Maulvi Tamizuddin Khan

The Test of Time - my life and days

Appendix

Appendix I

The Constituent Assembly case 1954-55 in an important event in the life and activities of Maulvi Tamizuddin Khan; he fought the mighty Governor General Gholam Mohammed in this case almost single-handed; and won a unanimous verdict in his favour from the Sind Chief Court, declaring that the dissolution of the Constituent of the Constituent Assembly by the Governor General was illegal and invalid, restoring Mr. Khan to his position as President of the Assembly, and preventing Government from obscuring him in the exercise of his functions. This judgment was, however, sat aside in appeal to the Federal Court, with one Judge a Britisher-dissenting. The dissolution of the Constituent Assembly was thus legalized; but this created a lot of legal and administrative complications, to obviate which the Governor General made a Special Reference to he Federal Court again for opinion.

These Judgments/orders are quite lengthy in size, and would not interest the general public very much. Therefore, Excerpts have been selected from these, in the interest of economy of space and cost, without jeopardizing, it is hoped, the main theme end conclusions.

Copies of four Letters from the President of the Constituent Assembly to the Prime Minister, dated 1951-52, are also being annexed, which may throw some light on the matter of delay in Constitution-making in Pakistan. There were some more letters relevant to this, but they have been misplaced.

 IN THE CHIEF COURT OF SIND

Extraordinary/Special Jurisdiction

 Before

The Honorable Mr. Justice Constantine, the Chief Judge.

The Honorable Mr. Justice Vellani

The Honorable Mr. Justice Mahomed Bachal

and

The Honorable Mr. Justice Muhammad Bakhsh.

Write Petition No. 43 of 1954.

Maulvi Tamizuddin Khan ……………….. Petitioner.

 

Versus

  1.  Federation of Pakistan
  2. Mohammed Ali, Prime Minister of Pakistan
  3. Chaudhri Mohammed Ali, Member, Council of Ministers
  4. Major-General Iskander Mirza, Member, Council of Ministers.
  5. M.A.H. Ispahani, Member, Council of Ministers.
  6. Dr. A.M. Malik, Member, Council of Ministers.
  7. Dr. Khan Sahib, Member, Council of Ministers.
  8. General Mohammed Ayub Khan, Member, Council of Ministers.
  9. Ghyasuddin Pathan, Member, Council of Ministers.
  10. Mir Ghulam Ali Talpur, Member, Council of Ministers.
  11. Estate Officer, Government of Pakistan ………… Respondents.

Mr. D.N. Pritt,

Mr. I.I. Chundrigar,

Mr. Wahid-ud-Din Ahmed,

Mr. Manzar-e-Alam

Mr. Syed Sharifuddin,

Mr. Mohd. Naseem,

Mr. Homi P. Nocilwala, Advocates for the petitioner:

Mr. Faiyaz Ali, Advocate-General of Pakistan assisted by Mr. Abdul Haq for respondents 1, 2, 3, 6 and 9.

Mr. Manzur Qadir, assisted by Mr. Muhammad Ismail Bhatti for respondents 4, 5, 7, 8 and 10.

9-2-1955

 

JUDGMENT

  1. CONSTANTINE. C.J.:–On 24thOctober 1954 His Excellency the Governor-General issued a proclamation which my learned brothers Vellani and Muhammad Bakhsh have set out in full.

In pursuance of the proclamation the cabinet was reconstituted, respondents 4, 5, 7, 8 and 10 not being members of the Constituent Assembly. The petitioner was informed by respondent 4 that the Constituent Assembly had been dissolved, and the Constituent Assembly was prevented from meeting. The petitioner as President of the Constituent Assembly prays for writ of mandamus and quo warranto.

(i)     to restrain the respondents from giving effect to the proclamation and from obstructing the petitioner in the exercise of his functions and duties as President.

(ii)   to determine the validity of the appointment as Ministers of respondents 2 to 10.

The facts are not in dispute.

The respondents rely on objections both preliminary and as to the merits.

