Legislature can take action against executive: CJP

ISLAMABAD: Chief Justice Iftikhar Muhammad Chaudhry has stated that support of masses became vital when the Executive did not implement laws.

Chief Justice observed that in case the executive does not comply with law, the legislature must take action against such arbitrary non-compliance.

Addressing a delegation of trainee officers of the National School of Public Policy Lahore, here on Saturday, the Chief Justice said that two factors were considered as crucial for enforcement of the rule of law - political fragmentation and the public support for establishing and maintaining the rule of law.

"In systems, such as ours, where the executive has the majority in legislature, the legislature may not induce executive to observe legal limits on their actions. In such a situation, the role of public support for judicial ruling becomes most valuable enforcement mechanism," he added.

He said if the general public wanted the executive to comply with judicial rulings then the executive would have to comply with the same while anticipating the electoral reaction.

"When people do not have trust in the national institutions, they tend to resolve their day to day problems through other means. This leads to anarchy in the country. Therefore, it is in the interest of nation to strengthen the institutions by strict and unequivocal recourse to the Constitution and law," he emphasized.

About role of bureaucracy, he said an independent bureaucracy meant a civil service which was not beholden to executive.

He said even if the executive had no costs for forming illegal policies, the civil servants had preference for working on legal policies mainly for the reason that they have different time horizons.

"There is possibility that the executive government may not be in office in future to provide protection to them against their illegal actions. They have to serve under future elected government that might have a different policy view. The uncertainty over who will control the government in the future makes them more reluctant from implementing an illegal policy," he added.

The Chief Justice told the trainee officers that a permanent principle of bureaucracy was to maintain mutual respect and follow the orders of superiors but on the other hand, the officers were not obliged to follow their illegal orders.

About rule of law, he said it required both citizens and government officials to be made subject to laws.

"However, even an independent judiciary cannot guarantee that government officials necessarily abide and respect rule of law. The institutional solution to induce executive compliance with the law is to entrust the power of defining the legal limits of executive actions to courts of law. However, an independent judiciary itself cannot solve the fundamental problem of enforcing compliance with laws and legal rulings," he added.

Enumerating role of civil servants in country's history, the Chief Justice said in the early days of independence, the standard of civil service was fairly high and its performance was better. The use of political influence or any other external pressure was out of question.

The officers had the courage and the wisdom to give their independentopinion, without any fear or favour. With the passage of time, however, things started to fizzle out, he added.

He said during the tenure of Ghulam Muhammad and Iskandar Mirza, thestandard of civil service deteriorated, primarily on account of their involvement in political matters.

"In its zeal to gain control over the civil service, the Executive acquired control over the power of transfers, posting and extensions, which has placed the officers of civil service at the mercy of their political masters," he added.

He said such like transfers, postings, out of turn promotions, suspension, denial of promotions demoralized the honest and diligent officers. Resultantly, there was tendency that the officers would become more loyal to the Executive and the ruling political party than the state of Pakistan.

He said the Supreme Court, having been bestowed with the important role of overseeing the executive actions, had come to their rescue from such political victimization.

In many cases the officers wrongfully dismissed from service, had been re-instated. In cases where officers were deprived of their legitimate right to be considered for promotion, directions were issued to the authorities concerned for their consideration and many of them got promotions, he added.

He further said the Constitution of Pakistan provided the system of checks and balances, where under the judiciary had been given the power of judicial review of executive and legislative action.

Articles 199 and 184 of the Constitution ordained the High Courts and the Supreme Court respectively, to ensure protection of the fundamental rights of the citizens, he added.

About role of judiciary he said "While deciding the cases involving the infringement of the fundamental rights, the approach of the courts should be dynamic rather than static, and flexible rather than rigid. It is not new or novel for the courts to exercise the powers of judicial review."

He said the Constitution of Pakistan 1973, provided mechanism for the distribution of powers between various organs of the State, and also defined their limitations so that one organ might not encroach upon the legitimate domain of the other.

"The Constitution is supreme and all organs have to remain within their allotted sphere. The exclusive domain of legislature is to make law. The judiciary is entrusted with responsibility to decide cases according to law and further to ensure that all branches of the State are functioning within their jurisdiction and is also invested with the powers to intervene whenever any State organ exceeds its prescribed limits," he added.

If all the institutions of state performed adequately and the rules and regulations were followed strictly, the recourse to litigation would be minimized and the work load of accountability bodies and the courts would be significantly reduced, he opined.

The Chief Justice also advised the traineee officers by saying that being officers of the civil service they ought to be aware of political, legal and constitutional development in the country.

They needed to learn from the chequered history so that the past blunders and mistakes could not be repeated, he added.