May 13, 2010

Limits of discretion

The April 28 SC judgement may narrow down the space available to the prime minister for the execution of his government's plans

By Adnan Adil

The April 28 Supreme Court (SC) judgement that sets aside the promotion of 54 civil servants from grade-21 to grade-22 is yet another blow to Yousuf Raza Gilani's government, already grappling with a shrinking space for its authority. In its verdict, the SC has dwelt at length on the limits of discretionary powers to be exercised by the executive authority and has bound the prime minister to act within the boundary of rules and regulations. It seems that the elected prime minister may now end up with less power than a senior bureaucrat.

The Supreme Court has directed the prime minister (chief executive) to consider the cases of all the grade-21 officers for promotion in view of the court's observations in the judgement, and also to seek guidance from the rules framed in 1993, which were later rescinded in 1998. The SC said: "It would be in the public interest as well as for sake of fairness and justness if the rules rescinded on April 4, 1998 are re-enacted by the competent authority with any changes, modifications as deemed fit under the circumstances."

In 1993, Moeen Quershi, a caretaker Prime Minister, for the first time, had introduced rules for the promotion from grade-21 to grade-22 and made them such to facilitate the promotion of his brother, then a police officer in grade-21. In 1998, these rules were annulled. In fact the chief executives in the country always made promotions to grade-22 positions on their discretion keeping in view the compatibility of the civil servant with the executive authority and the policies of the government. It may happen that a senior civil servant could be competent and efficient but holds views and has personal leanings against the policies of the chief executive. For example, Zulfiqar Ali Bhutto came to power with an agenda to pursue socialist policies with which a large section of civil bureaucracy was not comfortable.

The concept of a totally politically neutral bureaucracy is a utopia that exists only in papers. The fact is the divide of the Left and the Right and the conservative and the modern is present in civil bureaucracy. The latent ethnic biases are also there which do not appear on the files of the civil servants. Had it not been true, ZAB would not have been overthrown and hanged by Ziaul Haq. A chief executive, especially an elected prime minister, has to take into consideration the fact that he has enough confidence and trust in a federal secretary, as he has to act as the chief executing authority of the government's policies.

That is why in many democratic countries, enough room is provided to an elected chief executive to pick and choose his senior bureaucracy so as to implement his programme and manifesto of the party. On assuming office, the US president makes more than 2000 key appointments in the bureaucracy under a system called 'Revolving Door Administration'. The underlying philosophy is that an elected chief executive should have the wherewithal to implement his programme and enforce his decisions. A competent but unwilling officer could ruin the whole scheme of the government. Ironically, in Pakistan Army, the Chief of the Army Staff (COAS) uses his judgement to promote major generals to the position of lieutenant general, and this process were never challenged in any court of law and never subjected to any judicial review.

Another issue is that senior officers who have a capability to take bold decisions and have energy to see their implementation are required on the top positions. In this backdrop, the 54 promotions made by Prime Minister Gilani served another purpose that they brought in young and dynamic officers who delivered on many fronts. For example, reforms in the Federal Board of Revenue (FBR) were pending for the last 10 years despite insistence from international donor agencies. The incumbent chairman of the FBR, who has now been demoted after the court verdict, put his foot down and implemented the reforms such as creating Internal Revenue Service against which the powerful Customs Group officers resisted a great deal but failed. Similarly, the officer made it possible to enforce a difficult decision of imposing the Value Added Tax (VAT).

In case rules are framed for the promotion in grade-22, the risk is that plum positions may go to such senior officers who are just months away from their retirement and they might not have the energy and willingness to take up difficult tasks. Unlike army where officers are retired on being superseded, the civil bureaucracy does not follow this rule. The officers in grade-18 and grade-19 who get superseded in one phase get promotions in the next round. The result is 80 percent of the civil bureaucracy is loaded with dead wood: officers who are neither competent nor efficient for top positions. Many of them develop a negative attitude and take pride in blocking every decision or file by resorting to petty rules or nitpicking regulations. It is almost impossible for an elected government to get a task done by these bureaucrats.

So far as the determination of merit is concerned -- on the basis of Annual Confidential Reports (ACRs) -- it is an open secret that in our society and the prevailing culture sycophancy more than competence and uprightness plays a major role in procuring good reports from the bosses. No wonder, corruption and inefficiency are so rampant in the executive branch.

Anyhow, now the SC has limited the prime minister's powers to pick and choose his team from amongst the senior bureaucracy and the hands of the prime minister are tied. While spelling out the limits of discretion, the Supreme Court refers to a 1990 SC judgement (Aman Ullah Khan and others versus The Federal Government). The said judgment had quoted Kenneth Culp Davis's work on the Administrative Law Text for structuring the discretion. In the words of Kenneth Culp Davis, the structuring of discretion only means regularising it, organising it, producing order in it so that decision will achieve the high quality of justice. The 1990 judgement had also said the seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure.

In its April 28 Judgement, the Supreme Court also holds that since the prime minister did not consider the candidature of the left-out officers, this tantamounts to the application of rule of pick and choose. According to the SC verdict, there was no transparency in the exercise of discretion by the competent authority. The Court also said that in the promotion of the officers the discretion had not been exercised reasonably and the principles set out to structure the 'discretion' were not followed.

Prime Minister Gilani has said that he would implement the apex court's verdict in the promotion case, implying his government would now frame the rules for promotion. Gilani's decision to follow the court directions might put him in good stead with the apex court, but it could also result in narrowing down the space available to him for the execution of his government's plans. In fact, the Gilani government is already under pressure from all sides. The apex court has been exercising judicial activism and has shot down several government decisions including the cancellation of LNG contract with a French firm. The implemented of the SC's orders for re-opening of the corruption references closed under the NRO could be one of the most politically troublesome issues for the prime minister. A hyperactive media scrutinising the nitty-gritty of the government and in cases acting as an active opposition further limits the room for the chief executive. The domains of foreign policy and defence policy are already outside the full ambit of the elected government and reside with the military establishment. In these circumstances, restrictions on having the federal secretaries of one's own choice would tie the chief executive's hands in a manner that has been unprecedented in the country's

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