As per a recent decision of the Supreme Court, the promotion of 54 bureaucrats in BPS-22 has been annulled. Prior to this decision, the promotion of civil servants in the senior most grades was the discretion of the chief executive and there were no clearly laid down rules. The government has, in principle, accepted the decision of the apex court and is in the process of making amendments in the rules as suggested by the Supreme Court. The decision requires the government to record reasons for promoting certain candidates while ignoring others.

On the face of it, this requirement looks rational but many issues have come to the fore with this judgement. There is of course the matter of institutions being pitched against each other and this judgement too is seen in the light of executive-judiciary clash. Our analysts in today's Special Report have highlighted the importance of the chief executive's discretion in making the appointments of secretaries because his assessment is supposedly "a better guide than the officer's file".

This cushion is provided to the elected chief executive in many democratic countries and there are more than one reasons why it is so. Besides, in many other public and private spheres including the armed forces in our country, this discretion regarding promotions is available with the top boss. The analysts also note, as does the Supreme Court judgement by omission, that seniority cannot be made a rule for promotions because it has never worked.

Our bureaucracy, of course, has a peculiar history. We have tried to record that history in its evolution through various stages such as colonial, patronage, militarised and finally professional bureaucracy.

It is professional bureaucracy alone that can serve the cause of good governance. But given its history, where every institution at the helm has tried to mould it in its own fashion, one wonders if the bureaucracy is geared towards the right direction. And whether the Supreme Court is the right institution to give that direction? One also wonders if the recorded reasons, which may turn out to be highly subjective for obvious reasons, would suffice for all those who have been bypassed or whether they would lead to more court battles.

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

history.

The Civil Service Reforms (CSRs) in Pakistan have always been crucial, at least on paper, during the tenure of every government and on the priority list of international organisations. Dozens of committees have been formed over decades to look into the problem areas. They were supposed to suggest reforms in the civil services -- that can serve the citizens the best without putting heavy strains on the state's coffers. Even today the Government of Pakistan has established a Civil Service Reform (CSRs) Unit within the Establishment Division. As per details, this unit serves as Secretariat to the Cabinet Committee on Civil Service Reforms and monitors government's reforms programme.

When we talk about CSRs we are often vague and not sure what they exactly denote. In words of Dr Sania Nishtar, a researcher and activist, "the denotation of civil service reform in the reform jargon is not an isolated or a defined restructuring measure, but a set of locally-suited interventions centered on restructuring laws, codes of conduct, remuneration norms, institutional devices, and policy frameworks."

In her article on 'The Importance of Civil Service Reform' published in The News on Feb 27, she says, "By-and-large, administrative restructuring was used as a tool by many rulers for personal gains and political patronage in order to consolidate their bases. Over the years, therefore, a culture emerged where civil servants were patronised and promoted, not on merit but on perceived loyalty to their respective unnamed political affiliations."

So, there is no doubt that all the efforts made at CSRs have failed miserably or achieved limited success mostly outdone by the flaws inherent in them. Many research studies have been taken up at different levels to find out the reasons behind repeated failures of these CSRs initiatives. The findings were elaborate but the most common were the interventions by different organs of state into the affairs of civil bureaucracy and its use to rule the populace and not serve them.

Talking to TNS, Dr Nadeem ul Haq, ex-Vice-Chancellor, Pakistan Institute of Development Economics (PIDE), Islamabad refers to his concept paper 'Why Civil Service Reforms Do Not Work' published in 2007. He says, according to the concept paper available on PIDE:

"In many cases, the result was demoralisation and a further deterioration in the quality of government services as the public sector reacted to these strategic attacks on its recently expanded mandate in three ways: (i) by slowing down reform in critical areas to maintain its grip on resources; (ii) by seeking alternative means to make up for the real wage cut that public sector employees were experiencing: thus, "perks"-- legalised and non-transparent means of non-wage resource extraction -- became a major form of civil servants' emoluments while tolerance towards corruption significantly increased; and (iii) by the more skilled, less corrupt, and those seeking a more reform-oriented approach opting out of the public sector and, as opportunities shrank domestically, out of the country."

He says international financial and aid agencies have carried out CSRs in several countries but with very limited success. Public sector productivity remains low in many of these countries, wage bills high, and employment excessive despite these efforts.

Nadeem ul Haq writes in the same paper that Civil Service Reforms (CSR) acquired a certain prominence in development policy in the 1990s -- "More often than not, governments undertook CSR under budgetary pressure. Pressured by macroeconomic imbalances, many governments promised to cut the size of their bureaucracy on the advice of most international agencies. Experience has shown that even this limited objective was not achieved," he adds.

