the constitution of Pakistan. The intent and spirit of administrative reforms by Mr Zulfiqar Ali Bhutto were instrumental in the restructuring of civil services. Therefore, articles 240,241,242 were incorporated explicitly into the constitution of Pakistan to regulate the terms and conditions of the services through an organic law. Thus, organic legislation of the exact legislature will determine all conditions, terms, and regulations under an organic law. Thus, Federal Civil Servants Act 1973, Punjab Civil Servants Act 1974 and other Provincial Civil Servants Acts were enacted in constitutional obligation to article 240. Hence, article 240 of the constitution abolished the constitutional guarantee & put services under an organic law.
Federal and Provincial Civil Servants Conduct rules, incorporated in the sixties from the constitution of 1962, are against Article 240 & thus are unconstitutional on the face of it as these take their powers from Articles 178 and 179 of the 1962 Constitution, which is a repealed law now. The governments can’t save these rules under Articles 241 and 268 as repugnant to Article 240. Furthermore, it is pertinent to mention that rules, policies and other delegated law-appertained posts connected with the affairs of provinces can only be enforceable if derived from Provincial Civil Servants Acts specifically. Similarly, the federal conduct rules can only take lifeforce from the federal civil servants act 1973. Therefore, it is a constitutional requirement to make conduct rules under the Provisions of federal and provincial civil servants acts. It is illegal that the federal and provincial conduct rules take lifeforce from the constitution of 1962.https://republicpolicy.com/five-rules-of-civil-service-reforms-part-1/
The constitution of 1973 is the hallmark of the constitutional development of Pakistan. It introduced the fundamental principles of federal-parliamentary governance. The 1973 Constitution familiarised the original concept of fundamental rights by incorporating articles 8 to 28. Moreover, article 8 unequivocally states that no law can be inconsistent with or in derogation of fundamental rights. These conduct rules must be consistent with fundamental rights protected in the constitution of the Islamic Republic of Pakistan. The rights like those of fair trial, the dignity of man and freedoms like those of movement, assembly, association, business, speech, information & non-discrimination in services require incorporation in the framing of conduct rules. However, they must be subject to regulated law.
Furthermore, provincial conduct rules construct a constitutional anomaly that is quite amusing. According to rule 2(a) of Punjab conduct rules, these rules will not extend to members of All Pakistan Service serving in connection with the affairs of a province. Is it not hilarious? It is like asking a bride to do whatever you want in the house of In-Laws as they will not evaluate her conduct under the conduct rules of In-Laws but on the domestic canons of the paternal home. The provincial government must apply the conduct rules of provinces on those working on posts connected with the affairs of a province as a constitutional obligation to achieve accountability, regulation & good governance. Several Constitutional & legal contradictions can be referred to, but the very core of illegality is framing conduct rules according to the constitution of 1962. The constitution of 1962 was centric and dictatorial, unlike the democratic constitution of 1973, with guarantees of fundamental rights. Hence, the constitution of 1962 is a repealed law, and the constitution of 1973 is an operational law.https://republicpolicy.com/five-rules-of-civil-service-reforms-rule-1/
The conduct rules need a reformation in legal, constitutional, economical and modern administrative compulsions. The world has changed, and we are still living in the 1960s. Is it common sense to conduct civil servants’ social, administrative and financial behaviour according to the constitution of 1962? Can Establishment Division and Provincial Services and General Administration Departments not amend or substitute these with modernized conduct rules ensuring transparency, merit and competitiveness? The federal and provincial conduct rules provide several social, administrative and financial regulations. The conduct rules provide that civil servants shall not receive gifts, foreign rewards, subscriptions, honours, lending, or borrowing. These further explain that civil servants shall not demonstrate ostensible and pompous life. They shall not participate in commercial activities nor do business, investment or trading. They shall neither do commercial activities individually nor collectively. Thus, they can not operate in companies, firms and organizations.
They can not hold public speeches or appear on television programs. They can not write in the newspaper or do editorial work. They can not form associations, clubs or partnerships. They will neither participate in politics nor become a part of social movements. They shall also refrain from reaching out to politicians for their terms and conditions of services. They are strictly prohibited from living beyond their means. They can not lend or borrow nor do private employment work or consultancy. Then, they need to declare all their means of property regularly.
Moreover, they can only marry foreign nationals or travel abroad with the government’s approval. They can not even do speculative business or investment. Apart from these restrictions, there are many other social, administrative and economic restraints upon civil servants. Hence, civil servants should perform only biological and official employment tasks.https://republicpolicy.com/five-rules-of-civil-service-reforms-rule-2/
Law reformers articulate that the enforceability of law is the primary requisite of applicable law. Then, conduct rules are inapplicable, which is why they are the worst regulations. How can conduct rules made and enforced by the constitution of 1962 remain applicable till now? The constitution of Pakistan provides fundamental rights to all citizens. Are civil servants not citizens of Pakistan? The subject to the law in the fundamental rights is only a process of regulation, not denial. It is absurd that governments have denied the fundamental rights of civil servants as citizens only because of the phrase “subject to law”. It is the worst interpretation ever of the constitution. To prove the point, I expound the article 17(2) of the constitution regarding Freedom of Association. It categorically states, “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party”. It categorically denies a civil servant from forming a political party or becoming a member. It means the constitution can only deny a fundamental right to a civil servant. Then, the constitution has not denied other fundamental rights to civil servants. Then, how can governments deny these to civil servants through illegal conduct rules?https://republicpolicy.com/five-rules-of-civil-service-reforms-rule-3/
About 4 million public sector servants form the best human resource in the country. How can a state curtail their talent and flair in all walks of life? No one denies that their primary obligation is towards their public job. It raises a fundamental question. If a civil servant performs his job up to the best productivity standards, what should he do in his leisure time? He should remain idle or do other work to contribute individually and collectively. Suppose he carries the best skills; should he not provide these skills to other societal organizations? The best thing is that government regulators take the best from the civil servants; then, they should be free to do all that fundamental rights allow them to do. The regulators of public civil service can not hide behind their incompetency, insolvency and administrative bankruptcy. Regulators must ensure no conflict of interest, leakage of information or advantage of the office arises to exploit the public interest. Then, regulators must provide the administrative structures to regulate, not ban, civil servants’ administrative, social, academic and economic life.https://republicpolicy.com/five-rules-of-civil-service-reform-rule-4/
Lastly, Pakistan has a ban syndrome than regulating assignments. Their only solution is to ban things. Why can they not regulate? Hence, conduct rules must incorporate all legal and fundamental rights of civil servants. We live in a communicational and democratic age, and the interaction of civil servants with common people is essential for good governance and service delivery. Then, how can governments disallow civil servants even to use social media? Courts in Pakistan have maintained that civil servants are best placed to work for law and the constitution. Thus, their fundamental rights are inalienable.https://republicpolicy.com/five-rules-of-civil-service-reforms-rule-5-concluded/
