Without disbanding PAS & PSP and merging them into theirprovincial streams, these reforms will prove another eyewash
Pakistan has been stumbling on civil service reforms. Such reforms are a requisite for ensuring service delivery and good governance and for establishing the writ of the state. Being a part of the civil service myself, I have been writing on the theme from a legal, administrative and practical aspect.
Leaving the historical perspective aside, I propose here to comment on the ongoing process of reforms. The reform committee is led by Dr Ishrat Hussain and has experts from various sectors. In our meetings with Dr Ishrat Hussain, we always emphasised the need to bring the services in conformity with the constitution, which is the source of all administrative structures.
Other matters relating to updating recruitment mechanism, merit in postings, trainings, objective performance evaluation and marking the best only for right placement and promotion are agreed upon by all the stakeholders.
Article 240 (a) and (b) of the 1973 constitution pertain to the structure of civil service. The framers of the constitution have explicitly designed civil service on the principles of administrative federalism. Article 240 (a) has authorised the parliament to regulate the federal and All-Pakistan Civil Service in terms of appointments and other terms and conditions for all the posts which are in connection with the affairs of federation. Article 240 (b) has mandated the provincial legislature to settle terms and conditions of the civil service in connection with the affairs of the provinces.
Federal and provincial domains for legislation and executive authority flow from the Federal and Provincial Legislative lists. All the functions enumerated in the Federal Legislative List and departments/authorities/ entities made thereunder are the domain of the parliament and federal government accordingly; whereas the remaining functions and powers are the domain of provincial legislatures and governments. Article 142 (a) and (c) have specifically barred the two legislatures from intervening in each other’s subjects and emphasised that they shall have jurisdiction over the subjects enumerated in their respective legislative lists only.
According to the constitutional scheme of civil service, there arise three types of services: federal and All Pakistan and Provincial Service. The first two are to be regulated by the federal government and the third by provincial governments. The Federal Legislative list is the basis of establishing federal departments and then hiring civil servants for them as per Article 240 (a). The provincial departments and government entities with civil service are based on the provincial subjects as enumerated in the constitution.
Federal Legislative List-Part 1 deals with the matters that are purely the mandate of central government having 53 items pertaining to defence, foreign affairs, federal finance, commerce and federal law etc. It’s the mandate of the federal government to establish departments and regulate a civil service for these entities. Federal Legislative List-Part 2 enumerates 18 items that are to be dealt with by the Council of Common Interests. Articles 153 and 154 define the same including the establishment of a CCI Secretariat.
Since the Concurrent List has been abolished through the 18th Constitutional Amendment, the only subjects which require an All Pakistan Service are those enumerated in the Federal Legislative List-Part 2.
The provincial subjects and all the entities established under them, including the civil service are the mandate of the provincial governments. The federal government cannot exercise authority over the provincial subjects which is the exclusive mandate of the provincial assemblies and cabinets. Articles 97, 121, 129, 137 and several others reinforce the administrative federalism. The fundamental problem lies with non-compliance to the constitutional scheme of civil service and violation of these clauses to arbitrarily take over parts of provincial governments through unlawful measures.
The Federal Public Service Commission recruits officers through CSS for managing various entities which are being dealt by the federal government. However, the Establishment Division has arbitrarily established two cadres which go beyond the mandate of federal government and trespass on provincial jurisdictions.
The Pakistan Administrative Service (PAS) and the Police Service of Pakistan (PSP) are two such establishments. They not only encroach upon the provincial affairs, but have monopolised the provincial governments, despite the fact that they are recruited and managed by the federal government. The Establishment Division has illegally allotted a large share for their PAS officers in the provincial government through an unlawful formula known as Apportionment Formulae 93 (minutes of a meeting chaired by a caretaker prime minister, Moeen Qureshi, with only PAS Officers present).
While they are posted to provinces, PAS officers manage district administration, health, education, planning and development, all purely provincial areas that are meant to be manned by the Provincial Civil Service. Provincial civil servants are thus barred from vital policy making positions.
The secretaries to the governments in many important provincial departments including Health, Education, Planning and Development and Revenue are federal employees belonging to PAS. Even the office of chief secretary has been monopolised and no PCS officer is allowed to hold it. It is this that perpetuates the monopoly and deals with the federal government on behalf of the provincial government.
The same goes for provincial police, which has been hijacked by the federal police at the top level although law and order has been a provincial subject even before the 18th Amendment.
The federal government has arbitrarily undermined the provincial governments by managing it directly through PAS officers. The chief minister and the provincial cabinet hold the executive powers for provincial functions, yet the PAS and PSP officers are not accountable to them being federal employees. In cases of gross misconduct they are merely sent back to Islamabad.
The legitimate cadres for the provinces, i.e. the PCS and the PMS are sidelined even in their own provinces. The provincial legislatures have been approached several times with the request to assert their authority under Article 240 (b) and direct the executive to delete the clauses arbitrarily included in the PMS rules containing the Apportionment Formulae 93 as it is in conflict with the Civil Servants Act 1973 and Article 240 (b) of the constitution.
However, PAS officers holding key positions have been lobbying against the demand. Even when the federal government wants to give the impression that provinces are being consulted, in practice they only consult their own officers holding the top positions in the provinces. The Supreme Court of Pakistan too has been approached on this subject.
To have the rule of law in the country, we need a lawful civil service structured in line with the constitutional arrangement. The way forward is to correct past wrongs instead of attempting to legitimise those. The current government has got a historic opportunity for course correction. Superficial and cosmetic measures won’t solve the problems if the structural issues remain un-attended.
Now, the federal government is trying to offer induction of provincial civil servants into Pakistan Administrative Services. It should be the other way around. The PAS need to be merged into PMS in the provinces, if required. The PAS cadre needs to cease at the federal level.
An attempt has also been made by the Police Service of Pakistan to induct provincial police officers into the PSP. However, law and order is a purely provincial subject and not a mandate of the federal government in any way. Hence, PSP officers should be inducted into provincial police and the cadre abolished at the federal level.
The PAS and the PSP are not All Pakistan Services. These are federal cadres meant to manage federal affairs. An All Pakistan Service is where officers are hired to manage the affairs mentioned in Federal Legislative List Part-2 under the Council of Common Interests. The PAS and the PSP do not fit in. Maintaining federal cadres to manage provincial affairs is a blatant violation of the principles of administrative federalism.
PAS and PSP officers are recruited against provincial quotas. They may be adjusted accordingly into the PMS and the Police Service in their respective provinces. The FPSC may recruit only for the service groups meant for federal departments, which include the Office Management Group, Customs, Foreign Services and Commerce. Administrative services and police service should be left to the provincial governments to regulate.
The federal secretariat is being managed by officers from the Office Management Group. A National Executive Service should be created for all policy-level positions, which may be filled by a competitive process from the federal cadres as well as the provincial services, technical cadres and the private sector.
If the PAS and the PSP are not disbanded and merged with their provincial streams, these reforms will prove another eyewash.
The writer tweets @fahadikramqazi1