Governance and law

Pakistan International Airlines (PIA) is not only in the national news but is also surfacing in international media as it is passing through an existential crisis. Not long ago, the honourable Supreme Court (SC) had passed an interim order allowing Air Marshal Arshad Malik to serve as the CEO of PIA with full authority. Ever since, he is riding on the strength of that interim order. The eyes of the society were fixed on the SC with a hope of streamlining the governance of public sector corporations by deciding the question of eligibility in accordance with law in a matter of appointments of the head of these bodies. As the SC judgment has now become a public document, one can comment on it in good faith. The moot point raised before the Sindh High Court (SHC) was that neither did Arshad Malik fulfil the educational requirements of the post nor did he have any relevant experience for the job. Furthermore, his appointment was in utter disregard of the principles laid down by the apex court in August 2018.

One of the honourable judges questioned as to how a person who had joined PIA on deputation could be appointed its CEO. It is pertinent to mention that the SC, in the case of Dr Musharraf Rasool, had declared his appointment as PIA CEO null and void. Even though Dr Rasool was professionally a very well accomplished individual, “violation of guidelines during his appointment procedure” was declared to be the fatal defect. If we compare and contrast both candidates, there is little comparison as Dr Rasool was highly qualified and experienced in economics and change management. Nevertheless, the only disqualification led to his ineligibility in terms of Pakistan International Airlines Corporation (Conversion) Act, 2016, Companies Ordinance 1984 and Public Sector Companies (Corporate Governance) Rules 2013 and the advertisement of the post.

The SC, in the same judgment, opined that the evaluation of the candidates had to be done on the “fit and proper criteria” which was laid out both in the Rules of 2013 as well as the Guidelines in the 2nd Schedule of the Guidelines, 2015. Therefore, candidates aspiring for the position of CEO must conform to the “fit and proper” test. “It has been emphasised by the SECP through various rules, regulations, circulars and pronouncements as well as the law for appointment against top management positions of public sector companies. Therefore, it is fundamentally important that evaluation of applicants for the said post, in terms thereof, is properly and meticulously conducted, in an impartial and unbiased manner.”

Based on the touchstone of Musharraf Rasool’s case, the obvious question that comes to mind is: why has a different view been taken in the Air Marshal’s case? Why the legality of the appointment has not been touched upon? Is it not that in an appeal against the judgment of the High Court, the SC examines where the High Court had erred in interpreting the law? A judicial review has been described as judicial power in action and also the practical aspect of the rule of law. Judicial power is the power of courts to administer justice in accordance with the law. The court’s function, in exercising that power, is to ensure that the public authorities do not act unjustly by overstepping their proper sphere.

All executive and administrative powers emanate from the Constitution and statutes made there under expressly or by necessary implication. Therefore, in an administrative action taken under a law, the question can be whether the authority acted within the four walls of law and has not exceeded or abused the power conferred by the law and has not therefore acted ultra vires. The question can also be whether the law giving him the power to act is constitutionally valid. In such a case the basic rule of constitutional law is that a constitutionally invalid or ultra vires law, be it the outcome of primary or subordinate legislation, is incapable of conferring any jurisdiction or power.

Article 4 of the Constitution of Pakistan also depicts the spirit of the rule of law by stating that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and of every other person for the time being in Pakistan. Under this the assumption is that judicial power is the power of courts to administer justice in accordance with the law. Under the doctrine of judicial review, the superior courts question whether administrative authority has taken an action according to law. If it is established that the authority has exceeded or abused the power conferred by the law then such an order is declared ultra vires. All jurists agree over the basic premise such as Professor Sir William that unfettered or absolute discretion is a “beguiling heresy” and those who argue that some enactment confers unfettered discretion are “guilty of constitutional blasphemy. Unfettered discretion cannot exist where the rule of law reigns”.

In the same vein Justice Fazal Kareem in his lecture on judicial review says that the courts, in the exercise of the power of judicial review, are not concerned with the general question of the goodness or badness of the impugned public action as their sole concern is the constitutionality and the lawfulness of the public action. The judgment, as reported in the newspaper, appears to have remained silent over the question of eligibility in accordance with the law and framing of the terms of reference of the advertisement, obviously so as it was an interim order to be decided on merit. The citizens still have a trust in the judiciary. This trust will be further strengthened if such cases of public importance are decided expeditiously.

Published in The Express Tribune, July 29^th, 2020.

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