Apparently, a very valid question, and according to Justice (retired) Fakhruddin G. Ebrahim, the real bone of contention. Thus, there are valid reasons for us to scratch this issue a bit further.
If one is to believe Senior Adviser to Shahbaz Sharif, Sardar Zulfiqar Ali Khan Khosa of PML-N, Governor Slman Taseer is responsible for hindering justice because he has been
blocking appointment of judges to the Lahore High Court and has illegally deferred the list of nominees sent by the chief justice of the Lahore High Court…Khosa said the chief justice of the Lahore High Court sent a list of 26 nominees for appointment as judges through the Punjab governor who called them up and asked them to appear for interview. He said out of these 26 nominees some went to the Governor’s House but others refused. He said the LHC chief justice wrote to the federal law secretary to take an affidavit from nominated persons whether they had met Governor Punjab with regard to appointment. He said that ten nominees submitted an affidavit that the governor had tried to get a promise from them that in case they became judges they would support the PPP. He said the chief justice withdrew all these names and had now nominated only 11 people for appointment as judges of the high court. He said that it was a constitutional obligation that the advice of the chief minister should be sought in appointment of judges but the governor did not pay any attention on this clause and he (Taseer) was still holding this list back. He said only 20 judges out of 63 were presently working in the Lahore High Court and cases and shortage of judges, affecting disposal of cases. (Source: The News)
If one is to believe another media report by the Jang group (The News) by Mr Tariq Butt (a loyalist to PML-N), Governor Salman Taseer seems to be causing a bizarre delay in appointment of judges:
The LHC chief justice’s recommendations for appointment of 26 judges remained pending with Punjab Governor Salmaan Taseer for more than six weeks. He forwarded them to the federal government just a week back…With these top judicial nominations stuck up mainly because of the government’s defiant policy …, the heaps of pending cases in high courts are fast swelling day by day. This number crossed 100,000 only in the LHC. The present judges at the LHC are not hearing the pending cases but are only disposing of urgent matters, filed every day. At present 36 vacancies exist in the LHC, which has a sanctioned strength of 60 judges. The present 24 judges include four justices, who are not working as contempt of court proceedings are pending against them. So practically, just 20 judges are working. Source: The News
According to media reports, sources privy to Governor House suggest that the list of recommendees sent to Governor Taseer was full of contradictions. Originally, there were 29 names, he disclosed and said that one was withdrawn when it was pointed out that the nominee was overage. The name of another recommendee was wrong. Furthermore, six of the 27 nominees are district and sessions judges, who are quite low in the seniority line.
Responding to it, the LHC official said it was the prerogative of the chief justice to weigh the fitness of a sessions judge keeping in view his integrity and competence. Further, he said, nomination of a district judge as LHC justice was not a promotion but a fresh appointment and nobody could claim it as a matter of right. Thus, he said, seniority was no criterion qualifying a district judge to be elevated to the LHC
Another objection raised by the governor, according to the source, is that six of the lawyers recommended for appointment as judges are associated with one law firm of Lahore being run in the name of a powerful personality while another five work with another chamber of the Punjab capital, presided over by a noted figure of the lawyers’ movement. He said this means that eleven out of 21 advocates recommended to be made judges come from just two law chambers.
The governor feels that it has happened that the Punjab CID reported to him that a nominee was extremely good while the Intelligence Bureau said that the recommendee was thoroughly corrupt. “In this situation, he was left with no option but to call the nominee for an interview, which was resented by concerned judicial quarters,” the source said. “The names of all persons who met the governor were dropped from the list.” (Source: The News)
Why is Khawaja Sharif frustrated?
This development has obviously frustrated Chief Justice LHC Khwaja Sharif. Khalid Wasti explains why:
لاہور ہائی کورٹ کے چیف جسٹس نے تقریبا بیس نئے ججوں کی تقرری کے لیئے اپنی سفارشات گورنر پنجاب کی وساطت سے چیف جسٹس سپریم کورٹ کو ارسال کی تھیں جو گورنر پنجاب نے واپس کر دیں –
میڈیا کا ایک حصہ اس بات کو اچھال رہا ہے کہ سفارشات واپس کرنے کی وجہ یہ تھی کہ اس لسٹ میں
پیپلز پارٹی کا کوئی جیالا شامل نہیں تھا – اس بات میں کوئی جھوٹ نہیں – یہ بالکل سچ ہے – لیکن یہ
پورا سچ نہیں ہے – پورا سچ یہ ہے کہ اس لسٹ میں پیپلز پارٹی کا کوئی جیالا شامل نہیں تھا لیکن بیس کے بیس ناموں کا انتخاب شیر پنجاب کی پارٹی سے کیا گیا تھا
اب کہانی قدرے مزید کھل کر سامنے آتی ہے – رستم پنجاب نے ان سفارشات کو اس لیئے روک کر رکھا ہوا تھا کہ خواجہ شریف کی سپریم کورٹ میں تعیناتی کے وقت تک انتظار کیا جائے اور جب ثاقب نثار ہائی کورٹ کا چیف جسٹس بن جائے تو اسے نئی سفارشات مرتب کرنے کے لیئے کہا جائے – دوسری طرف قاضی القضاء بھی اصل کھیل سے بےخبر نہیں بلکہ خود اس ڈرامے کا ایک کردار ہیں اس لیئے انہوں نے صدر پاکستان کو سفارش کی کہ خواجہ شریف کو ہائی کورٹ کا جج رہنے دیا جائے اور ان کے جونیئر ثاقب نثار کو سپریم کورٹ بھیج دیا جائے –
مقصد صاف ظاہر ہے کہ رستم پنجاب ان سفارشات کو کب تک دبا کر اپنے پاس رکھ سکتا ہے ؟ چنانچہ خواجہ صاحب کی تلوار کو رستم پنجاب کے سر پر لٹکائے رکھنا ہی اس مسئلے کا مناسب حل تھا –
خواجہ شریف صاحب نے اپنی خود نوشت میں تحریر کیا کہ جب وہ وکالت کی پریکٹس کرتے تھے تو ان کے پاس اتنے پیسے نہیں تھے کہ وہ اپنے بیٹے کو اعلی تعلیم کے لیئے بیرون ملک بھجوا سکتے – یہ سب اخراجات شہباز شریف نے برداشت کیئے – وہ مزید لکھتے ہیں کہ خدا تعالی کے بعد اگر میں کسی کا شکر گزار ہوں تو وہ شہباز شریف ہیں
خدا وندا ترے یہ سادہ دل بندے کدھر جائیں
کہ درویشی بھی عیاری ہیں سلطانی بھی عیاری
Federal government rejects all nominations and explains its objections
Striking down Justice Khwaja Sharif’s entire lot of nominees for appointment as judges of the Lahore High Court, the federal government has formally informed the Chief Justice, Justice Khwaja Sharif, that his list contained serious “flaws” and did not meet the set constitutional criteria.
