Islamabad, Oct 5; Former Chairman Pakistan Electronic Media Regulatory Authority (PEMRA), Mr Absar Alam, is liable to return atleast fifty one million (Rs51000000/-) rupees received as illegal salaries, perks and privileges after Lahore High Court (LHC) declared his appointment illegal and void ab initio.
The Pakistan Tehrik-i-Insaaf (PTI) government, in compliance of Court directives, has withdrawn notification of illegal appointment of former Chairman PEMRA, making him liable to deposit in government treasury millions of rupees he received as salaries, perks and privileges from tax payer’s money.
The Auditor General of Pakistan has also directed PEMRA to recover an amount of more than a million rupees from Mr Absar Alam for irregular and unauthorised use of official Honda Civic bearing No GJ786.
The PTI government has withdrawn the notification of appointment of Absar Alam in compliance of LHC Judgement which categorically gave the following directives:
- “The appointment of the respondent No.4 (Mr. Absar Alam) as Chairman, PEMRA is without lawful authority and of no legal effect and hence void ab initio.
- As a consequence, the notification of his appointment dated 11.11.2015 and 08.04.2016 is set aside and the position of Chairman, PEMRA is deemed to be vacant.
Mr Absar Alam received more than Rs50 Million as salary from tax payer’s money in addition to perks and privileges during the tenure of his illegal appointment.
The post of Chairman PEMRA is supposed to be politically neutral but Pakistan Muslim League Nawaz (PMLN) patronized Mr Absar Alam with the position to target critical media voices.
Due to his anti-media and anti-freedom of the press policies, some media persons called Mr Absar Alam the Tara Masih of PMLN government for media – a reference to hangman of former Prime Minister Zulfiqar Ali Bhutto during dictatorship of General Zia.
The anti-media campaign during the illegal tenure of Absar Alam as Chairman PEMRA surpassed gagging orders issued during the tenures of military dictators.
The illegal press gagging orders issued against bonafide journalists during the illegal tenure of Absar Alam were overturned by the superior judiciary which upholds freedom of the press as a fundamental right critical to democratic progress of Pakistan.
Any government, appointing heads of regulatory bodies like PEMRA, must comply with guidelines provided in the following paragraphs of the landmark judgment authored by Justice Shahid Karim in the case of illegal appointment of Mr Absar Alam vide W.P No.38449 of 2015
“One of the important features of a culture of independence of the regulatory authorities was the independence of leadership. In this regard, the following guidelines were given by the report:-
―The board or agency head of a regulator ultimately takes the decisions for which the regulator will be held accountable, and can be exposed to greater pressures than professional staff.
As the government (executive and/or parliament) is responsible for the nomination and appointment of board members and agency heads, board members and heads can be closer (or at least have more intense relations with) the nominating and appointing authority, at least before they start their ―tour of duty. The nomination process is a crucial juncture where the lack of transparency and accountability on the process and criteria leading to a nomination might create strong perceptions of undue proximity.
Reference may also be made to the guidelines for an Independent Regulatory Framework for Commonwealth Broadcasting Organizations, which was a report prepared following the meeting of law ministers of the Commonwealth in October, 2004, in which the ministers discussed a paper setting out the basic principles of the regulation of broadcast services. In respect of independent regulations, it was provided that:-
- It is accepted best practice throughout the world that as an independent broadcasting industry develops, so too must an independent regulatory system to license and oversee this industry. The development of democracy requires the availability of a variety of sources of information and opinion so that the population can make informed decisions at times of elections. Through the world, television and radio are now the main sources of news and information. To enable open debate for the proper operation of democracy there needs to be a plurality of service provides to enable access of viewers and listeners to a wide range of sources of news and information.
Appointments and termination
Another key matter which – to comply with best practice – must be set out in legislation is the manner in which members of the regulatory authority are to be appointed, and the terms of their appointment, in such a way as to safeguard their independence.
There is no ̳right‘ way to go about the appointment of members to a regulatory authority. There are many different models, all intended to ensure the creation of an independent board. Some examples are:
–– to ensure that each major political party is equally represented on the authority‘s board;
–– to allocate a number of places (typically 3) to each of the President, the Parliament, and Government;
–– to allocate nominations to certain sectors of civil society (e.g. the judiciary, academics, trade unions, churches, the professions), with final selections voted on in Parliament;
–– to publicly advertise for members, and applicants to be short-listed and selected by civil servants, for final approval by Parliament; or
–– to apply strict qualifying criteria for applicants (e.g. business or legal experience, quotas based on ethnic minority, race or gender), with selection made by a representative group of senior politicians.
In each country, careful consideration has to be given to the mode of appointment – what process will deliver the best group of members who will be able to act independently, and will have the trust and respect of the industry, the general public, and politicians?‖
It was emphasized that the rules of appointment should be clearly defined to product the members of the regulatory authorities from interference from political or economic forces.
Lastly, we may refer to the IMF Working Paper on Regulatory And Supervisory Independence And Financial Stability, March 2002. With respect to the role of independent agencies and for them to be outside political control, the following observations in the report are relevant:-
―On the other hand, the need for political independence has created a long-standing fear— also part of the principal-agent discussion—that independent agencies would be outside political control, not be politically accountable, pursue their own agendas that may go against the agenda of the political majority in democratic regimes, or—see above—be captured by private interests. Some authors have branded independent regulators as the ―fourth branch of government‖, implying that they were outside the control of the traditional three branches that, through checks and balances, keep mature democratic systems in equilibrium…‖―…Independent regulatory agencies are increasingly seen as a necessary component of modern regulatory governance, and as such, represent a sound improvement when compared to regulatory functions embedded in government ministries without clear mandates or objectives (OECD, 2000).
Institutional independence was found critical in relation to matters of appointments and dismissal of senior personnel and it was stated that:-
―The terms of appointment and—even more critically—dismissal of its senior personnel. Independence is best served if there are clear rules on hiring and firing, which should depend on regulators‘ competence and probity, not on the decisions they reach. Under such rules regulators would enjoy security of tenure, enabling them to speak and take action without fear of dismissal by the government of the day. Ideally two government bodies—that is, government and parliament— should be involved in the appointments process.‖
The above literature and extracts have been referred to simply to bring home the need for independent regulatory authorities and the degree to which international agencies have gone in laying down rules to be followed by member countries so that the administrative agencies are made free from political and executive influence as also from the influence of the other stakeholders in the sector which the agencies regulate.
Regulators and supervisors need a substantial degree of independence—both from the government and the industry—in order to fulfill their mandate and contribute to the achievement and preservation of financial and democratic stability. It must be emphasized that there are imperatives posed by internationalization. Given the importance, complexity and growing internationalization of different specialized sectors, regulators need to be in position to adopt prudential rules and regulations quickly and flexibly to international best practice, in response to changing trends, conditions and dangers in the international marketplace. This is one argument which justifies regulatory independence so as to have an appropriate degree of autonomy in setting rules and regulations for the sector under its supervision.”