He suggests removal of non-cash perks because they are not related to job performances. Besides, they cannot be as large as other unrecorded perks. For example, in Pakistan, the major reward of public service is the provision of prime government-owned land at subsidised prices, he adds.

Concept paper 'Preference for Public Sector and Wait Unemployment' by Asma Hyder, Visiting Fellow, PIDE, Islamabad in 2007 mentions these perks to be the reason why the youth look for public sector jobs. She writes, "that the preference for a public sector job is perhaps influenced more by fringe-benefits and work conditions than by wage rates. For example, the most pronounced issue for preference for a public sector is working hours."

The paper states "public sector is committed to providing workers with reasonable hours of work, which must not exceed 48 hours per week. Workers must be provided with at least one day off in each seven-day period. Overtime work is a key issue for many enterprises, due to tight deadlines imposed by buyers, and the need to accommodate rush orders… Protection in the form of annual leave, sick leave, and special leave is determined by law in the public sector."

The decision of the prime minister to promote 54 officers to BPS-22 in one go not only provided amusement and drama to public but also embarrassed some very fine officers -- who would have been promoted anyway, under any rules and circumstances. Some of them are now reportedly considering resigning in the face of humiliation that they have had to suffer for no fault their own.

Promotions of 54 officers in one go was unprecedented and, therefore, attracted undue attention of media and public. Normally, 8 to 10 officers are promoted to BPS-22 at one time. In this case too it would have been prudent to announce the promotions in installments -- perhaps service carder wise, to avoid undue attention, and also to not demean the aura attached to the high grade.

The PM has always had the discretion to promote officers from BPS-21 to BPS-22 unlike promotion in the lower grades (except that prior to 2001 he used to be assisted by a Selection Board formed by himself). Promotions up to BPS-18 are based on 'seniority' and 'fitness' while promotions from BPS-19 to 22 are based on 'merit' and 'fitness'. So promotion as a right, based on seniority, does not exist to any grade above BPS-18. The requirement, however, is that each candidate must be considered and reasons must be given for ignoring him, which was apparently not done in the current case.

Discretion available to the chief executive is an accepted norm in all public administration principles. In the army, the COAS has absolute discretion to promote officers from Major General to Lt. General. Similarly, in the private sector, the board of directors or the major shareholder has the discretion to select the CEO. In the government also similar discretion has always been exercised. However since the pyramid at the top is flat it can accommodate a lot of BPS-22 officers -- and so we have had innumerable poor samples in BPS-22 in the past. This is probably why there have not been too many appeals in the court against injustices in promotions to BPS-22.

This time the scale of exercise gave the whole affair a profile and also resulted in its demise. A total of 267 BPS-22 officers were considered from all service groups, out of which only 54 were considered suitable for promotion. So against 54 happy individuals, there were 213 devastated officers, each one having more than 35 years in the government and with his or her own influence groups and lobbies.

When one looks at the statistics of winners against losers, service-wise, the situation is rather alarming. In Police Group, 9 out of a total of 41 officers were promoted. Likewise in Foreign Service, 5 out of 20; in the Secretariat Group, 10 out of 40; in DMG, 21 out of 63; in Income Tax, only 2 out of 14 were promoted and; in Audit and Accounts, 29 were considered and only 4 were elevated. The interesting common factor in each of these service groups is that the last man on each list was promoted over the heads of scores of seniors.

All this was bound to create a formidable lobby against the decision of the PM, making him rather unpopular with the bulk of the top bureaucracy. Some of the good officers promoted were themselves rather embarrassed at the large-scale slaughter of their seniors.

The rationale of selection given by the government -- i.e. gender balance, provincial representation, incumbents of BPS-22 posts being in BPS-21 -- was very cogent but was diluted by the sheer number of ignored officers and some glaring instances of double promotion of such officers who were not necessarily known for their competence. In some cases, there was also unprecedented induction into superior service groups -- thus hinting at excessive use of discretion.

Generally, denying an officer his promotion is a major penalty which is normally issued after a formal inquiry. Therefore, here the case of the government got seriously undermined because it recorded no justification for the officers ignored. Saying that officers ignored are not superseded and will be considered again, is hardly an argument which is likely to allay the sentiments of the ignored officers.

Now what should be the future course of action? Discretion is one power which should not be taken away from the chief executive of the country -- because often we get officers who are outstanding on paper because culturally we are a polite people and don't want to offend anyone and consequently give outstanding evaluations, when the officer actually deserves to be thrown out. As a matter of fact, the more incompetent and corrupt the officer is, the more energetic he is likely to be in pursuing his 'reporting officer' to give him a good report. At the end of the day, the PM has to make his choice to fill the policy-making positions of the government. He has to appoint competent officers, based on his own assessment and the officers' reputation -- which normally is a better guide than the officers' file.