The first preliminary objection is that any constitutional provision requires not only passing by the Constituent Assembly, but also assent by the Governor-General as conditions of valid enactment: this assent being absent, section 223 A of the Government of India Act fails and with it fails the writ jurisdiction which it purports to confer. This same objection applies to new section 10 of the Government of India Act, which purports to limit the discretion of the Governor-General in his choice of Ministers, and the objection thus also pertains to the merits of the prayer for a writ of quo warranto.

The validity of laws enacted by the Constituent Assembly has been tested in the Courts of Pakistan, including the Federal Court. Only once has this objection been argued, and it was then overruled by Agha, J. sitting alone in P.L.D. (1950) Sind 49, the argument then being founded upon section 6 (3) of the Indian Independence Act. Many Acts spread over the period since partition have been passed by the Constituent Assembly, and in particular it may be noticed that what I may call the Privy Council jurisdiction of the Federal Court rests upon law enacted by the Constituent Assembly. It seems obviously presumable that unit the present petitions, the Law Officers of the Crown considered assent not necessary. The objection is novel, and if accepted would upset a consistent course of practice and understanding.

The learned Advocate-General relied both upon prerogative and section 6 (3) of the Indian Independence Act 1947, and I will deal with the latter first.

The preamble of the Independence Act is as follows:

To make provision for the setting in India of two indecent Dominions, to substitute other provisions for certain provisions of the Government of India Act, 1935, which apply outside those Dominions, and to provide for other mattes consequential on or connected with the setting up of those Dominions.

        Section 1 provides for the setting up of the two independent Dominions of India and Pakistan. Sections 2, 3, and 4 provide for the divisions of British India between the two new Dominions. Section 5 provides for appointment by Her Majesty of a Governor-General who shall represent Her Majesty for the purposes of the Government of the Dominion. By sections 6 and 7 Parliament and Her Majesty’s Government in the United Kingdom abdicated power and responsibility over the new Dominions. By section 6 the Legislatures of the new Dominions shall have full power to make laws repugnant to the law of England and any act of Parliament, while Parliament itself abandons its power to legislate for the new Dominions: by subsections 3 it is provided that the Governor-General shall have full power to assent (in His Majesty’s name) to any law of the Legislature of the Dominions and provisions as to disallowance or reservation in any act shall cease to apply to the new Dominions. Pausing here, it should be noted that the word “in His Majesty’s name: were deleted by Act of the Constituent assembly from this sub-section and also from section 18 of the Government of India Act in 1950 with retrospective effect, but for the purposes of the learned Advocate-Generals argument (which would invalidate the amending Act) the deletion is to be ignored.

        After these abdicatory sections we reach in section 8 the temporary provision as to government of each of the new Dominions. The powers of the Legislature of the Dominion shall, for the purpose of making provision as to the Constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly, and references in this Act to the Legislature of the Dominion shall be construed accordingly. The Dominion is to be governed by the Government of India Act as nearly as may be except in so far as other provision is made by or in accordance with a law made by the Constituent assembly, subject to certain express provisos and the power under section 9 of the Governor General-limited to a time which has now expired-to amend the Government of India Act. The important relevant provisos were the elimination of any control of His Majesty’s Government in the United Kingdom, of discretion and individual judgment of the Governor General and Governors, and of reservation and disallowance of Provincial legislation, and lastly that the powers of the Federal Legislature should in the first instance be exercisable by the Constituent Assembly in addition to the powers exercisable by it in sub-section (1). Sections 10, 11, 12, 13 and 14 contain particular provisions regarding the various services. Section 15 deals with litigation by or against the Secretary of State, section 16 with Aden, and Section 17 with divorce jurisdiction. Section 18 provides inter alia for the continuance of the existing law of British India, except in so far as altered by competent authority, and for the lapse of Instruments of Instructions. Section 19 is an interpretation section and in particular subsection (3) provides that in relation to Pakistan references to the Constituent Assembly shall be construed as references to the Assembly set up or about to be set up at the date of the passing of this Act under the authority of the Governor General, and gives power to the Assembly to make provision for representation in the Assembly of Indian States and tribal areas and the filling of casual vacancies: an amendment by the Assembly gives power to it to increase, reduce or redistribute seats therein.

