Judgment Review
The Draft Civil Service Act
Cords and discords
M. Jashim Ali Chowdhury
While employment in the service of the State goes back to the Middle Age notion of serving a monarch, the modern civil service established at the eve of 21st century witnesses major transformations towards democratic systems governed by rule of law. Now to concerns about the cost of public services, there has been more persistent criticism of the quality of service provided and the failure to meet citizens' expectations in terms of access, equity, speed of service and effectiveness. Hence there is a worldwide wave of reforms in civil service legislations where Bangladesh cannot afford to be an exception.
A vacuum to be filled up
While Article 133 of the Constitution contemplates an Act of Parliament regulating the appointment and conditions of service of persons in the service of the Republic, no umbrella Act has been enacted till date. The Civil Service, Defence Service and Judicial Service are dealt on a piecemeal basis by some Acts of Parliament and many rules, regulations, policies and notifications etc issued by the executives. Hence the total legal regime suffers from a certainty crisis and it is almost impossible to bring out the exact volume of laws, rules, policies, regulations, orders, notifications, instructions etc regulating the area.The Ministry of Establishment has published a draft act in its website and welcomed public opinion on it. This write up intends to present the key features of the draft with some commentaries regarding its further modification.
Key provisions of the Draft
1. The commencement clause of the Draft Act indicates that it shall come into force on the date fixed through official gazette of the government (Section 1(b)).
2. Regarding the principles of service the draft Act sounds engaging. Section 7(1) embodies many principles of good governance which the members of the service are to observe while performing their duties. Which includes balancing of interests, neutrality, generosity, efficiency, accountability, professionalism etc. Sections 7(2) and 10(1) narrate the functions and duties of members of civil service concentrating mainly on serving the people and non-discrimination.
3. Section 5 divides the ranks and profiles of the Civil Service into three groups: Superior Rank (including 1st and 2nd Grade Officers), Senior Rank (including 3rd to 9th Grade Officers) and Junior Rank (including 10th to 12th Grade Officers). While the Civil Servants of the Superior Rank bear the policy making responsibility, the Senior and Junior Rank officers are expected to oversee their enforcement.
4. The most debatable issue in the Draft is the appointment process which seems to encourage nepotism to some extent. All the 1st Grade officers would be promoted from amongst the 2nd grade officers. Section 5(4) of the Act empowers the government to appoint 10% of 2nd grade officers on terms and conditions set out by it while the remaining 90% are to be promoted from 3rd grade Senior Rank officers. In the 9th grade of the Senior Rank 80% posts shall be filled up by direct appointment while the rest 20% shall be filled up by promotion from Junior Rank. All other grades in the Senior Rank shall be filled up by regular promotion. However, except the 3rd grade, the government may directly appoint 10% officers in 'technical or specialized' posts created in each grade of the Senior Rank (Section 5(5)). In Junior Rank the 12th grade shall be filled up by direct appointment (Section 5(6)) while 10th and 11th grades should be filled up by way of promotion. Here again the government may directly appoint 20% officers in 'technical or specialized' posts created in each grade of the Junior Rank.
5. Section 12(a) of the Act provides that recruitment tests for the direct appointment shall be conducted by the Public Service Commission. As a matter of principle the appointment would always be based on merit and qualifications (Section 12(e)). Job shall be permanent on basis of merit and departmental test results. Transfer and promotion also would be based on merit, suitability for the post and excellence of performance (Section 12 (f) (g)).
6. Section 15(3) provides that if someone fails in the promotional tests for three consecutive times he may choose voluntary retirement. If he fails for the fourth time government may compulsorily retire him without any notice.
7. In case of disciplinary actions, Section 20(2) of the Draft guarantees a right to hearing and a departmental proceeding without which no person in the service may be removed, dismissed or retired compulsorily. Section 21(3) provides that if any member of the civil service is convicted for upto three years for any offence not involving corruption and moral turpitude, the President may conclusively determine as to his continuance in service. In case of imprisonment for more than three years for any other offence or for any term for offence involving corruption or moral turpitude, the offender would be dismissed from service immediately.
The missing links
1. In light of our experience with the Ombudsman Act 1980, the commencement clause of the Draft may be the single cause for which the Act may be kept hanging indefinitely. There should not be any problem in giving a law immediate effect which has been passed after eliciting mass opinion and many thoughts and after-thoughts.
2. Given the alarming rate of civil servants' engagement with part time jobs and side businesses, there should have been a provision to the following effect: “Unless it is otherwise provided in the terms of his appointment or in any other law for the time being in force, every Civil Servant shall place the whole of his time at the disposal of the Government.” Such a provision is found in the Botswana Public Service Act 1998.
3. In almost every grade of the civil service ranks, the government may appoint a good number of officials on political considerations. A sort of spoil system is present almost everywhere in the world and sometimes it is useful as well. Without it, it will be difficult for a political government to execute its political agenda. However excessive scope of politicization we see in the Draft will surely spoil the spoil system itself.
4. The provision regarding dismissal on ground of conviction by court of law (Section 21) is not clear as to when the conviction should attract the dismissal. Logically the dismissal should follow the conviction by the court of first instance. A person with questionable disposition should not continue in the service on the excuse that his appeal is pending. Hence Section 21(3) should specifically provide that the dismissal would follow the conviction by the lower court specially when a civil servant may not even be sued or arrested without prior permission of the government (Section 21(2)).
5. The Civil Service laws of Srilanka Antigua, Barboda, Poland etc provide that the highest posts (Superior Ranks) in the civil service would be filled by parliamentary committees through interviews and examination of the civil servants service records. Under the Draft Act this power has been vested in the Executive. Introducing the parliamentary involvement in the appointment to the Superior Rank officials would poster democratic oversight over the administration.
6. The Draft Act gives a detailed list of duties and principles of services of the Civil Servants. There are provisions regarding the disciplinary proceedings as well. Another important supplement in this regard could be the protection for whistle-blowers. It is specific protection for persons drawing attention to suspected wrongdoing within the administration. To boost accountability within the framework of the Act, such protection for the whistle-blowers from victimization or discrimination on the ground of reporting a breach of duties could encourage anti-corruption drive a lot.
The initiative to enact a Civil Service Act is a commendable effort. Part IX of the Constitution dealing with the Service of the Republic gives a broad outline regarding the organization and principles of civil service. Now the proposed Act shall supplement the issues with greater details. The principal challenge after passing of the Act would be to bring the almost innumerable legal instruments regulating the area in conformity with the new law.
The writer is Lecturer, Department of Law, University of Chittagong.
