Imperious cronyism

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

The US presidential election was an uplifting experience for the citizens of the world. The Barack Obama story has been a fairytale so far. And irrespective of how rational or cynical we get, many of us secretly like fairytales. Irrespective of how vehemently one disagrees with the bitter, divisive and immoral politics and policies of the Bush administration, the choice of Obama certainly engenders admiration for the American nation that continues to challenge itself and then rise to meet those challenges. It also highlights the need for countries such as ours – where anti-Americanism has been on the rise – to understand that the US is not a monolith, and that there is need to distinguish between the US government and the American people in order to develop a sustainable relationship between the two nations.

In his victory speech, President-elect Barack Obama highlighted the ideals – democracy, liberty, opportunity and unyielding hope – that he would continue to struggle for. He paid rich tribute to Senator John McCain, and was also mindful of those who had sided with McCain in the electoral contest. "And to those Americans whose support I have yet to earn," said Obama, "I may not have won your vote tonight, but I hear your voices, I need your help and I will be your president too." The policies of the president-elect will certainly be those informed by the ideology of the Democratic Party. But in stating that "I will listen to you, especially when we disagree," his style and symbolism was reassuring to those who had not chosen him.

An individual once elected to public office is expected to serve the entire constituency, and not just those who voted him to office. But such an obvious point is lost on our own politicos, whose sole function in office remains dispensation of state patronage for self-aggrandisement and to promote cronyism. None of the political parties in Pakistan can claim to have placed merit above loyalty and partisanship, and are culpable in various degrees. But when it comes to perpetuating cronyism the audacity and malevolence exhibited by our ruling party is certainly unmatched.

Last week, the PPP-led cabinet decided to reinstate employees recruited in government departments from November 1993 to 1996, and then removed by the successor Nawaz Sharif government, with seniority and backdated financial benefits. A ministerial committee headed by Senator Raza Rabbani has been formed to evaluate the financial consequences of the decision. However, while announcing the decision, Information Minister Sherry Rehman resolutely declared that the reinstatement decision would be implemented, notwithstanding its dire financial implications.

Does the PPP not understand that citizens' struggle for the return of democracy was not fuelled by a craving and withdrawal for the rancorous and alienating petty politics of the 1990s? In voting for change in the elections of 2008, the people of Pakistan had also chosen hope over experience. But in preferring discredited politicians of the 1990s to the pigmies propped up by a military regime, people hoped that the politicos would have learnt from history and would simply not return with a renewed urge to copy and replay it. By returning to splurge public power and state resources with an undue haste – as if struggling to make up for lost time – the PPP-led government has put a damper on the hopes and aspirations of citizens.

Is there a way to rationalise the misplaced zeal to return loyalists recruited by the last PPP government in 1996-97 after over a decade, and that too with backdated seniority and benefits? Is it just and fair to treat such PPP jiyalas who have been doing their own thing for almost 12 years at par with public officials and employees who have continued to serve this entire period in the ill-fated departments upon which the jiyalas will now be foisted again? Would the backdated benefits also include accumulated salaries for a decade of doing nothing? Under what retributive theory of law or equity can such plunder of state resources be justified, especially in the midst of a financial crisis where to-default-or-not-to default is the looming question?

Let us take the example of the Intelligence Bureau, for instance. In 1996, the PPP government created hundreds of new posts in the premier civilian intelligence agency and had no qualms about filling them up with ineligible and incompetent individuals. Being a jiyala or a relative of one was the sole criterion for induction. But while they were still on probation the PML-N government was sworn in, which immediately cleansed the IB of all probationary jiyalas. Most of them appealed their termination before the Federal Services Tribunal.

The FST found that "the appointments were made not on the basis of merit but on the recommendations of the ministers and other government functionaries," and upheld the termination orders, as the employees had been dismissed during probation. The FST ruling was then appealed before the Supreme Court, which also dismissed the petitions, reiterating the well-settled legal principle that "a probationer has no vested right to continue in service." So why can the PPP-led government not bury the hatchet and look to the future?

First of all, such reinstatements would be illegal. The highest court of the land had decided conclusively in 2000 that the probationers were legitimately laid-off. Thus, neither the cabinet nor any other executive office has the authority to reinstate such individuals, and with backdated seniority and benefits. They can be appointed afresh, but not reinstated. However, this issue once gain highlights the contradiction and malice of the Naek-formula contrived to return deposed judges to the courts. On the one hand, it insists that judges cannot be reinstated but only reappointed, and on the other it confers backdated seniority utterly devoid of constitutional mandate. If impermissibly removed judges can only be "reappointed," how can legally removed executive minions be "reinstated"?

The issue of backdated seniority is more complicated, though. One, notwithstanding the PPP government's lack of legal authority to confer seniority on judges through executive order, the act and its acceptance by the returning judges has established a precedent. If the government can determine the seniority of judges through executive order, why can it not do so with regard to employees falling under the executive branch of government? And, two, which court in this land will now have the courage (or the moral authority) to dissuade the PPP from thronging state agencies and public bodies with jiyalas endowed with fake seniority and ill-deserved benefits?

Apart from the little problem of illegality, and the fact that the cabinet's resolve to grant cover to the PPP's nepotistic urges will not make the scheme kosher, the PPP should refrain from this misadventure in view of its terrible consequences. Consider the new depths of incompetence and mediocrity to which the PPP reinstatement policy will drag the already dysfunctional state agencies. How would thousands of reinstated employees, with fake seniority and no developed skill-set, affect the morale of those presently serving in these agencies? How many legal challenges will the existing employees of such agencies mount to claim their seniority and right to promotion?

Will merit in this country continue to be slaughtered by partisan loyalties and base cronyism? Must employment generation always amount to sacrificing the viability of state agencies and public-sector organisations by indiscriminately adding party loyalists onto state payroll? Have we learnt no lessons from our flagship carrier and national railways that have been transformed into bloated deficit-making monstrosities? Why can the PPP not focus on revitalising the economy and the private sector as engines for job creation? And to the extent that the public sector needs more hands and minds, why are all energies focused on contriving schemes to bypass transparent merit-based hiring under the supervision of the Federal Public Services Commission?

True, Pakistan's largest political party has been out of power – and its supporters out of favour – for over a decade. But it must get back in touch with reality and realise that gluttony and piggishness are neither popular nor sustainable forms of governance. A majority of Pakistan's electorate voted for change on Feb 18. The prevailing despondency in the country is a reflection of their sense of being short-changed. The Zardari-led PPP has the opportunity to shepherd this nation at a time when it is desperately vying for a new direction. But for that to happen, it must break from its past, resist the temptation to pursue invidious schemes designed to reward its core supporters and garner momentary popularity, and start functioning as a government for all of Pakistan's citizens.



Email: sattar@post.harvard.edu