LAHORE, July 6: Following is the operative part of the 72-page Supreme Court judgment on five constitutional petitions challenging the elevation of three relatively junior judges of the Lahore High Court.

31. Last but not the least the appointments in question had the blessings of the succeeding Chief Justice and judicial consultee Mr. Justice Muhammad Bashir Jehangiri who was consulted by the then Chief Justice of Pakistan at the initial stage and before whom all the four Judges made oath at the final stage i.e. on 10th January, 2002. The impugned notification was issued on 26th December, 2001 with an explicit recital that the appointments will take effect from 10th January, 2002, namely, the day when four vacancies were available. Mr. Justice Muhammad Bashir Jehangiri had taken oath as Chief Justice of Pakistan on 7th January, 2002 but he did not make any move for withdrawal of the impugned notification. Had he not endorsed the recommendations and the appointments he would have certainly asked for a back reference or sent his own recommendations or refused to administer the oath of office to the appointees. Another noteworthy circumstance which points to ratification by Mr. Justice Muhammad Bashir Jehangiri of the appointments made in advance is that on 31st January, 2002 he had presided over the Bench which had heard one of the above-mentioned Constitution Petitions but had not suspended the impugned notification. 32. This brings us to the next common contention that the senior Judges of the Lahore High Court were condemned unheard and even in these petitions notices have not been issued to them. It is rather unnecessary to consider the contention as we have already held that the recommendations of the judicial consultee are not justiciable. Be that as it may, the contention is misconceived. The recommendations in question were manifestation of subjective satisfaction of the judicial consultee, therefore, the principle of natural justice ‘audi alteram partem’ was not attracted. Moreover, the contention in essence is identical with contentions No. (iv) and (vii) raised in the case of Ghulam Hyder Lakho which read as under:-

“(iv) That the petitioners were de-notified or the appointments were nullified by the Government without hearing them and as such the action of Government nullifying their appointments as Judges of the High Court offended against the principles of natural justice.”

“(vii) That the removal of the petitioners from the office of Judges of the High Court in the above manner amounted to a stigma and as such the petitioners were entitled to be heard.”

The above contentions were held to be devoid of force as is evident from the following observations at page 196 of the judgment:-

“In these circumstances, we are inclined to hold that where the Chief Justice of the High Court concerned and the Chief Justice of Pakistan do not recommend a particular incumbent for confirmation or appointment as a Judge of the High Court and these recommendations are accepted by the President/Executive the same cannot be brought under challenge in the Court on the ground that the incumbent was not heard before making such recommendations.”

33. As regards the question of notices we are of the considered view that issuance of notices to the concerned Judges will do more harm than good. This question was considered in the Judges case also and it was clearly held at page 534 of the judgment that the principle of natural justice is not violated if notice is not issued to the concerned Judges. The observations in Asad Ali’s case at page 327 of the judgment are also relevant which read as under:-

“It must be borne in mind that Judges of Superior Courts by their tradition, maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue. They are also not expected to litigate in Courts like ordinary litigant in case of denial of a right connected with their offices. Article VI of the Code of Conduct signed by every judge of the Superior Courts also enjoins upon them to avoid as far as possible any litigation on their behalf or on behalf of others. Therefore, in keeping with the high tradition of their office and their exalted image in the public eye, the judges of Superior Courts can only express their disapproval, resentment or reservations on an issue either in their judgment or order if the opportunity so arises....”

34. We will now take up the contention urged by the learned counsel for the petitioners against the appointment of Mr Justice Faqir Muhammad Khokhar who was serving as Secretary, Law, Justice and Human Rights Division at the time of his elevation to the Supreme Court. The precise contention is that having not performed judicial functions as a Judge of the Lahore High Court for a period of five years he was not qualified for appointment as a Judge of the Supreme Court and his appointment was also hit by the cardinal principle of natural justice ‘no one should be a judge in his own cause’ on account of the pivotal role of the incumbent of the office of Law Secretary in the process of the constitutional appointments. This contention too is without any substance as it is incompatible with the provisions of Article 177 of the Constitution and ignores the law laid down by this Court in Malik Ghulam Jilani v. Mr Justice Muhammad Gul (1978 SCMR 110). With regard to experience, Article 177 of the Constitution only provides that a person shall not be appointed as a Judge of the Supreme Court unless he has been a Judge of a High Court for a period of or for periods aggregating not less than five years and does not prohibit appointment of a Judge of a High Court as a Judge of the Supreme Court who has not worked as Judge of the High Court for a period of five years. The disqualification set up by the petitioners cannot be read into Article 177 of the Constitution. Mr Justice Faqir Muhammad Khokhar was appointed as a Judge of the Lahore High Court on 10th December, 1996 and as Secretary Law, Justice and Human Rights Division on Ist January, 2000. Having held the office as a Judge of the Lahore High Court for a period of five years he fulfilled the experience-related constitutional requirement on the eve of his appointment as a Judge of the Supreme Court. Besides, the issue was addressed and settled in the case of Justice Muhammad Gul wherein it was held that contention that a person in order to be qualified for appointment as a Judge of the Supreme Court must have had experience of functioning as a Judge of High Court for five years was not correct. In that case also Mr Justice Muhammad Gul was Secretary, Ministry of Law and Parliamentary Affairs, Government of Pakistan at the time of his appointment as a Judge of the Supreme Court and the appointment was challenged through a writ petition under Article 199 of the Constitution on the ground that he did not fulfil the requirement of Article 178(2) of the Interim Constitution, 1972 that a person shall not be appointed as a Judge of the Supreme Court unless he has for a period of or for periods aggregating not less than five years been a Judge of a High Court. The writ petition was dismissed in limine by a Division Bench of the Peshawar High Court and the petition for special leave to appeal was dismissed by this Court, inter alia, with the following observations:-

