PESHAWAR, July 19: The delay in the appointment of acting chief justice of the Peshawar High Court by the government has given rise to constitutional questions, with some lawyers contending that there could not be a high court without a chief justice.

The PHC chief justice, Justice Mian Shakirullah Jan, left for abroad on July 8 and will remain out of the country till July 28.

Some legal experts believed that one of the major reasons for not appointing acting chief justice was that the judges of the superior courts had taken oath under the Provisional Constitution Order (PCO) and an acting chief justice has to take oath now under the 1973 Constitution.

“Appointment of acting chief justice is a mandatory provision under the Constitution as in article 192 a high court has been defined as a Chief Justice and so many other judges as determined by law,” said an ex-president of Peshawar Bar Association and member of NWFP Bar Council, Sher Afghan Khattak.

He added that article 196 of the Constitution provided that at any time when the office of the chief justice of the high court is vacant, or the chief justice is absent or is unable to perform the function of his office due to any other cause, the president should appoint one of the other judges of the high court, or may request one of the judges of the Supreme Court, to act as chief justice.

Mr Afgan pointed out that all the judges of the superior courts had taken oath under the PCO. He added that now with the revival of the Constitution the difficulty faced by the government was that an acting chief justice could not be given oath under the PCO and the oath under the Constitution would amount to putting the acting chief justice out of the influence of Gen Pervez Musharraf.

Chairman ‘Voice of Prisoners’ Noor Alam said that it was reported that the chief justice had informed the government about his visit abroad. He added that by not appointing an acting chief justice the government had violated the Constitution.

Mr Alam regretted that the government had not yet resolved the issue of fresh oath of the judges under the Constitution. He added that the president and the governors of the provinces had taken fresh oath under the Constitution, whereas the judges of superior courts had still not been given fresh oath under the Constitution.