The key to the interpretation of the Act is provided by the preamble-the independence of Pakistan. The purpose of section 6 is to efface the supremacy of Parliament in the United Kingdom and to confer power, unfettered by any control from the United Kingdom, upon the Legislature of the Dominion. The Legislature of the Dominion has not been defined but the wording in subsection (1) of section 8 “shows that it is not restricted to the Constituent Assembly, but refers to future legislative bodies, and further that the legislature of a Dominion is not restricted to making provision as to the constitution. The Federal Legislature until other provision is made by the Assembly is also part of the Legislature of the Dominion. This is consistent with subsection (3) of section 8 which provides that any provision of the Government of India. Act which limits the power of the legislature of the Dominion shall …… have the like effect as a law of the Legislature of the Dominion limiting for the future the powers of that Legislature. I think that the use of a small or a capital letter in the word “legislature” is irrelevant.

Legislature of the Dominion appears thus to be a comprehensive term, embracing every legislature which has power to legislate for the Dominion as a whole whether its power is derived from the Independence Act or from the future legislation of the Constituent Assembly, and whether its power is derived from the Independence Act or from the future legislation of the Constituent Assembly, and whether its power is restricted to or does not extend to the making of constitutional laws.

        When we turn to subsection (3) of section 6 we find that the Governor General’s full power to assent is accompanied by deletion of disallowance, reservation, and suspension, and in my opinion the purport of the section is to provide that the Governor General’s power of assent is not to be controlled by Her Majesty: this is in keeping with the key to interpretation provided by the preamble-the declaration of independence-and with the purport of sections 5, 6 and 7-the abdication of all control by the Crown, Parliament, and Government of the United Kingdom. As Agha, J. held sub-section (3) does not provide that assent is necessary, but that if assent is necessary the Governor General shall have the full power. The necessity of assent was retained in the Government of India Action respect of the Federal Legislation: no corresponding provision necessitating consent in respect of the Constituent Assembly was inserted in the Independence Act.

        The Crown in exercise of the prerogative may legislate for conquered or ceded territories of the Crown, but he prerogative is subject to legislation by Parliament binding the Crown by express words or necessary implication. The legislature of the Dominion is given full powers to make laws for the Dominion, and its powers for the purpose of making provision as to the constitution of the Dominion are exercisable by he Constituent Assembly. The Crown is not named as sharing in those powers, and the clear implication is that the Crown is excluded.

Section 10 of the Government of India Act substituted by the Government of India (5th Amendment) Act 1954 is thus valid, and it follows that prima facie those respondents who were not members of the Federal Legislature have been illegally appointed as Ministers. After a faint attempt at argument by Mr. Pritt who had not had the time to study the various notifications, it was conceded by Mr. Chundrigar that other respondents were saved by the new section 10-A. For the opponents it was argued that, the Legislature being dissolved, it was impossible to appoint Ministers from the Legislature: that may be so, but no attempt has been made to show that Government could not continue without appointment of fresh Ministers.

        That section 223 A, if valid, confers upon this Court the power to issue writs in the nature of quo warranto is undisputed. The learned Advocate General argued that he writ can issue only at the instance of the Crown; and not against persons appointed to office by the Crown: this argument was advanced by the Attorney General and rejected by the King’s Bench Division, Lord Reading presiding, in Speyer’s case.

