"In a country governed by laws where the 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 [favors] 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 [PDF] 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, [favor], affection or ill-will..."
These remarks have been passed by Justice Syed Mansoor Ali Shah in a division bench comprised with Justice Ijaz ul Ahsan in a case Tanveer Ahmad Khan v. Registrar Lahore High Court and others [PDF], while setting aside the appointment order of an employee passed by the Honorable 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 Chief Justice, while passing this order, was acting as the competent authority to make appointments under Lahore High Court Establishment Rules on Appointment and Conditions of Service [PDF]. This is an admirable decision which is likely to set new foundations of justice, equity and fairplay in society. It will be a 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, none of the decisions effectively gave a relief to the party against the order of the Chief Justice. In the case, Manzoor Hussain and others v. Muhammad Ashraf and another, the bench of two judges of the High Court gave the following remarks while dealing with the powers of the Chief Justice of the Provincial High Court:
It is [a] well‑settled principle of law that all authorities, executive or judicial, should exercise discretion conferred upon them through law, in [a] most reasonable, fair, judicious and equitable manner. The power to exercise discretion does not [authorize] 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 [c]ourt 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 [colorable] 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.
The High Court, while passing these remarks, dismissed the appeal for lack of any substantive right of appeal available in the rules. Before parting with the judgment, the court directed the Office of the Registrar to place the rules before the Chief Justice of the High Court for the inclusion of a provision relating to the right of appeal. Likewise in another case, Shahnawaz Baloch and others v. Kazi Muhammad Taqi and another, 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 [honorable] 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 [honorable] Chief Justice for his decision.
Keeping in view the findings given in the past judgments, another distinct element of the recent judgment which manifestly comes before is that the court while passing this decision kept the obligation under oath of a judge prime to the powers enjoyed by him under the High Court rules.
In addition, this decision is significant in various other respects. First of all, it is a warning to all the competent authorities functioning in the civil services to make their decisions strictly in accordance with law, complying with due process, as there is no authority which enjoys non-justiceable powers. Moreover, it eliminates every iota of doubt pertaining to the judicial bias or lack of impartiality and independence of judges 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 obligated to be free from any type of bias, partiality or nepotism. The timing of this decision, decrying institutional bias, is also significant as the debate is already going on in various circles of society. In these circumstances the decision of the Lahore High Court is commendable and warmly welcomed as it promotes the administration of justice and strengthens the rule of law.
Every society which has achieved welfare and prosperity has achieved it through a strong and neutral judicial system. No society can progress until its Munsifs (lower court civil judges) render decisions which are not only just but also look to be just. In order to achieve this goal an intense responsibility lies on the shoulders of the judiciary to keep themselves dispassionate in all their judicial and administrative decisions. 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, and therefore, any deviation from the honest use of powers conferred through it amounts to the abuse and misuse of the position, contravening the injunctions of Islam. The image of a judge in the eyes of the public is that of a savior who is kind and passionate to the oppressed and wronged, dealing iron-handedly with the culprits. In this image lies the godliness which distinguishes the judiciary from other organs of the state. Also this image carries the features which make this institution dignified and prestigious in the eyes of the public. This image is sustainable only by performing judicial functions in a most truthful and revered manner.
At the end, a tribute must be paid to the Lahore High Court, a division bench which has set an example of impartiality and independence, encouraging those who pursue justice. By passing this decision the Lahore High Court has also demonstrated the lack of any speck of institutional bias in the minds of the judges. The office of Chief Justice of Lahore High Court deserves a special salute insofar as this decision relates to, and has maintained, the principle of supremacy of law as paramount. 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.
Rana Rizwan Hussain is a practicing lawyer based in Lahore, Pakistan, lecturer of commercial law and founding partner at Hussain & Associates. He received his LL.B. from the University of Punjab and his LL.M. from the University of London.
Suggested citation: Rana Rizwan Hussain Importance of Fairness and Due Process: A Tribute to Lahore High Court, JURIST - Hotline, July 31, 2013, http://jurist.org/hotline/2013/07/rizwan-hussain-challenged-order.php.
This article was prepared for publication by John Paul Regan, an Associate Editor with JURIST's Professional Commentary Service. Please direct any questions or comments to him at firstname.lastname@example.org