A judgment the government should listen to

We can only hope that the verdict delivered by the Supreme Court on Wednesday on the issue of the promotion of 54 senior civil servants will not lead to yet another confrontation between the judiciary and the government.

Given that the executive authority for promotions and transfers lies with the prime minister it may well be construed by certain quarters as a slap in the government’s face, especially since the prime minister had taken the lead to ward off potential conflict the first time around.

Those who subscribe to this view will also, in all likelihood, believe that the judgment interferes with the working of the civil bureaucracy and is a case of unnecessary and undue judicial activism. However, let’s take a look from the other side.

Governments in Pakistan – and the present one is no exception – have often used the discretion available to them in the matter of appointments of officials in a manner that negates the very spirit of transparency and merit.

This view holds that such appointments were done purely on merit and had all those promoted been deserving candidates then perhaps no grievance would have been felt by the officials not promoted and no judicial intervention would have occurred.

It is precisely in this context that we would tend to take a favourable view of the judgment: for the simple reason that perhaps the promotions of 54 senior bureaucrats was done in such a manner – notwithstanding the fact that they were directed by an authority no less than the prime minister – that it would be best to undo the whole process.

The judgment will hopefully be taken in a positive light by the executive and any similar en masse promotions will be avoided in future. There is also the argument of what becomes of a civil servant who is not as experienced as someone more senior but is very good in terms of skills and academic qualifications.

Our suggestion would be that if at all discretion is to be used, then it be exercised in such instances and not to reward civil servants who are seen as favourites or, say, who are implicit supporters of the ruling party. In any case, the court’s ruling that the use of discretionary power should not be encouraged makes perfect sense because discretionary power often tends to be abused.

And that is precisely why those countries which limit its use – or outlaw it altogether – score high marks on efficiency and governance. At this point, we may also suggest that perhaps the apex court may take up the issue – at some point in time – of what constitutes discretionary power. It is abused perhaps because it is amorphous and not clearly defined and maybe this needs to be done.

Asking the apex court to do this may not seem an altogether impracticable suggestion because the head of the judiciary in the country – the chief justice of Pakistan – also has discretionary powers vested in his office and these were exercised in recent appointments where a judge of the Lahore High Court who was next in line to be that court’s chief justice was instead promoted to the Supreme Court.

Again, taking the contrary view, it could be argued that the chief executive of the country – who also happens to be the leader of the house in the National Assembly – should have enough authority to appoint and transfer civil servants as he sees fit.

But then the guiding principle should not be personal but rather the interest of running the government and various ministries in as fair, efficient and transparent a manner as possible. Add to this the argument – and a cogent one – that the prime minister should have the power to select his own team, much like what happens with the office of the US president.

There, however, all cabinet-level appointments have to be approved by the Senate, which means that Congress gets a major say and can in fact refuse the president’s choice. We do not have such a system in place here and hence the Supreme Court’s verdict in this particular context should be welcomed.