        The Advocate General argued from the Palikamedi case that where the subject-matter falls beyond the local limits of the High Court’s jurisdiction, this Court has no power to issue a writ. Now that Privy Council case was concerned with the jurisdiction of the Madras High Court as heir to the jurisdiction of the Supreme Court to issue a writ of certiorari. The Supreme Court’s local jurisdiction was confined to Madras city: the Sadar Diwani Adalat exercised jurisdiction over the mofussil and had not the power to issue such writs. The power to issue such writs was confined to the High Courts of the Presidency Towns. Therefore the Privy Council held that the mere location of the Board of Revenue inside the city limits did not entitle the High Court to review its orders passed in respect of a subject matter located outside the city. Now however section 223-A has covered the whole area of the Dominion (excluding acceding States) with writ jurisdiction divided between the High Courts: the only condition is that the person or authority to whom the writ is issued shall be within the local jurisdiction of the High Court. Can the High Court then now issue writs where the authority is within its limits, but the subject-matter lies without its limits. ON such a point English Law provides no guidance; for the King’s Bench had jurisdiction throughout the whole of England. The Supreme Court of India has decided in the affirmative. It is not however, necessary to decide the point: for it is clear that Central Ministers even if their jurisdiction extends beyond Sind and Karachi, yet exercise jurisdiction within Sind and Karachi.

I would therefore issue a writ in the nature of quo warranto against respondents 4, 5, 7, 8 and 10.

The proclamation has been accepted by the parties as purporting to dissolve the Constituent Assembly. Has the Governor General the power to dissolve the Assembly? This question is resintegra. The opponents based the power on prerogative and upon the statutory power which they argue is conferred by the section 19(3) (b) of the Independence Act. The Governor General by order under section 9 amended the Government of India Act so as to deprive the Governor general of he power to dissolve the Federal Legislature while retaining the power to summon and prorogue. The Independence Act is silent regarding summoning, proroguing or dissolving the Constituent Assembly. By rule 9 of the Rules of Procedure, the President is given the power to summon and prorogue: dissolution according to rule 15 is possible only by resolution assented to by at least two thirds of the Assembly. It is argued by the petitioner that the power to dissolve the Federal Legislature was taken out from the Government of India Act because the Governor General had no power to dissolve the Assembly. The opponents on the other hand argue that because the Assembly exercises the powers of the Federal Legislature therefore the Federal Legislature’s dissolution would automatically accompany the dissolution of the Assembly and therefore it was inappropriate to retain any provision for dissolution of the Federal Legislature, and therefore the omission of the Governor General’s power to dissolve the Federal Legislature does not support any inference that the Governor General has no power to dissolve the Assembly. I consider that the opponents argument is correct to this extent, that from the taking away of the power to dissolve the Federal Legislature no inference is deducible as to dissolve the Federal Legislature no inference is deducible as to the presence or absence of power to dissolve the Constituent Assembly: for suppose that the Independence Act had expressly stated that the Governor General had no power to dissolve the Constituent Assembly and alternatively suppose such power had been expressly given, yet in either case it would have been appropriate to take away the power to dissolve the Federal Legislature. The India Independence Act contains no express provision for dissolution of the Assembly. Judging by rule 15 and by the proclamation it appears common ground that both the Assembly and the Governor General considered that the Assembly was subject to dissolution. Did Parliament intend that it should be subject to dissolution? Throughout the Commonwealth the membership of every representative legislature is renewable in order that it may more faithfully represent the opinion of those whom it represents: on the other hand, as the very name shows, a constituent assembly is created for particular and temporary purpose of framing a constitution, and it is arguable with equal plausibility that to effect this purpose was not expected by Parliament to take a long time and that the effecting of the purpose, that is the framing of constitution, would ipso facto achieve the suppression of the temporary legislature which had framed the new constitution by the temporary legislature which had framed the new constitution by the permanent legislature for which the new constitution would provide. Now in England the dissolution of Parliament is a matter of prerogative (Hal. 2nd ed. Vol. VI para 554): but Parliament in England, like the prerogative, is a creature of the common law. Where legislatures have been created by statue, dissolution has been provided for by statute. (Hence the contrasting omission in the Independence Act appears deliberate). There is no case throughout the Commonwealth outside England where dissolution of a legislature takes place except by express provision in the Constitution, whether granted by statute or order in council. The prerogative of dissolution in my opinion extends only to the parliament of the United Kingdom: elsewhere dissolution is dependent  upon statue or order in council.

