Open Dillema: How to React to Illegal Orders from a Superior?

Rabrenović, Aleksandra and Kostić, Jelena and Matić Bošković, Marina (2018) Open Dillema: How to React to Illegal Orders from a Superior? In: Integrity and Good Governance in the Western Balkans. ReSPA, Danilovgrad, pp. 303-314. ISBN 978-9940-37-028-2

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Abstract

Public sector employees are required to respect the work discipline and perform their professional duties and delegated tasks and assignments, conscientiously and diligently. Conscientious conduct implies that they should comply with laws and secondary regulations in their work, and carry out their duties professionally and in the public interest. As the public administration is a hierarchical organisation, public sector employees have to follow the instructions of their superiors. In carrying out their duties, they are also required to comply with the rules of conduct specified in the Code of Conduct, if there is one.1 If, however, they refuse to follow the instructions and do not comply with the Code of Conduct, they may be subject to disciplinary sanctions and, in extreme cases, lose their job. As a result, public sector employees need to prove that any such refusal to follow instructions is justified by some exceptional and professionally unacceptable circumstances. A clear-cut situation in which an employee should not follow the instructions is when he/she is instructed to act against the legal requirements valid in a given case or against the Code of Conduct rules. In more general terms: when is a refusal to follow orders from a superior justified? It is justified in the case when a public sector employee receives an instruction or an order from the superior to act in a manner that is irrational, unethical, contrary to law or the public interest. These situations can cause an ethical dilemma as there is a contradiction between two opposite requirements: 1) to act contrary to the law, rules and regulations,and the moral values that public servants are obliged to follow, and 2) to respect and act in accordance with instructions given by their superior. Such a situation may force a public sector employee to choose either to stand up against the superior’s wrongful instructions and risk resentment or retaliatory reactions, or to follow up loyally the superior’s orders, even if they are wrong or even illegal. These situations may occur in all areas of the public sphere. Illegal superior orders are particularly common in the areas most vulnerable to corruption, such as procurement, recruitment, etc. Another situation that is even more difficult to handle is when the superior’s instruction is in line with the law, which may allow discretionary decisions, but is still immoral or clearly against more universal standards such as, for example, the fundamental human rights. Finally, a law may simply be wrong, for example, by including discriminatory provisions. In that case, there is a conflict between acting in accordance with the law and in accordance with universally accepted ethical standards. Should public sector employees comply with laws or regulations that are illegal? Is an illegal law conceptually possible? Which are the conceptual foundations to refuse compliance with illegal orders or illegal laws?

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