Justice Iftikhar Chaudhry said the rule of law required both citizens and government officials to be subject to laws. — File Photo

ISLAMABAD: Chief Justice Iftikhar Mohammad Chaudhry said on Saturday bureaucrats were not obliged to follow 'illegal orders' of their superiors and instead they must abide by their conscience and the law.

The Chief Justice referred to what he called a “permanent principle of bureaucracy” to maintain mutual respect and follow the orders of superiors, but said that “on the other hand officers are not obliged to follow illegal order of their superiors. They have to take all 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”.

Justice Iftikhar Chaudhry said the rule of law required both citizens and government officials to be subject to laws. “However, even an independent judiciary cannot guarantee that government officials necessarily abide and respect the rule of law.”

He said the universal solution to induce executive compliance with the law was to invest the judiciary with the power to define legal limits of executive actions, but added that the judiciary itself cannot solve the fundamental problem of enforcing compliance with laws and rulings.

An independent bureaucracy meant “a civil service not beholden to the executive”, the Chief Justice observed. “Even if the executive has no costs for forming illegal policies, the civil servants have a preference for working on legal policies mainly for the reason that they have different time horizons. “There is a possibility that the government may not be in office in future to provide protection to them against their illegal actions. They have to serve under a future elected government that might have a different policy view. “The uncertainty over who will control the government in future makes them reluctant to implement an illegal policy.”

Another important factor, he added, which could restrain civil servants from implementing illegal decisions was the impact on their career opportunities.

The chief justice cited “political fragmentation” and public support as crucial factors for an efficient mechanism to enforce 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 behaviour, political fragmentation does not help enforcing 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.

“If the general public wants the executive to comply with judicial rulings then the executive will have to comply with the same while anticipating the electoral reaction.”

The Chief Justice said when people lost trust in national institutions, they tended to resolve their problems through other means. “This leads to anarchy in the country. Therefore, it is in the interest of the nation to strengthen institutions by strict and unequivocal recourse to the Constitution and law.”

Justice Chaudhry said the 1973 Constitution provided a mechanism for the distribution of powers between state organs and defined their limitations so that none encroached upon the legitimate domain of the other.