Peshawar: 17, Dec,08. The President of Pakistan Jurists Association Mian Muhibullah Kakakhel Senior Advocate Supreme Court of Pakistan has termed the appoinment of Chief Justice of Lahore High Court as acting governor of Punjab in the absense of Governor Salman Taseer as unconstitutional, illegal, against the constitutional principle of trichotomy of power and theory of check and balances as contemplated by the constitution.

Mr. Kakakhel said that under article 104 of the constitution when the Governor was absent from Pakistan or was unable to perform his functions the President can appoint " such other person" as the acting Governor as he may direct but " such other person" under the constitution does not mean and include a judge or Chief Justice of the High court. He made a reference to article 199(5) of the constitution where a person has been defined to be any Government or other functionary excluding i.e. not a Judge of High court or the Supreme Court.

Mian Muhibullah Kakakhel stated that when a Chief Justice has been appointed as acting Governor he remains a Judge of the High Court and does not relinquish the charge of his office and under article 199 no writ or order can be issued by one judge of the High court against another Judge of the High Court. In this regard he refered to PLD 1975,karachi and PLD 1976 Supreme Court. He said that the High Court has been Constituted under article 192 of the Constitution and there are special qualifications laid down for appointing a judge of the High Court whose sole duty was to decide issues between one citizen and the other and between citizens and the Government. The constitution, he said, does not complete combining Judicial functions with the executive duties.

He was of the view that the appointment of Chief Justice as acting Governor was also against the constitutional provisions of separation of judiciary from the executive as contemplated by Article 175(3) and the supreme court judgment reported vide PLD 1994 page 105. He was of the opinion that till the time the Chief Justice has been the Governor of the province no Judge of a High Court could issue a writ or an order under article 199 against any illegal action of the Governor or even the other officers of the province by virtue of the clog contained in Article 199(5) of the Constitution.

He said that the Lahore High court is not properly constituted now and is disfunctional. The Judgments of the Lahore High Court Judges delivered in violation of article 192 of the constitution would remain questionable.

Mr. Kakakhel said that the practice of appointing the Chief Justice as acting Governor during dictorial period must end now and be discontinued in the intrest of justice, fair play, supremacy of the Constitution and democracy.