“The phraseology of Article 178(2) of the Interim Constitution does not bear out the intent attributed to it by the petitioner. The words used are “he has for a period of, or for periods aggregating not less than five years been a Judge of the High Court.” If the authors of the Constitution had so intended they would have used some other words to indicate that not only has he held the office of a Judge but also functioned or worked as a Judge”.

35. Article 177(2) (a) of the Constitution is pari materia with Article 178 (2) (a) of the Interim Constitution, therefore, the ratio of the case of Justice Muhammad Gul is fully applicable to the present case and cannot be termed as a weak precedent as contended by Mr Hamid Khan. Mr Justice S.A. Nusrat was also serving as Secretary, Ministry of Law and Parliamentary Affairs when he was elevated to the Supreme Court. We would, therefore, reiterate that appointment of a Judge of a High Court as Secretary Law, Justice and Human Rights Division cannot stand in his way for appointment as a Judge of the Supreme Court if he has been a Judge of the High Court for a period of or for periods aggregating not less than five years. The period of his service as Secretary, Law Justice and Human Rights Division has to be counted towards his tenure as a judge of the High Court and not excluded therefrom. 36. It was repeatedly submitted by the learned counsel for the petitioners that the record pertaining to the appointments in question should be made public to enable them to meet the views of the judicial consultee and the appointing authority in regard to the concerned Judges. The insistence was based on the ground that the said record being public record, the petitioners as also the concerned Judges cannot be deprived from its inspection. The submission was opposed by the learned Attorney General and the learned counsel for the Federation. It has already been held that the recommendations culminating in the impugned appointments are not justiciable in the absence of difference of opinion between the President and the Chief Justice of Pakistan. In the face of these findings the issue of inspection of record has become redundant. In any case, we are of the view that apart from the element of confidentiality, making the record of the impugned appointments public would not be in the interest of the institution, the judicial consultee and the concerned Judges for reasons which are too obvious to need elucidation. In the Judges case also the relevant record was made available pursuant to the order of the Court but was not perused even by the members of the Bench. The relevant observations appear at page 369 of the judgment and read as under:-

“The Federal Ministry of Law cooperated and made the record available to be produced in the court on an hour’s notice. We did not feel it necessary to peruse the record.”

The learned Attorney General and the learned counsel for the Federation have advanced sound and convincing reasons in support of the proposition that making the record of appointments public would not be in the interest of the judiciary. Disclosure of such record if adverse to a Judge would indeed block his way for elevation in future. Furthermore, such course of action would not only put a Judge under the vestige of a stigma but also militate against the public interest and shake public confidence in the judiciary. 37. Now two questions remain to be considered. The first question pertains to severability or otherwise of the impugned notification and the second to the collegium of Judges comprising the Chief Justice of India and four senior-most Judges of the Supreme Court which is consulted by the Chief Justice in the process of appointment of Judges of the Supreme Court of India. The first question need not be determined in view of settled proposition that recommendations of the judicial consultee are not justiciable. As regards the second question suffice it to say that the consultative process in vogue in India cannot be adopted in Pakistan as there exists no provision in our Constitution akin to Article 124(2) of the Constitution of India on the strength whereof collegium of Judges have been formed in India. Article 124(2) of the Constitution of India reads as under:-

“(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the president may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

Provided further that

(a) a Judge, may, be writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office in the manner provided in clause (4)”.

It may, however, be observed in passing that a practice has emerged over the years that while making recommendation for appointment of a Judge of the Supreme Court the Chief Justice of Pakistan consults the senior puisne Judge, as was done in the present case. 38. In view of the judgment passed by this Court, no order is required to be made in respect of the writ petitions summoned from the Lahore High Court, which may be returned. 39. The above are the reasons in support of the Short Order dated 10th April, 2002 of this Court whereby these petitions were dismissed. The Short Order reads as under:-

“For reasons to be recorded later in the detailed judgment, the above petitions are dismissed.” 40. Before parting with the judgment we would like to record our appreciation for the valuable assistance rendered by the learned counsel for the parties and the learned Attorney General for Pakistan and their associates.

(Concluded)