“Yes Boss!”...Obeying illegal orders from superiors: Guidelines for Civil Servants By Farrukh Dall

“You may even be put to trouble not because you are doing anything wrong but because you are doing right. Sacrifices have to be made, and I appeal to you, if need be, to come forward and make the sacrifice…”

(Quaid-e-Azam Mohammad Ali Jinnah to Civil Servants- speeches as Governor General of Pakistan 1947-48, Sang e Meel publications).

Although, Public officials shall be guided by ethical and administrative values and norms of universal validity which include adherence to law, justice, loyalty to state, honesty, truthfulness, reliability, equal treatment and to treat individuals with respect, however, the aim of this article is to examine what the proper legal norm should be on the subject of civil servants’ obedience to illegal orders of the superiors.

In Syed Nazar Abbas Jafri vs. Secretary to the Government of the Punjab and Another (2006 SCMR 606), Supreme Court of Pakistan held that the duty of public officers is to independently discharge their functions and not be influenced by “dictatorial misuse of powers” at the hands of political figures. The Court has also emphasized that the appointment and removal of civil servants is not to be politically motivated. Province of Punjab vs. Azhar Abbas (2002 SCMR 1). These decisions highlight the concept of a civil service which enjoys certain legal protections and is thus capable of performing its envisioned role as a law-enforcing institution.

The compliance of illegal orders of superiors is not justified on the basis of having been issued from higher authority as it is the law and Constitution which must be obeyed. Here it would be relevant to cite the judgment of august Supreme Court in Samiullah Khan Marwat vs. Government of Pakistan (2003 SCMR 1140) where it was stated: “….the exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey[ing] the command of law and the Constitution…” Furthermore, in the case of Iqbal Hussain vs. Province of Sindh (2008 SCMR 105) the Court held that “the compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law.” In case the subordinates are directed to implement an illegal order “they should put on record their dissenting note” (PLD 2010 SC 759). Similarly, illegal orders cannot be defended on the plea that these could expose the concerned government servant to the risk of disciplinary action (Zahid Akhtar vs. Government of Punjab PLD 1995 SC 530).

The civil service law in 27 member states of EU also provides the same norm that civil servants must observe hierarchical obedience, unless the order given is illegal. Civil servants are bound to adhere to the law and the constitution against illegal orders of the superiors. However, the superior Courts of Israel have taken a different view. Instead, they have simply applied the same legal rule to civil servants that has been applied to soldiers.

Unfortunately, in Pakistan, there was no shelter and protection of job to a civil servant who refuses to obey illegal orders of superior authorities and follow rules and merit. Appointments, transfers, postings, promotions and deployment of government functionaries are made mostly on political consideration and nepotism instead of professional competence, skill and suitability of the candidate. Government-owned corporations, autonomous bodies, financial institutions and local government departments are even worst. A schoolteacher in Sargodha was beaten up and his legs were fractured by an influential member of the ruling party and when the DPO took action, he was transferred to Gilgit. Waheeda Shah, an influential politician beaten a lady for performing her duties honestly. But after the guiding principles provided in Anita Turab case and in Waheeda Shah case, the apex court of the country has resolved the issue. We have gotten relief in many cases in favor of such aggrieved civil servants on the basis of same guidelines to secure the job of the civil servants who are ready and have courage to come forward and make the sacrifice on their Quaid’s appeal.

The author is an advocate by profession, president lawyer’s wing of Pti Islamabad and also the Chairman of Read Pakistan.

farrukhdall@hotmail.com

by webmaster@insaf.pk (tkiadmin)