Importance of Fairness and Due Process: A Tribute to Lahore High Court
“In a country governed by laws and not men where rule of law reigns supreme, no public functionary, who is a trustee on behalf of the people, has the power or the authority to bestow personal favours or largesse at the expense of the institution. Higher the office of the public functionary, higher the responsibility in discharging the sacred trusteeship. All the judges of this Court are public functionaries and hold their post as trustee on behalf of the people of Pakistan in terms of the oath under Article 194 of the Constitution which provides that they will not allow their personal interest to influence their official conduct or official decisions and in all circumstances will do right to all manner of people according to law without fear, favour, affection or ill-will. …”
[Emphasis Supplied]
These remarks have been passed by his Lordship, Mr. Justice Syed Mansoor Ali Shah in a division bench comprised with his Lordship Mr. Justice Ijaz ul Ahsan in a case Tanveer Ahmad Khan vs. Registrar Lahore High Court and others, PLD 2013 Lahore 386, while setting aside the appointment order of an employee passed by the Honourable Chief Justice of Lahore High Court in 2009. A distinct element of this decision is that it relates to an administrative order and not to a judicial order of a member of the judiciary. The Honourable Chief Justice while passing this order was acting as the competent authority to make appointments under High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules. This is an admirable decision which is likely to set new foundations of justice, equity and fairplay in the society and will be torchbearer for many administrative and judicial authorities for deciding matters on merits. This decision is also significant as there have not been many decisions in the legal history of Pakistan in which the bench of two judges passed a decision against the order of the Chief Justice of the High Court. Although, there have been decisions in which vires of the orders passed by the Chief Justices of various High Courts have been discussed but none of the decisions effectively gave a relief to the party as against the order of the Chief Justice. In the case, Manzoor Hussain and others vs. Muhammad Ashraf and another, 1999 PLC (C.S.) 279, the bench of two judges of High Court gave the following remarks while dealing with the powers of the Chief Justice of the Provincial High Court;
“It is well settled principle of law that all authorities, executive or judicial, should exercise discretion conferred upon them through law, in most reasonable, fair, judicious and equitable manner. The power to exercise discretion does not authorise them to act arbitrarily, discriminately and with mala fide. This principle is equally applicable to the Chief Justice of a Provincial High Court upon whom the law laid down by the Hon’ble Supreme Court is equally binding. But this is not the case of the appellants. … Unless it is shown that the exercise of discretion by the Chief Justice is colourable exercise, motivated with mala fide, it will not be fair and just to interfere with the same. … However, for the present, we would not like to touch the merits of the case as we are inclined to dispose of these appeals on the short ground that the impugned orders are not appealable.”
[Emphasis Supplied]
The Honourable High Court while passing these remarks, dismissed the appeals on the ground of lack of any substantive right of appeal available in the rules but before parting with the judgment the Court directed the office of the Registrar to place the rules before the Honourable Chief Justice of the High Court for the inclusion of the provision relating to the right of appeal into the rules. Likewise in another case, Shahnawaz Baloch and others vs. Kazi Muhammad Taqi and another, 2011 PLC (C.S.) 723, a similar matter came up for hearing before a bench of two judges of the Provincial High Court and that appeal was also dismissed with the following remarks;
“Since the decision was taken by the honourable Chief Justice in exercise of his power under Rule 7 read with section 26 of the said Rules, the appeals being not maintainable are dismissed.
Before parting with this order we feel that to appreciate the proper working of the employees and to avoid heart burning which may cause inefficiency amongst the employees it will be proper to direct the Registrar of this Court that, in future whenever any post is required to be filled by promotion all the employees of High Court Establishment who are eligible for promotion be considered for selection/promotion and then matter be submitted to the honourable Chief Justice for his decision.”
[Emphasis Supplied]
Keeping in view the findings given in the past judgments another distinct element of the recent judgment which manifestly comes before is that the Honourable Court while passing this decision kept the obligation under oath of a judge prior to the powers enjoyed by him under the High Court Rules.
In addition, this decision is also significant in various other respects. First of all it is a warning to all the competent authorities functioning in the civil services to take their decisions strictly in accordance with law and comply with the due process, as there is no authority which enjoys non-justiceable powers. Moreover, it also eliminates every iota of doubt pertaining to the judicial bias or lack of impartiality and independence of judges as towards each other. It further establishes that the judiciary is a venerable organ of the state with most solemn and esteemed functions to perform. Therefore, the members of the judiciary are obliged to be free from any type of bias, partiality or nepotism. The time of reporting this decision in negation of institutional bias also happens to be significant as in this crucial time a debate in various circles of society pertaining to institutional bias is already going on. In these circumstances the decision of the Lahore High Court is commendable and is warmly welcomed as it promotes the administration of justice and strengths the rule of law.
It is important to add to the discussion that every society which has achieved welfare and prosperity has achieved it through a strong and independent judicial system. No society can progress until its Munsifs render decisions which not only are just but also look to be just. In order to achieve this goal an intense responsibility lies on the shoulders of the members of the judiciary to keep themselves impartial in all their judicial as well as administrative matters. The judges undertake a divine duty of providing justice to the people who knock at the doors of the courts in stricken circumstances. The duty of providing justice comes directly from the attributes of Allah Almighty, therefore, any deviation from the honest use of powers conferred through it, amounts to the abuse and misuse of the position, which contravenes the injunctions of Islam. The image of a judge in the eyes of public is that of a savior who is kind and passionate to the oppressed and wronged and deals iron handedly with the culprits. In this very image lies the godliness which distinguishes judiciary from other organs of the state. Also this image carries the features which make this institution dignified and prestigious in the eyes of public and that is sustainable only by the performance of functions in a most truthful and revered manner by the judges.
At the end a tribute must be paid to the Lahore High Court, a division bench of which has set an example of impartiality, independence and has encouraged those who are in pursuit of justice. By passing this decision the Lahore High Court has also demonstrated the lack of existence of any speck of institutional bias in the minds of the judges. The office of Honourable Chief Justice of Lahore High Court deserves regards insofar as this decision relates to, and has upheld the principle of supremacy of law. This is an example to follow for the officials of all other institutions in the country to set themselves free from any type of bias and take all their decisions strictly in accordance with law, as the supremacy of law is the only road to welfare and betterment of the society.
Writer is a practicing lawyer based in Lahore, lecturer of commercial law and founding partner at Hussain & Associates. hnachambers@gmail.com
Note: An edited version of the above article was published in JURIST (jurist.org), a publication of the University of Pittsburgh School of Law. Original source is available at http://jurist.org/hotline/2013/07/rizwan-hussain-challenged-order.php.
ranarizwanhussain 