By Tariq Mahmood Awan
The province of Punjab is facing a political turmoil for a few months creating a friction between political chief executive and head of bureaucratic executive. Consequently, incumbent chief secretary of the Punjab wrote an official letter to the Establishment division to withdraw his services from the province of Punjab. The letter of withdrawal put the government of Punjab in an awkward position who in knee jerk reaction sent a proposal to the Establishment division containing a panel of officers to appoint the chief secretary. The proposal of Punjab government is still in limbo but the marriage of inconvenience between parties remains solidly consumable.
Existing mode of appointment of chief secretary is an administrative riddle extending a colonial custom . It comprises a consultative process between prime minister and chief minister or their authorized persons. This arrangement purely depends upon an agreement supposedly reached between federation and provinces in the early part of independence. This agreement is the foundation of creating civil service of Pakistan CSP and subsequent composition and cadre rules in 1954. Section 15(4) of ibid agreement governs the process of appointing chief secretary. The ibid section of the agreement lays down the process of appointing chief secretary where due consideration shall be given to the proposal of provincial government. However, the final decision to appoint chief secretary shall be the discretionary power of the federal government. Hence, undoubtedly, the federal government maneuvers mode of appointment to her advantage on a post purely connected with the affairs of a province.
However, this mode of appointment depending merely upon an agreement requires serious legal and constitutional interrogation. Does the so-called agreement correspond to the provisions of existing scheme of constitution? Inherently, 18th amendment of the constitution has separated the legislative, executive and financial authority of the federation and provinces thus making present mode of appointment a constitutional challenge to the 18th amendment. How can federal government extend her executive authority on a provincial post bearing the provincial legislative, executive and financial authority?
Historically, the office of chief secretary was established in colonial India to lead the administration in a province in absence of empowered political executive. Therefore, it was only accountable to the secretary of state for India. Indian partition act of 1947 deleted all the provisions regarding the services of secretary of state for India. This deletion of the services should have allowed new born countries to raise services corroborating the scheme of new constitutions. unfortunately, dominion of Pakistan could not legislate the constitution. So, amid constitutional crises, a new service modelling on the colonial scheme of reserving provincial posts for central services was established by maneuvering of centralists.
Pakistan is a federal parliamentary constitution. Powers in a federation are distributed between federation and provinces whereas parliamentary form of governance produces the executive from the same legislature. Executive is the functional and implementing part of a government either political or bureaucratic. In democracies, it is the political executive who leads the bureaucratic executive. Political executive is the elected executive unlike bureaucratic executive who is the permanent part of the executive. No provision of the constitution nor legislation can take effect in defiance to the federal parliamentary nature of the constitution. it arises a fundamental constitutional question if political executive of the province is produced by the provincial assembly then how can bureaucratic head be produced by federal government? It simply requires that both chief minister and chief secretary of a province must be produced by the same legislature.
The argument draws a question who is constitutionally competent to appoint chief secretary? The post of chief secretary is neither federal nor a common post between federation and a province. It is a post connected with the affairs of a province in connection with article 240 (b) and Provincial civil servants’ acts. Executive, legislative and financial authority of the federation cannot extend to the post of chief secretary bearing provincial legislative, executive and financial authority. The provincial government is constitutionally competent to appoint the chief secretary from the service of the province. The present mode of appointment by the federal government through the disputed agreement violates the fundamental principles of the constitution.
It is necessary that provincial governments may enforce their constitutional prerogative to appoint chief secretary. The appointment by the provincial governments shall benefit the provincial administrative autonomy. The incumbent chief secretaries are federal civil servants and therefore not answerable to provincial governments. Federal government not only appoints a federal civil servant on a provincial position of chief secretary but also places a number of federal civil servants at the disposal of provincial governments. Chief secretary leads the battalion of federal civil servants who make a monopoly in the provinces compromising provincial interests.
Appointment of Chief secretary requires a constitutional alignment. The political and bureaucratic executive must correspond to the same legislature in a parliamentary governance. How is it possible that a provincial assembly create a chief minister but chief secretary is not created by it? There is a need to rectify this constitutional anomaly.
Executive part of the government should correspond each other. These constitutional and administrative anomalies lead to failing of governance and federalism. There is no model of governance available in the world where top bureaucratic executive is not accountable to the political executive. Provinces have long suffered from this scheme of reserving provincial posts for central services and there is an urgent need to corroborate it with the constitution. The best start will be to appoint chief secretary by the provincial governments from the services of the provinces.
Apart from constitutional anomalies, a parallel office to that of Chief minister is also administratively not required in a cabinet form of governance. Chief minister must remain the sole chief executive of the province. The forces of centralization should realize the importance of devolution in a federal form of governance. Provincial governments are required to appoint their chief secretaries in order to ensure governance and service delivery.