ISLAMABAD – If the executive does not comply with the law, the legislature must take action against arbitrary non-compliance, Chief Justice Iftikhar Muhammad Chaudhry said on Saturday. Addressing the delegation of civil servants at the Supreme Court, the CJP said two factors considered to be crucial enforcement mechanism of rule of law were political fragmentation and the public support for establishing and maintaining the rule of law.
“If the executive does not comply with law, the legislature must take action against arbitrary non-compliance. Where the legislature does not have the willingness or the power to react to illegal executive behavior, political fragmentation does not help enforcing the rule of law,” he said. The CJP said in systems as in Pakistan, 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 was of the view that if the general public wanted the executive to comply with judicial rulings, then the executive would have to comply with it 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 said.
He observed that an organised and professional civil service consisting of qualified, capable and efficient officers, belonging to various disciplines, was a sine qua non for good governance and efficient administration. The CJP said in its zeal to gain control over the civil service in the past, the executive acquired the 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 said the constitution provided a system of checks and balances, where under the judiciary has been given the power of judicial review of the executive and legislative action. He said the officers were not obliged to follow illegal orders of their superiors. “They have to take all the decisions according to their conscience and in accordance with the rules and the law, knowing well that they might have to suffer in the process,” he said.
He said it hardly needed mentioning that a government servant was expected to comply with only those orders of his superior which were legal and within his competence, compliance of an illegal or an incompetent order could neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the converted government servant to the risk of disciplinary action.
The CJP advised the trainee officers that they ought to be aware of political, legal and constitutional development in the country. “They needed to learn from the chequered history so that past blunders and mistakes are not repeated,” he added.
