Saturday, January 12, 2013

The Girl With The Beadledom Tattoo Stirs Up A Hornet’s Nest

According to the media, Ms. Anita Turab Ali, a mid-career Pakistani civil servant (BS-19) has been suspended from service – in all probability for directly writing to the Chief Election Commissioner to intervene into the federal government’s planned recruitment for thousands of vacancies in the government ministries and attached departments in the run up to the elections, whilst a complete ban on recruitment had existed through the almost full 5-years term of the incumbent government.

The media has dubbed this as a ‘Jobs for Votes’ scam. The political system of Pakistan, which remains dominated by feudalistic-tribal-birâdrî interests, is unfortunately used to promising jobs and development works, doling out ‘pork’ to strong-men/god-men/women in various towns, hurriedly completing ‘Bridges to Nowhere’ and ghost projects, pampering the media and effectively buying votes prior to any elections. A change of mindsets of the candidates and the voters is still wanting. So the polls are often engineered a priori and the queues outside polling stations and the casting of votes on the polling day become more or less a façade, duping oneself and the election monitors or observers. While the need for electoral reforms is acknowledged and requires a separate discussion, this piece focuses only on the recent act of Ms. Ali.

Ms. Ali is now probably well-known for battling with the political elite such as her petitions in the Supreme Court against a government candidate for slapping polling staff on the polling day, for depoliticisation of public service (C.P. 23/2012), and on premature transfer of a federal secretary. While accountability and the rule of law are the essence of democracy and good governance, the issues chosen by Ms. Ali have raised eye brows in some quarters if she was indeed a lone crusader or part of a wider strategy by a particular group of civil servants to somehow regain their unfettered, unbridled post-colonial powers? Although it might be debatable that this group has been seeking innovative ways to resurrect its ghost, supposedly buried in Zulfiqar Ali Bhutto’s restructuring of federal services, separation of judiciary from the executive, restructuring of the police service and Musharraf’s local body system, this is apparently not relevant to Ms. Ali’s present stand and is also not the subject of this piece. We should listen to what is being said and not said here, not who is saying it and thus must not shoot the messenger.

The precise nature of charges against Ms. Ali under the relevant Rules and whether a charge sheet was actually served at the time of suspension or was it merely an executive order is/may not be known because of the nature of such departmental disciplinary proceedings, which could lead to minor or major penalties including dismissal from service. Nonetheless, it would require an injunction of the Court to quash these suspension orders, since at the maximum what might be questionable is Ms. Ali’s direct communication with the Chief Election Commissioner bypassing the proper departmental channels; however, even this shall not be tenable if the Constitutional privileges that Ms. Ali is entitled to are acknowledged and granted so by the superior judiciary.

Four points of law merit attention here: Firstly, assuming Ms. Ali’s suspension was an executive order, albeit issued on the direction of the ‘Authority’ by the Establishment Secretary in writing, and assuming that formal charges are yet to be framed by the ‘Authorised Officer,’ designated so by the ‘Authority,’ one may argue that an executive order which imposes a prima-facie penalty of ‘suspension from service’ in the absence of a formal charge sheet and without first hearing the public servant, regardless whether current service rules may permit so, is in fact a presumption and pronouncement of guilt before being proved guilty, a denial of the well-ingrained principles of Natural Justice, Audi Alteram Partem and due process, to Ms. Ali and so in conflict with the fundamental rights guaranteed in the Constitution. A malicious executive order and thereby a suspension of a public servant that violates principles of Natural Justice must stand void ab initio and without force, and any such archaic law, rule, custom or usage having the force of law, or an inconsistent vestige of the colonial past, that is in conflict with the fundamental rights guaranteed by the Constitution must also be ultra vires and unconstitutional.

Secondly, restraining public servants via vicious executive orders and dubious laws from acting morally and performing conscientiously as citizen-servants of the State creates a repressive and psychologically harassing workplace environment which violates the dignity of man/woman and is a potential breach of fundamental rights. The Supreme Court of Pakistan may like to define criteria for a legal test used by public servants and the government in resolving ethical dilemmas and conflicts of interests whilst in service and assuring adequate safeguards for a just, transparent and conducive workplace. The public servants must be enabled and the public service capacities be built to negotiate such trade-offs, say between an action as per morals, conscience and Constitution versus an action that may hinge on an archaic colonial law, rule or custom which is otherwise neither moral nor conscientious and contravenes basic freedoms and rights under the Constitution. Moreover, in the most likely absence of designated Integrity Commissioners/Ethics Officers in organisations and necessary staff trainings on resolving ethical dilemmas and conflicts of interests at workplaces, an otherwise norm in established democracies with higher standards of governance, the federal government would lack even the moral authority to proceed against Ms. Ali.

