December 17, 2002	Tuesday	Shawwal 12, 1423

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ISLAMABAD, Dec 16: The government has asked the superior judiciary to decide itself the issue of oath to judges and if it was of the view that a fresh oath was needed, the government would have no objection to administering the fresh oath to them, a top legal aide of the government told Dawn.

The issue of fresh oath to the judges would be decided when all the judges of the Supreme Court would return to Islamabad in January after working at their home stations, he said.

The government aide whose main job is to maintain a liaison with the superior judiciary, said that the government was of the view that there was no need for fresh oath even for those judges who were inducted into the judiciary during the last three years, as there was a deeming clause in the Legal Framework Order. However, if the judiciary was of the view that a fresh oath was needed the government would have no objection.

The issue of oath to judges has become controversial as a number of opposition parties are demanding fresh oath to all the judges who had taken the oath “to abide by the provisions of the proclamation of Emergency of the Fourteenth day of October, 1999, and Provisional Constitutional Order No 1 of 1999.”

Those who had refused to abide by the PCO had to leave their job. Six of them were the Supreme Court judges including the Chief Justice, Saeeduzzaman Siddiqui.

Of the total 18 judges of the Supreme Court, including an ad hoc judge, only Chief Justice Shaikh Riaz Ahmad and the senior puisne judge, Justice Munir A. Sheikh, are the only two judges who have taken the oath under the Constitution and also under the PCO. All the remaining judges have taken the oath only under the PCO.

Situation in the high courts is also not different where an overwhelming number of judges are those who were inducted in the last three years, and are familiar only to the oath under the PCO and not under the Constitution.

The government officials say that there is no such precedent and the previous military government, after reviving the Constitution, had not invited the judges to take the fresh oath.

An opposition member pointed out at the inaugural session of the National Assembly that the oath administered to the president by the chief justice was not valid, as he himself had not taken the oath under the Constitution.

The government at one stage was apprehensive that if the judges of the superior judiciary including the chief justice, were administered fresh oath, aspersions might be cast on the oath of office of President Pervez Musharraf, who was administered the oath by the chief justice on Nov 16, 2002.

The government aide pointed out the deeming clause in the Legal Framework Order 2002, which covered the whole issue. The deeming clause reads as “270C. Oath of Office of Judges, etc:- Notwithstanding anything contained in the Constitution, all persons appointed as judges of the Supreme Court, high courts and Federal Shariat Court who have taken oath under the Oath of Office (Judges Order 2000 (1 of 2002) or not having been given or taken oath under that order have ceased to continue to hold the office of a judge shall be deemed to have been appointed or ceased to continue to hold such office, as the case may be under the Constitution and such appointment or cessation of office shall have effect accordingly.”