Highlights of Hon’ble Justice Syed Mansoor Ali Shah’s Tenure at Lahore High Court

 Highlights of Hon’ble Justice Syed Mansoor Ali Shah’s Tenure at Lahore High Court

“O you who believe!  Stand firmly for justice…”
(Sura An-Nisa – Ch. 4: verse 135 of the Holy Quran)

There are two types of individuals, those who take the easy path of going with the flow and others who take the challenge of going against the flow and making a difference selflessly and fearlessly without paying any heed to the populist view. Justice Syed Mansoor Ali Shah chose the latter in his tenure at the Lahore High Court.

His Lordship’s journey in Lahore High Court began in 2009 and even in the initial years, he did not seem to be hesitant or defensive in justifying his elevation to the Bench, rather he showed great maturity and courage. In Mian Ayaz Anwar v. FoP, PLD 2010 Lahore 230, the issue of placement of a petitioner’s name in the Exit Control List (ECL) came under discussion. While discussing the historic development of the right to travel and removing the name of the petitioner from the ECL, His Lordship referred to the Art. 42 of the Magna Carta (1215), Art. 13 of the United Nations Universal Declaration on Human Rights (1948), Art. 12 of the International Covenant on Civil and Political Rights (1966), Section 6 of the Canadian Charter of Rights and Freedoms, Article 11 of the West German Constitution (1949) and judgments of the Supreme Courts of US, Pakistan and India.

During His Lordship’s tenure before becoming the Chief Justice of Lahore High Court, important judgments were delivered by him on various important issues including the following:

  • Elections – see Awais Younas v. FoP, PLD 2016 Lahore 1; Muhammad Jamil v. Amir Yar, PLD 2010 Lah. 583; Munir Ahmad v. ECP, PLD 2013 Lahore 575;
  • Environment – see Imrana Tiwana v. Province of Punjab, PLD 2015 Lahore 522 (FB);
  • Financial autonomy of the judiciary – see Riaz Ali Zaidi v. Govt of Punjab, PLD 2015 Lahore 463;
  • Independence of judiciary in terms of Art. 175A – see High Court Bar Assn v. FoP, PLD 2015 Lahore 317.

On the rule of law, His Lordship in Ch. Imran Raza case, PLD 2016 Lahore 497, stated the following in para 4:

“The strength of the Bar is not in its number but in its ability to stand up for justice and fairplay on the strength of reason, law and equity. The mark of a good lawyer is his unwavering boldness and unfaltering courage to stand and fight for what is right. Law is a noble profession and requires noble men – full of knowledge and respect for the law and judicial institution.”

Having observed the courtroom proceedings of His Lordship on various occasions and appearing before His Lordship, I never saw him losing his cool during the hearing or making an adverse remark on the competence of an Advocate. Instead, I always saw him encouraging young and female lawyers to come forward and form part of the system to bring positive changes. To bolster the confidence of the bright and emerging members of the Bar, he appointed Advocates like Rafay Altaf, Waqqas Mir, Saad Rasool, Rafay Alam and Sarah Belal as amici curiae in important constitutional cases.

After oath as the Chief Justice of Lahore High Court was taken, remarkable progress was made in bringing reforms on both judicial and administrative sides. On the administrative side, His Lordship exuberantly revamped the case management system at Lahore High Court and District levels across Punjab, introduced alternative dispute resolution (ADR) for facilitating people and gave shape to a robust Lahore High Court Research Centre (LHCRC). On the judicial side, many landmark judgments were delivered in 2017, including, for the first time in history, one regarding a very neglected area: to mainstream the rights of persons with different abilities.

  • In Hafiz Junaid Mahmood v. Govt of Punjab, PLD 2017 Lahore 1, while recognising the right to equality of visually impaired persons, His Lordship struck down para 4D of the Recruitment Policy for Educators, 2013. His Lordship directed the government to consider the candidacy of the petitioner on merit or employment quota.
  • In Muhammad Yousaf v. Chairman, Federal Public Service, PLD 2017 Lahore 406, His Lordship struck down rule 9(ii) of CSS Rules (which deprived persons with disabilities from becoming part of all groups and category of services on the basis of their disability), for being violative of the UN Convention (CRPD), Constitution of Pakistan and the 1981 Ordinance.
  • Even their inclusion into the National Population Census was ordered in Mohammad Shafiq ur Rehman v. FoP, PLD 2017 Lahore 558.

Later in 2018, on a public interest petition filed by myself and my younger brother, Shehryar Khan Tareen, His Lordship struck down offensive and unconstitutional words like “disabled”, “mentally handicapped” and “physically retarded” from the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 by applying the doctrine of severance. Whilst, the doctrine of severance is not new in our legal jurisprudence, this is the first judgment in the history of Pakistan when offensive words have been struck down/deleted from the statute.

Through these judgments, a brick in the wall has been placed in making Punjab a disability-sensitive province that protects the right to life, equality and dignity for differently-abled persons.

Other than the rights of persons with different abilities, environmental jurisprudence also flourished during His Lordship’s tenure as CJ.

  • In Sugar Mills v. Province of Punjab, PLD 2017 Lahore 848 (DB), the shifting/relocation of 3 sugar mills from Central Punjab to South Punjab was declared illegal for not obtaining an Environment Assessment Report. The court directed the dismantling and removal of the mills from the present location back to their original position within 3 months of delivering the judgment.
  • In Walid Iqbal v. FoP, PLD 2018 Lahore 1, the serious issue of smog in Lahore was addressed, keeping in view the fundamental right to life and the internationally recognised “precautionary principle”. A Smog Health Emergency Action Plan was put in place with direction to the government to submit a new revised policy within three months.
  • In Asghar Leghari v. FoP, W.P. No. 25501/2015 [decided on 25.01.2018], the international issue of climate change was taken up along with environmental justice, climate justice and water justice for a more effective enforcement of fundamental rights of Pakistanis.

Rights of minorities (especially the right of Christians to divorce under the UK Matrimonial Causes Act 1973) were also protected in the case of Ameen Masih v. FoP, PLD 2017 Lahore 610, where the provision in 7(2) of the 2nd Sch. to Federal Laws (Revision and Declaration) Ordinance 1981 was struck down by His Lordship for conflicting with minority rights recognised in the Constitution and UN Convention. The aforesaid item removed grounds for divorce provided under the UK Matrimonial Causes Act 1973, as a result of which the only ground for divorce available to a Christian was to prove that the spouse had been guilty of adultery.

There may have been some decisions of His Lordship which not everyone may agree with, however, it is the diversity which is the beauty of any living modern society. Public opinion should always be the least of the considerations for a judge because he or she is under a duty to act as a guardian of the Constitution. In my view, if His Lordship feared criticism, the aforesaid achievements would not have been possible.

Criticism is something we can avoid easily by saying nothing, doing nothing, and being nothing.”
– Aristotle.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Asfandyar Khan Tareen

The writer is a Barrister from Lincoln's Inn and heads Tareen Barristers Chambers in Lahore. He can be contacted at ayk@tareen.com.pk



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