“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”.
These findings were given by his Lordship, Mr. Justice Mansoor Ali Shah in a Division Bench comprised with Mr. Justice Ijaz ul Ahsan in the case Tanveer Ahmad Khan vs. Registrar Lahore High Court, PLD 2013 Lahore 386, while setting aside the appointment order of a court officer passed by the Honourable Chief Justice of Lahore High Court in 2009. The Chief Justice while passing that order was acting as the competent authority to make appointments under the High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules.
This is a commendable decision for laying down the foundations of justice, equity and fairplay concurrently being a guide-note for administrative and judicial authorities in their decision making affairs. It is also significant for the reason that there have not been many precedents in the legal history of Pakistan wherein the bench of two judges went against an administrative decision of the Chief Justice. Although, there have been cases in which the vires of the order(s) of Chief Justice(s) were assailed but without any positive outcome for the assailant. In Manzoor Hussain vs. Muhammad Ashraf, 1999 PLC (C.S.) 279, the appellant challenged the Chief’s order on the ground that in absence of an explicit criteria, the promotion of the employees should have been according to the law laid down by the Honourable Supreme Court in its judgments and in conformity with the principles of natural justice. The appointment order allegedly violated the above both. The matter came up for hearing before the Division Bench, which enunciated as under with regard to the powers of Chief Justice:
“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”.
The above findings reflect that the Division Bench dismissed the appeals solely on the ground of lack of right of appeal available in the Rules and refrained from touching the merits of the case. The Court before parting with the judgment directed the office of the Registrar (Sindh High Court) to place the Rules before the Honourable Chief Justice for addition of a provision relating to the right of appeal in the Rules.
In Shahnawaz Baloch vs. Kazi Muhammad Taqi, 2011 PLC (C.S.) 723, a similar matter came up for hearing which was dismissed with the following observations:
“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.”
It is evident from the above findings that the appellant’s case was meritorious but the same failed to seek appreciation for not standing upon a statutory provision. In comparison with the foregoing judgments, the pronouncements made in Tanveer Ahmed case are manifestly distinct which overemphasize the obligations under oath of a judge over the powers enjoyed by him in High Court Rules.
The said decision is also significant for other reasons.
Firstly, it is a message to all competent authorities functioning in different cadres to act in accordance with law and comply with due process, as none enjoys un-justiceable powers and discretion.
Secondly, it eliminates the doubts (if any) pertaining to lack of impartiality and independence of judges as towards each other.
Thirdly, it reminds all members of the judiciary of their duty to perform their functions in most judicious, solemn and transparent manner.
Lastly, it administers justice between the parties and strengths the rule of law.
It is without any exaggeration that the judges undertake a divine duty of rendering justice to the parties who recourse courts in stricken circumstances. The duty of administering justice transcends from the attributes of Allah Almighty, therefore, a slightest of deviation from the honest performance of same amounts to the misuse of authority, contravening 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 deals strictly with the culprits. In this very image lies the godliness which distinguishes judiciary from other organs of the state. Moreover, this representation carries the features which make this institution dignified and prestigious in the eyes of public – sustainable only through honesty and transparency.
It is important to add that a key factor to bring about welfare and prosperity in a society is to ensure that it has a strong and unbiased judicial system. No society can progress until its judges render decisions which not only ‘are just’ but also ‘appear to be just’. In order to achieve this goal an intense responsibility lies upon the members of judiciary to keep themselves neutral in all their judicial and administrative affairs.
At the end a tribute must be paid to the Lahore High Court, a Division Bench of which has upheld the principle of fairness and due process, while going against the decision of the Chief Justice of High Court. Where it is a source of encouragement for those pursuing justice, there it also sets a standard for the public functionaries of all other institutions in the country. It is a message that they must set themselves free from every type of biasness, partiality and nepotism, as the rule of law is the only road to welfare and prosperity of the society.
Bibliography can be made available upon request.
This article has been first published on July 31, 2013 in JURIST, a publication of the University of Pittsburgh, School of Law and is available at jurist.org/hotline/2013/07/rizwan-hussain-challenged-order.php
The writer is a practising lawyer based in Lahore; Partner at Hussain and Associates (Advocates) and Lecturer of International Arbitration and Commercial Law. He holds an LL.M. in Comparative and International Dispute Resolution – with distinction in Investment Arbitration – from School of International Arbitration, Queen Mary University of London and can be reached at [email protected]