The problem is: the PM is unlikely to know personally as large a number as 267 officers, as was put up to him this year. In the absence of any advisory body, as is currently the case, the matter gets into the hands of the few officers who are close to the PM or his personal friends and colleagues. That advice more often than not is subjective.

There is, therefore, a need to make rules which should lay down broad parameters of eligibility, an advisory board of sorts to advise the PM where he feels he needs assistance, so that the PM can select the best officers available.

Officers selected on other credentials than merit may provide some short-term gain to the PM (in terms of having obliged some important person), but one incompetent and corrupt officer at that level means the destruction of the whole ministry of the government -- a loss at the national level. Perhaps the new rules alluded to in the Supreme Court judgment can bring us a better crop of policy planners in the government and thus start a march towards the distant dream of good governance.

All types of governments -- whether elected or self-appointed and whether benevolent or autocratic -- require bureaucracies to govern countries. It is not in the nature of bureaucracies to offer corrections to governments on policies or even to inform priorities, merely to try and implement them as ordered. For bureaucracies anywhere process, not service, drives them. One cannot understand bureaucracies until understanding that for bureaucrats, procedure is king and that performance is for governments. And for a country like Pakistan, which has see-sawed between democracies and dictatorships, the evolution of bureaucracies has been forced and lateral, not natural and linear, with the result that little works and even files of the president and prime minister go missing somewhere between ministries.

It does not help that for a bureaucracy that has alternately conformed to diametrically opposed national priorities and agendas in Pakistan over the past few decades as politicians and generals have held sway over uncertain games of musical chairs for abrupt periods in power, the country's bureaucracy was an inheritance from the Raj era and designed for colonial duties in the first place, rather than service-oriented as in a welfare state. Not even the bureaucracy in Pakistan will contest the general perception that it is rusty and ineffective at best. At worst its capacity is severely diminished due to overt politicisation and corruption in its ranks and the abject failure to attract the best and the brightest of the country's citizens to it anymore.

Colonial bureaucracy

According to Andrew Wilder, who has recently researched the capacity of Pakistan's political institutions, including the bureaucracy, Pakistan's colonial heritage has heavily influenced its political culture as well as its bureaucratic and political institutions. The Indian Civil Service was designed to rule the British empire in this part of the world. While representative institutions were gradually introduced into colonial India, their role was advisory rather than policy-making, and to deal with local administrative matters rather than substantive issues. They were never intended to be democratic institutions that transferred power to elected representatives, but rather were designed to help legitimise and strengthen the authority of the bureaucratic state. The power imbalance between the strong bureaucratic institutions that Pakistan inherited from colonial India and the weak representative and democratic institutions has been one of the greatest causes of political instability in Pakistan since its independence.

With at least three distinct decade-long periods of military rule, Generals Ayub-Yahya, Zia and Musharraf in particular helped create and consolidate the rot by institutionalising ad hocism and skewering the natural progression of career bureaucracy. Each time there was a transition to democracy, in the 1970s, 1990s and recently, there was little serious effort made to institute reforms that would inject back professionalism and meritocracy within the executive. This ensured concentration of powers -- usually controlled directly by both civil and military bureaucracies -- in the executive branch stayed put to the detriment of legislature as well as the judiciary. Even now it is the executive supported by the bureaucracy that typically initiates legislation, bypassing the legislature

by promulgating presidential

ordinances.

Patronage bureaucracy

Another legacy holding sway in Pakistan's political culture and institutions, as well as its electoral politics, notes Wilder, is the institutionalisation of patron-client political associations between the bureaucracy and local elites. In exchange for benefaction in the shape of land grants, pensions and titles, feudals, clerics and tribal chiefs were co-opted by colonial managers to provide political stability and collect revenues. After independence, this direct patron-client relationship between the bureaucracy and local elites strengthened the image of the bureaucracy as the providers of patronage, influence and security, thereby undermining the development of political parties that normally would have played this intermediary role.

Until the break-up of the country in 1971 the civilian bureaucracy played the dominant role in Pakistan's policy-making and as such was insufficiently controlled or influenced by elected politicians. During this period, there was limited scope for interference from politicians as the bureaucracy, particularly the elite Civil Service of Pakistan, maintained control over the selection, training and posting of its members and was therefore able to retain its institutional autonomy. The political unrest that brought down General Ayub's regime in 1969, followed by the bloody civil war that dismembered Pakistan, seriously undermined the political strength and legitimacy of both the civil and military bureaucracies.

