Ruling on a petitoin against the appointment of Ali Arshad Hakeem as chairman of the Federal Board of Revenue in 2013, the Islamabad High Court held it illegal and ordered the government to appoint a more suitable person in his place. The petitioner, Ashfaq Ahmed, was a grade 19 officer of the Board. The court noted that the appointment had been made without a competitive process. This was understood to mean that unless a career officer from the revenue services was promoted to the position, the job had to be advertised and the eligible candidates had to be examined by a selection committee.
The order made conspicuous sense, even though, strictly speaking, the position of the FBR chariman is not purely a civil service cadre position. There had been cases in the past of the job going to civil servants from other services as well as of appointment from the private sector. In every instance there had been dozens of career officers avaiable for appointment who were overlooked. It has been argued and stands to reason that such appointments are bad for morale.
The cases of Ali Arshad Hakeem and the recently appointed honorary chairman Shabbar Zaidi are similar. While management of the economy, including appointments to key positions, has political repercussions and should therefore be left usually to the discretion of the Executive, there has to be some legal control over the power of the Executive in appointing people to high ranking and powerful bureaucratic positions.
The American counterpart of the FBR chairman, the commissioner of the Inland Revenue, for example, is appointed at the instance of the US president. However,the appointment (for a five-year tenure) requires advice and consent of the Senate. This allows an independent Legislature to keep a check on the power of the Executive in appointing key state officials. In the UK, Her Majesty’s Revenue and Customs is headed by an executive chairman, the candidate is generally recruited from within the civil service because of the level of expertise required to perform the role. The selection can take months. The task is complemented through a commission that aids in the promotion of transparency and merit in public appointments. Similar commissions exist in India and Canada. Pakistan was once quite close to following the same model.
The armed forces are trusted with always having an adequte talent pool to allow capable leaders to be selected from within the services. Why should the FBR be any different? The question requires a convincing answer
In Khwaja Asif’s case of 2013, the Supreme Court of Pakistan had directed the then government to constitute a commission to ensure that all future public appointments were made on the basis of specified merit. The procedure was to apply to appointments in all statutory bodies, autonomous bodies, semi-autonomous bodies and regulatory bodies. A review petition was filed by the new government once Iftikhar Chaudhry was no longer the chief justice.
The Supreme Court then overturned the requirement for forming a commission with regard to the appointments of heads of these public bodies. The reasoning of the Supreme Court in overturning the decision was based on the constitutional provision vesting the power to make public appointments in the Executive branch of the government (Article 90) and the laws with regrd to these appointments.
The court essentially overturned its order to create a commission for public appointments based on a plain reading of the law where appointments had to be made by the Executive branch under criteria laid down by the Legislative branch. Where such guidance by the Legislature was missing all the court could do was sit on the fence. It has now been more than five years since the requirement of the commission was overturned, but unlike other parts of the world where either the Legislature or a commission acts as a filter on public appointments, the power of appointments in Pakistan is unfettered and arbitrary.
This results in obvious anomalies. On one hand a chairman is kicked out of office for lack of transparency in his appointment, on the other, another chairman can be appointed in the same way and go unchallenged. The prime minister is clearly not a monarch and his cabinet is not a council of the aristocracy.
Most of the appointments to public offices can be made at the instance of the prime minister or the cabinet. It is about time such unfettered powers are curtailed. It is high time that a statutory commission be created in Pakistan to examine the suitability of persons to be appointed to high public offices. The recommendations of such a commission should not be binding but must contain strong persuasive force and contravention thereof should require cogent reasoning.
The armed forces are trusted with always having an adequte talent pool to allow capable leaders to be selected from within the services. The foreign service has always been held to nurture within its ranks officers from which a foreign secretary is picked. Why should the FBR be any different? The question requires a convincing answer.
The writer is a freelancer