A list of objections has been sent to the LHC CJ through Punjab Governor Salman Taseer, asking the CJ to address them prior to sending his revised list of nominees. The federal government, according to sources, was also grossly disappointed by the total absence of any female nominees.
LHC CJ Khawaja Mohammad Sharif has now been told by the Law Ministry that his summary, seeking nomination of 23 advocates and six judicial officers, as additional judges, contained serious flaws, and there were certain reservations which needed to be addressed before any consideration of those names by President Asif Ali Zardari.
The Law Ministry was surprised to note that no background of any nominee was provided, including the professional history of any nominee. But, despite these lapses, the Punjab governor had still recommended 19 names, but the Law Ministry did not agree with the governor as in its official assessment “sufficient credentials” were not given in the summary to convince the concerned competent authority. The sources said the federal government also upheld the objections of Governor Taseer, who had made it clear to President Zardari in his own comments that the LHC CJ had simply sent him the names and did not forward the required details about their past. For example, sources said, the main objection against these names was that the LHC CJ did not mention when a particular advocate now recommended for slot of a judge had joined the legal profession.
Likewise, the Punjab governor had charged the CJ LHC of demonstrating “nepotism” in nominees selection as either he gave preference to lawyers working directly or indirectly in his own chamber at Lahore, or those who were linked with Hamid Khan Group. Likewise, the nomination of lawyers from a ‘certain biradri’ had apparently stressed both the Punjab governor and now the federal government, sources said. Likewise, nomination of 12 lawyers out of 23 from Lahore had also caused some consternation in Islamabad.
The source said the LHC CJ has also been informed that he had evidently ignored certain judicial officers, bypassing the principle of seniority and legitimate expectancy stating in his letter that “either their performance is not up to the mark or they don’t enjoy good reputation”. It has now been pointed out that in the interest of the justice and fairness, it would have been more appropriate if the CJ had given specific reasons against each name/judicial officer who had been ignored by him rather than condemning all of them by giving one generalized comment. It has been further pointed out that the “criteria of fitness and suitability has an edge over the seniority and legitimate expectancy, but arbitrarily ignoring seniority is bound to harbour despondency and heart burning in the subordinate judiciary”.
Lack of objective information
It has been objected that in view of the availability of the following data with the office of the chief justice, recording specific reasons to ignore the senior judicial officers would have been possible:
(a) Annual confidential reports of the session judges are recorded by the chief justice;
(b) Complaint against district judiciary are received and processed in the computerized complaint cell of the Lahore High Court;
(c) Performance of the district judiciary is evaluated on monthly, quarterly and yearly basis in the Lahore High Court, keeping in view any explanation called, observations made or strictures passed.
Against them in the high court/supreme court of Pakistan.
(d) Resolution (s) of any Bar Association with regard to the performance or reputation of the judicial officer.
It has now been observed in the list of objections over the list that the above-mentioned factors were not taken into consideration while assessing the suitability of the judicial officer for elevation to the high court. The objections also included confusion created by serious typographical mistakes and also inclusion of a candidate, Mohammad Ramzan Khalid Lurka, who was already past the high court judge’s retirement age of 62.
Charity begins at home, i.e., at the home of PML-N and PTI (Hamid Khan Group)
The Punjab governor had also informed the president that out of 28 persons, recommended by the LHC CJ, five advocates—Shahid Karim, Mamoon Rashid Sheikh, Waqar Hassan Mir, Ms Gulzar Butt and Mian Mahmood—were directly or indirectly affiliated with the Chamber of LHC CJ Khawaja Mohammad Sharif. Similarly, four advocates, Mian Shahid Iqbal, Mohammad Farrukh Irfan Khan, Shaukat Umar Peerzada and Anwer Bhour, are reported to be closely associated with the Hamid Khan group. Source: The News
Why is Zardari frustrated?
گل بانٹے ہے اوروں کی طرف بلکہ ثمر بھی
اے خانہ بر انداز چمن کچھ تو ادھر بھی