Thirdly, in writing to the Chief Election Commissioner, Ms. Ali has in a way exercised her right to freedom of speech and expression, as guaranteed to her by the Constitution. Prima-facie, the act of Ms. Ali is not contrary to the interest of the glory of Islam, the integrity, security or defence of Pakistan, friendly relations with foreign States, public order, decency or morality, or a contempt of court or incitement to an offence but rather a necessary conscientious expression to strengthen the rule of law and good governance and so lies within the broader scope of this basic right.

Fourthly, as is the norm in most established democracies, the parliament must act to enact a whistleblower protection legislation to encourage, support and protect individuals including both public servants and private citizens to disclose government or corporate malfeasance, without any fear of retaliation, reprimand, demotion, suspension, discharge, disciplinary action or a change in working conditions including but not limited to ostracism, job harassment, prejudicial reassignment and negative performance appraisals. Over 50 countries, including countries such as Ghana, Uganda and Malaysia, have already enacted legal frameworks to encourage public interest disclosures and protect whistleblowers. In fact, a whistleblower protection law is central to any effort to limit corruption, gross waste of funds, gross mismanagement, violation of any law, rule or regulation, abuse of authority, and significant and specific dangers to public health and public safety in a country. The Holy Prophet (pbuh) said: “O people! The nations before you went astray because if a noble person committed theft, they used to leave him, but if a weak person among them committed theft, they used to inflict the legal punishment on him”(Sahih Bukhari, Vol. 8, Book 81, Nr. 779). So, a single disclosure regime covering both public and private sectors, such as the Public Interest Disclosure Act of 1998 (U.K), could be a potential model for Pakistan, although the general trend around the world these days is for distinct legislations for the public and private sectors. To start with, a modest goal to protect public interest, good faith whistleblowers like Ms. Ali and others in the future can be more persuasive for the Court to advise and for the legislature to legislate rather than a grand aim of cleaning up the stables once for all. Pakistan does not want good faith whistleblowers like Ms. Ali to hold back but rather wants all upright public servants or private individuals to come forward and help reign in wrongdoings in their respective workplaces. Should the political government be reluctant in initiating such a legislation, the Supreme Court may like to advise the government to draft such a bill on priority, just as the Court had previously advised the federal government to promulgate the transplantation law in July 2007 to curb exploitative organ transplantation practices which then led to the passage of the “Transplantation of Human Organs and Tissues Act” by the parliament.

The Roman senator and historian Cornelius Tacitus is believed to have said, “the more corrupt the state, the more numerous the laws,” and Pakistan has a plethora of laws, often tailor-made for situations and persons to the extent that some would argue that ‘show me the face, I’ll show you the rule.’ It is, therefore, equally critical in the interest of transparency that the federal government embarks on this much-needed exercise to simplify and harmonize its zillion different laws, rules and codes, including service rules, and rescind/expunge all that are inconsistent with the letter and spirit of the Constitution and reminiscent of the colonial way of administration.

Today, the public service and its values need a renaissance to extricate the country out of the ongoing crisis of governance and limit the costs of misgovernance. A vibrant, efficient and effective public service is the backbone of a functional and prosperous state. However, there has been a progressive decline in the performance, productivity and work ethics of the civil service since 1947. It is now time that public institutions become more transparent and public officials more accountable to assure ethical governance within and without the system including the sticky questions like the formula for federal representation in provinces, deputation rules, conflict of interest rules, specialist bureaucracies for nation-building departments, whistleblower protection and pre-election recruitments or development spendings. Some of the critical reforms needed to restructure and revive the public service and assure good and ethical governance in the country have been discussed earlier elsewhere.

Recall that a public servant in the civil or military bureaucracy of Pakistan has rarely dissented with the unlawful commands or actions of a government in public. Those finer moments of integrity and character in public service have been barely few since 1947. In fact, the civil bureaucracy has rather tended to play a second fiddle to all governments, whether political or military, from apparently advising and administering to in effect ruling the post-colonial state. Few choose to get transferred to ‘safer’ positions, out of the limelight and line of fire, only to wait for their turns to return to the arena at an opportune time. So the civil servants in Pakistan may be, to an extent, as responsible for the progressive loss of civil service values, systemic inefficiencies, bad governance and their resulting predicament as the political and military governments they steered/continue to steer, with little or no dissent or disclosure of their wrongdoings. In this context, Ms. Ali’s reach out to the Chief Election Commissioner for a proactive intervention to fix the electoral process deserves a receptive ear by the civil society, a fair review by her superiors and a commendation by the Court.

It is, therefore, important for the superior judiciary to now protect Ms. Ali and encourage such whistleblowing and good faith actions by Good Samaritans in the public and private sectors who want to genuinely assist this nation that lies incapacitated and in peril, if Pakistan were to eliminate corruption and nepotism and establish rule of law and good governance in the country! 

So, Go Girl! This country needs more of you and like you!!

ps: The author/blogger is not related to Ms. Ali, nor has written this piece on any one’s behest.
pps: The author/blogger authorises anyone in Pakistan who wishes to use this piece, should it be of relevance, to supplement a petition on this issue at a relevant judicial or administrative forum.

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