Anyone scouring the newspapers in search of job opportunities is bound to have noticed the rather colourful advertisements placed by the government in recent weeks.
They seek applications from “dynamic and qualified full time professionals” for high-ranking posts across a range of sectors.
And should this person feel disheartened because he does not meet the criteria specified for these positions, he may be comforted by the thought that the frequency of such advertisements is likely to increase in the coming months.
This is not because the new government is necessarily keen on creating jobs but because the superior courts, by removing the heads of several regulatory institutions, have left it with little choice with respect not only to new but also existing appointments.
Judicial scrutiny of government appointments started more than two years ago, when the Supreme Court declared unconstitutional the reappointment of Syed Ali Raza as the President of the National Bank of Pakistan.
Whilst several more removals from key posts followed over the next two years — Ayaz Khan Niazi, Chairman National Insurance Corporation Limited (NICL), Adnan A. Khawaja, Managing Director OGDCL, the National Oil and Gas company, Tauqir Sadiq, Chairman, Oil & Gas Regulatory Authority (Ogra) — this drive gained particular momentum earlier this year.
Between them, the Supreme Court and Islamabad High Court, removed six officials in less than eight weeks: Chairman Federal Board of Revenue (FBR), Chairman Securities Exchange Commission of Pakistan (SECP), Managing Director PTV, Chairman Utility Stores Corporation, Chairman Pakistan Cricket Board and Chairman National Accountability Bureau.
In his recent judgment, issued in the case of Khwaja Muhammad Asif vs The Federation of Pakistan and others, it was the honourable chief justice himself who perhaps best articulated the reasons behind the vigilance and zeal of the judiciary in this regard.
According to him, government appointments, especially to positions in regulatory authorities, inasmuch as they were made without advertising the vacancies and often by converting ad hoc appointments into regular ones, were unconstitutional.
Persons “having connections with higher functionaries of the state” were preferred, “despite presence and availability of renowned, knowledgeable and reputable personalities”; the essential principles of due process and transparency were ignored and “favorites were appointed despite lacking merits to hold such posts/positions”.
The PPP government had certainly given the judiciary cause for grave concern. Three of its appointees had flagrantly dubious credentials: Ayaz Khan Niazi (NICL) had reportedly been the manager of a night club in Dubai; Adnan Khawaja (OGDCL) was an NRO beneficiary and therefore corrupt by definition, and Tauqir Sadiq (Ogra) was a holder of a fake degree.
What made matters worse is that each of them boasted connections with and protection of persons in the highest echelons of the government. It is perhaps unfortunate, however, that in validly reversing these excesses of the PPP government, the judiciary also removed from office, bureaucrats and professionals who were otherwise qualified for their positions.
Two examples that immediately come to mind and in fact bear surprising similarity to each other are those of Ali Arshad Hakeem, former chairman FBR and Muhammad Ali, former chairman SECP. Both Hakeem and Ali were fit and proper for the positions to which they were appointed.
Hakeem was a seasoned bureaucrat who had previously served as chairman Nadra and Ali was a gold medalist from IBA and had nearly 20 years’ of international experience of capital markets.
The statutes under which they were appointed did not prescribe a specific procedure, and both were appointed in accordance with the government’s established practice for such appointments; both were working to revitalise their institutions and cases against both were brought by disgruntled employees.
The courts, however, chose to ignore these factors and removed these men for what they viewed to be failure on the part of the government to follow due process in making their respective selection.
The decisions, however, have an interesting corollary. In entertaining petitions by dissatisfied employees, rather than simply dismissing these as being non-maintainable as they would have done in the past, the courts actively encouraged public-sector employees to bring cases against their management.
Some argue that this is likely to offer the employees greater job security. The danger, however, lies in the fact that this security will stem not from the employees’ ability to work but rather from their ability to hold the management hostage to their demands, who will in turn, be rendered virtually impotent against them.
It is important to emphasise that the aim of this discussion is neither to argue against the importance of due process nor to suggest that the ilk of Hakeem and Ali should be exempt from it.
The point here is merely to propose that given that the impact of these judgements extends to new as well as existing appointments, the requirement of due process be introduced in a staggered, more nuanced manner, which allows for regularisation of otherwise qualified personnel rather than merely mandating their removal.
Not only would this allow the government to distinguish between incumbents on the basis of merit and thereby to compensate for the dearth of merit and professionalism in the country, but would also protect institutions against those employees bent upon bringing an institution to its knees on the basis of their political clout or, indeed, rancour.
At any rate it is not yet clear whether the courts have succeeded in transforming the manner in which the government operates.
The Supreme Court in its decision in the Asif Khwaja case has mandated that all appointments to regulatory bodies be made upon the recommendation of an independent commission.
Rather than announcing such a commission, however, the government seems content with merely marking its advertisements with a bold red stamp which reads, “100pc Transparency.”
Perhaps the government needs reminding that it cannot use these advertisements as an eyewash to bring in its favorites.
Anything short of an objective appointment process, in accordance with the mandate of the superior courts, would merely create new, even subtler opportunities for corruption whilst the fate of professionals and the country’s institutions, remains hanging in the balance.
This article was previously published in Dawn