Administrative discretion is unavoidable. Problems, circumstances, administrators are all too complex to be straitjacketed into laws and regulations. "Where law ends (administrative) discretion begins" is how the father of administrative law Kenneth Davis put it.
Given its indispensability the debate has moved on from desirability or otherwise of administrative discretion to what controls can be introduced to check its abuse. These controls are sought to be applied at the level of delegation of discretion as well as the actual exercise of discretionary powers.
Several laws have been struck down by the courts on grounds of legislation being too wanton - delegating too much or tending to compromise fundamental rights - and where discretionary powers have been exercised whimsically. The vast case law on use of discretion has been unequivocal: the executive cannot hurt or benefit someone unless, in the words of Lord Atkin, "he can support the legality of his action before a court".
In our case, long periods of virtually absolute discretion have infected the Executive mindset. It enjoys, fully endowed by law, quasi legislative and quasi judicial powers as well, not just here but all over the world. As Davis points out "justice is administered more outside the courts than in them by prosecutors, immigration officers, tax and customs officers, service tribunals, etc." A discretion-addicted Executive is hard to tame.
Where unfettered discretion begins good governance ends.
Subordinate legislation (rule making) is virtually the exclusive domain of the Executive. Yes, it is required to be in consonance with the letter and spirit of law, but that's the theory. In practice, rules are made to give wide discretionary powers to the Executive (read bureaucracy). The cutest part is where the last rule allows an undefined 'competent authority' to relax any of the rules - of course in 'public interest', that the competent authority alone decides!
Behind every fortune in Pakistan there is administrative discretion.
First onslaught came in the form of expensive urban lands (evacuee property) allotted in settlement of 'claims'. This was followed by the 'license raj' that made the chosen few enormously rich. With the construction of barrages a whole new class of 'land lords' was spawned when prized agricultural land was distributed through a land grant policy that was inherently discretionary.
Soon, housing societies took over. PECHS, the lodestar to burgeoning DHAs and others, sowed the seeds of unbridled 'entitlement', more so where you could prevail upon the authorities to use discretion to convert residential into commercial. In the process, Real Estate became a safe haven for unexplained wealth as well.
Look at development spending, discretionary grants, customs appraisement, building controls - it's a long list - and you see the not too invisible hand of discretion opening the doors to riches and social mobility.
Behind every repression there is discretion.
Where discretion benefits it can also hurt. There is no dearth of laws that give the functionary sufficient discretionary powers to make 'speed money' well worth the bother. Mostly, these are business-related - labour laws, factory act, social security laws, tax laws, etc. and etc.
Then there are the more invidious ones. The classic one being Defence of Pakistan Rules that allowed the authorities enough discretionary powers to deny you your freedom and more. Maintenance of Public Order, certain provisions of Criminal Procedure Code, NAB Ordinance, ECL provisions, even the Motor Vehicle Ordinance, all provide wide swathes of discretion with potential to deprive you of your sleep, if not worse, before you can get to the court which may use - yes, its enormous discretion - to provide relief.
Ask any law enforcer and you will discover we too have our Guantanamos, many facing the kind of ordeal Saifullah Paracha, the oldest prisoner at Guantanamo Bay, has so touchingly portrayed in his recent Dawn column.
Our problem is the 'over regulation-lax enforcement' syndrome. There are too many rules and regulations cozily residing in an overall environment of weak enforcement. This is how corruption, big and small, gets germinated. We can, for instance, have the finest procurement rules possible, but there is always the element of discretion that can tilt the balance in favour of who you want to favour. Laying down the specifications to suit a particular supplier is an easy example. The fact that mis-procurement abounds, despite stringent procurement rules (PPRA), says something.
With our preponderance of rules it becomes easy for the functionary to boast "show me the man and I will show you the rule".
Our superior judiciary is doing all it can to check discretion that is not judicious or is discriminatory - to the chagrin of the Executive that howls 'judicial-creep'. It is about time the Executive listened to the judiciary - and the people - with an open mind. It is time it took the initiative to check potential abuse of discretionary powers, if it is serious about giving good governance a chance.
Government will do well to begin with a comprehensive review of laws and regulations. Some of these are now anachronistic, others unnecessary, and quite a few simply unenforceable. We have to start weeding them out, taking a leaf out of countries that insist on 'two regulations thrown out to bring in a new one'.
We should rather err on the side of under-regulation than having rules that hold people to ransom; for 'speed money' to proliferate. We should learn from buildings collapsing with no action taken against those who approved the plans; from people dying in mines despite over-manned offices of inspector of mines; from vehicles killing us with their toxic fumes and no questions asked of the motor vehicle examiners.
May we have the temerity to suggest that special teams be set up for the scrutiny of each federal and provincial agency with the mandate to throw out all rules/regulations that either give unwarranted discretion or are hard to enforce? The principal determinant should be if they truly protect people from harm; if they would be worse-off if these rules were not there. The teams, perhaps headed by retired civil servants with relevant experience, should start with identification of, and engagement with, all those who have genuine stakes in the rules being reviewed.
Discretion maybe unavoidable but it doesn't have to be an instrument of repression or undue favours. It should be in the service of people. That's what good governance is all about.
Comments
Comments are closed.