PESHAWAR, Dec 2: Confusion persists over the issue whether the superior courts judges should take the fresh oath under the 1973 Constitution or not.

The federal government has not yet clarified whether the judges would take the fresh oath or they would continue to function under the oath they had taken under the Provisional Constitutional Order.

A Peshawar High Court official told Dawn that the issue had been debated in the government and judiciary circles during the last couple of days, especially after the taking of fresh oath under the Constitution by the President of Pakistan and provincial governors.

The official, requesting anonymity, said the president had given constitutional cover to the oath of the judges under the PCO by inserting Article 270C into the Constitution through the Legal Framework Order. Now, he added, it was up to the government to decide whether the judges would continue under the same oath or they would be administered fresh oath under the Constitution.

Legal circles claimed that although the president had given constitutional cover to the oath taken by the judges, it would not solve the problem as unless the judges took fresh oath to pledge that they would safeguard the Constitution their continuity in the office would be under the PCO and not under the Constitution.

They pointed out that many judges had been appointed to the Supreme Court and high courts during the military government and they had taken their initial oath under the Oath of Office (Judges) Order, 2000, issued by the chief executive under the PCO. They said that majority of the articles of the Constitution were revived by the Chief Executive, including Article 270C, through which the judges’ oath had been legalized. Under the same article, they said, even the removal of judges by the government had been validated.

Six out of 15 judges of the Peshawar High Court have been appointed by the military government and they have taken the oath under the PCO. These judges are: Justice Qazi Ahsanullah Qureshi, Justice Ijazul Hassan, Justice Qaim Jan Khan, Justice Ijaz Afzal, Justice Fazlur Rehman Khan and Justice Dost Muhammad Khan.

The other nine judges were appointed under the 1973 Constitution, however, after the military takeover they were administered fresh oath under the PCO in January 2000.

The newly inserted Article 270C states: “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 (No1 of 2000), 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 cession of office shall have effect accordingly.”