Politicised bureaucracy

Zulfiqar Ali Bhutto carved out his political strength from this bureaucratic weakness after coming to power and set out to rectify the power imbalance between the elected and unelected institutions of the state. Within weeks of assuming power he stamped his authority by compulsorily retiring 1,300 bureaucrats and followed that up within months by sweeping administrative reforms. This included introducing a policy of lateral recruitment to increase political influence over a bureaucracy resistant to reform. Then through the 1973 Constitution he sliced away the protection of tenure. Rapid politicization of the civil service followed. This model of patronage, which dispensed with professionalism and performance and promoted loyalty to rulers, has been religiously followed by all subsequent governments whether elected or military. Thousands of civil officers are routinely transferred before and after elections to serve the wishes of their political masters, making it difficult for bureaucrats to get postings, transfers or promotions without the support of political or military patronage.

While the politicisation of bureaucracy, as a result of Bhutto's administrative reforms, did have the short term positive result of giving elected representatives more influence over unelected institutions but permanent adoption of this model also resulted in the decimation of a neutral and competent civil service. Of the dozen serious attempts to study administrative reforms since Bhutto's hanging, almost all seek to restore constitutional security of tenure and safety from prosecution for the civil servants -- arguing that insecure officers can't perform wonders. Both Generals Zia and Musharraf seriously toyed with the idea of restoring these guarantees but understood -- as did the governments of Benazir and Nawaz -- that to retain their grip on the polity they would require a weak and subservient civil service rather than a strong and independent one, and so backed off.

Militarised bureaucracy

General Zia was in fact clear in what he needed to do. He strengthened and consolidated the military's position not only as the country's strongest bureaucratic institution but also as its strongest political institution. While he did reverse Bhutto's reforms, such as the lateral entry of civilian bureaucrats, he offset this by increasing the lateral entry of military officers into the civilian bureaucracy. In fact he instituted a 10 percent quota for former military officials in the officer grades in the civilian bureaucracy. General Musharraf took this to unprecedented heights. When he left in August 2008, there were over 10,000 serving and retired military officers in the civilian bureaucracy his government had appointed.

Even well before Musharraf staged a coup in 1999, the military was a state within a state. Today arguably it is the state -- the elected civilian government and 18th constitutional amendment notwithstanding. The military controls all key state institutions through either direct control or through invisible influence -- the civil service, foreign policy, economic policy, home policy, intelligence agencies. The judiciary and the legislature are still recovering from the encumbering if invisible influence of the army. The worry is that due to the emaciated civilian bureaucracy, the administration of state institutions is still transparently marked by the invisible hand of the military and continues to depend on its capacity rather than civilian.

Considering that there is no concerted effort at broader reforms, over time, the effect is being compounded, especially since the elected government is increasingly noted for its poor governance track-record of two years. There may have been political triumphs for it but good governance is not one of them. The military has become organisationally and institutionally stronger in the last decade. It has ensured it gets much better governance and administrative training than the civilian bureaucracy even as the latter suffers from institutional decay and heads into the other direction.

Professional bureaucracy

Headed by former State Bank of Pakistan Governor Ishrat Hussain, the National Commission for Government Reforms, set up by the last military government but also tentatively supported by the incumbent elected government, has completed an exhaustive two-year review of what ails the civil service of Pakistan and what can be done to prop it up as a standard bearer of professionalism. The commission offers the following key recommendations as the only way for Pakistan to get a service oriented bureaucracy that can help run the proverbial ship of state properly:

Greater accountability: The need to strengthen internal and external accountability mechanisms to address widespread corruption within the bureaucracy;

Enhanced efficiency and transparency: The need to promote greater efficiency and transparency by replacing manual processes with automated ones and rationalising antiquated and outdated rules, procedures and regulations;

Rightsizing: The need for greater efficiency and affordability through rightsizing (most feasibly through natural attrition) of the large number of government employees in the relatively unproductive subordinate services (Grades 1 to 16);

Reform of the cadre system: The need to promote equality of opportunities and career advancement within the civil service rather than the tradition of giving preferential treatment in terms of training, positions and promotions to certain elite cadres. 

Is this the roadmap to recovery? Given the chequered history of attempts to reform and deform the civil services in Pakistan, it seems this is not likely in a hurry -- considering that the timing of reforms is as relevant a tactical issue for military as it is for civilian dispensations. The popularly elected political government wants to break a record by surviving five years and the military establishment is keen to consolidate gains by repairing the damage from Musharraf's overstretch of his last two years. Any serious reforms now will have short term consequences on the principal stakeholders of the political system, including the parliament and the military, each of which is in no mood to lose their respective influence and its attendant benefits. Meanwhile, the only thing that will save Pakistanis from its bureaucracy is its inefficiency.