Rules and Discretion

By Anjum Altaf

What should be the allowance for discretion in the application of rules? This ought to be a contextual determination and one can use recent events in the worlds of cricket and politics to argue where the line ought to be drawn in Pakistan.

Healthy institutions rely on discretion to take advantage of unforeseen opportunities when changing rules would consume valuable time causing opportunities to be lost. But there is a huge caveat in this simple formulation: that discretion is to be employed for a higher purpose and not self-interest. The more upright the office-bearers of an institution, the more the availability of discretion can lead to gains in efficiency and achievement.

But what happens when office-bearers cannot be trusted to place institutional gains over self-interest? The damage from the abuse of discretion can result in losses far outweighing any possible gains from their legitimate use. In such situations, it would be best to stick to inflexible rules and sacrifice the possible gains that remain purely hypothetical in the absence of the integrity that is a perquisite for their beneficial use.

Let us turn now to Pakistan where it seems that every man has become a blind adherent of Adam Smith believing that it is the self-interest of the baker and the butcher that advances the welfare of society. This may be fine as far as the private sphere is concerned although in actuality it is problematic even there — it presumes, for example, the butcher acting within some ethical norms and not peddling donkey meat to maximize his gain. But the presumption does not hold at all when an individual is made responsible for a public trust. In such a situation, the individual is required to act in the public interest and not his own.

In Pakistan we have allegedly reached the point where every man is a butcher who is in it for himself. No doubt there are exceptions but they have withdrawn from the jungle in which only the most dishonest can survive or advance. Even if this allegation is not strictly true, as long as it is the general perception the ill-effects are bound to show up one way or another. And it is hard to deny that the general perception is precisely this, embedded into our psyches by our own leaders. As a reality check, there is one simple challenge: identify one major project in Pakistan since its creation that has not been scarred by a scam. And, in case there is one to be found, do furnish an assurance that a dormant scam would not be discovered a quarter of a century from now.

One should note that there is no lack of sanctimonious messiahs who decry the abuse of discretion when wandering in the wilderness. But just watch their actions when the very same people are entrusted with positions of trust. Therefore, the bottom line of this argument is that, no matter what anyone might say, we have to minimize discretion in Pakistan at least for this phase of our existence. We may forego the advantages of being fleet-footed but we would also not suffer the damage from being incompetent or dishonest. On balance, we would be better off sticking to some set of rules without discretion.

Take cricket, for example, where the team selected recently to tour Australia was deemed the worst ever to have visited that country. There is very little doubt that personal likes and dislikes have plagued Pakistani sports for decades and that the discretion allowed to selectors has resulted in gross injustice and heartbreak for many excellent performers in domestic tournaments. One way out of this unsavoury morass would be eliminate the discretion and select teams based exclusively on performance in first class matches. The two to three top performing players would qualify automatically for each position and be rotated in the national teams. A detailed set of rules could be specified to operationalize this process. There is no doubt that one would lose out on fast-tracking an occasional superstar like Wasim Akram but in general the team would be better off without the sidelining of scores of excellent players like Fawad Alam.

The crisis in politics from the arbitrary use of discretion is even more dangerous for the country. This is well illustrated by the recent controversy over the extension of the Chief of Army Staff’s tenure. This situation is particularly egregious because discretion has been employed in the absence of any provision to grant a legitimate extension. The judiciary has highlighted the abnormality and rightly recommended that proper rules be put in place. But, once again, given the track record of office-holders, there should be no room for allowance of any discretion in such sensitive matters. The most senior officer should automatically be appointed COAS (could anyone be actually worse than Zia ul Haq?) and there should be no provision for extension of tenure (there is no one really that indispensable).

The poor outcomes that result from the abuse of discretion are not the only damaging consequences that ensue from dishonest practice. Much more destructive is the societal ethos that takes root when discretion is routinely abused for patronage and individual gain on the basis of personal preferences. It engenders an environment in which people abandon the pursuit of merit and gravitate towards either bootlicking and grovelling for favours or the outright purchase of offices and positions. And once such a set of individuals entrench themselves in positions of advantage the malady just reinforces itself over time. No honest or meritorious person can be allowed to break into the system for fear of overturning the applecart.

Pakistan is very deep in a crisis of governance because of the blatant and unchallenged misuse of discretion over decades. The practice has been highlighted fortuitously by the recent egregious consequences in cricket and politics. We ought to take advantage of these exposures to begin to stress the primacy of rules and to eliminate room for the abuse of discretion.

This opinion was published in Dawn on January 5, 2020 and is reproduced here with the author’s permission. The writer was the dean of the school of humanities and social sciences at LUMS.

 

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