The learned Advocate General relied upon section 19(3) (b) which reads “Reference in this Act to the Constituent Assembly of a Dominion shall be construed as references …….. (b) in relation to Pakistan to the Assembly set up or about to be set up at the date of the passing of this Act under the authority of the Governor General as the Constituent Assembly for Pakistan”. This provision, he argued, is to be construed according to section 32(1) and (2) of the Interpretation Act 1889 (52 and 53 Vict. C. 63): (1) Where an Act. ….. confers a power ……, then unless the contrary intention appears, the power may be exercised …….. from time to time as occasion occurs.

(2)   When an Act………confers a power… on the holder of an office, as such, then unless the contrary intention appears, the power may be exercised…… by the holder for the time being of the office.” Here however a contrary intention appears limiting the power of the Governor General to one period, namely about the date of the passing of the Act.

It follows therefore that the Constituent Assembly’s purported dissolution is a nullity in law, and that both it and the office of its President are still existent. It is common ground that as a result of the proclamation the petitioner has been prevented from performing the functions of his (undoubtedly public) office.  We have the power to issue writs against any Government, and that Government for this purpose includes the Federation of Pakistan appears undeniable. Section 306 of the Government of India Act confers a personal immunity upon the Governor General: it does not limit the scope of proceedings against “Government,” which expression in the case of the Federation of Pakistan corresponds to the executive authority of the Federation of Pakistan corresponds to the executive authority of the Federation exercised by the Governor General either directly or thorough officers subordinate to him. That where an incumbent of a public office has been wrongfully dispossessed of his office mandamus lies against the person so dispossessing him is clear from Rex v. Blooer  2 Burr. 1042 (97 English Reports

I would therefore issue a writ of mandamus restraining the respondents form preventing the petitioner from performing the functions of his office of President of the Constituent Assembly.

I would order the opponents to bear the costs of the petitioner.

 

9th February, 1955         (Sd.) G.B. Constantine,

       CHIEF JUDGE

  

  1. W.B.L. VELLANI, J.

Excerpts:

 “The special task of the Constituent Assembly was to frame the Constitution of the Dominion, and till it had done so, it was to exercise the powers of the Federal Legislature as well” …….. These two categories of power, however, remained distinct, the power of the Federal Legislature being governed by the Government of India Act 1935, and powers of the Constituent Assembly being governed by the Indian Independence Act. (1947).

“It is (therefore) not correct to say that the prerogative to dissolve the Constituent Assembly remains unaffected by the provisions of the Indian Independence Act”.

“Under (C) of subsection (1) of Section 9 of the Indian Independence Act, … the power of the Governor General to dissolve the Federal Legislature was taken away, though his powers to summon and prorogue it were allowed to remain”.

“The prerogative to dissolve is governed by the express provisions of Section 5 of the Indian Independence Act,, and that Section does not enable the Governor General to dissolve the Constituent Assembly”.

“Never before this instance in the entire existence of Pakistan, has any action of Government ever been taken on the basis that a Bill of the Constituent Assembly requires the assent of the Governor General …… Among the numerous Acts… which have been acted upon ..….is the Privy Council (Abolition of Jurisdiction) Act 1950. ….. The Constitution of India a framed by the Constituent Assembly of India under ..…. The same provisions..… was not assented to by the Governor General of India, and the Supreme Court has been treating the Constitution valid and enforcing its provisions”.

It has been said that mandamus does not lie, there being no specific statutory right in the petitioner, and specific statutory duty upon the respondents to maintain the petitioner in his office. `Since the power exists to restore by mandamus a person ousted from his public office, no reason appears why it not be used to restore the petitioner to his high office; it is certainly an office of a public nave and involves emotions and advantages…… `In a case of this nature where the action complained of was so deliberate, it seems idle to suggest that a demand by the petitioner would have led to any compliance on the part of the respondents’ ……`I would therefore issue a writ of mandamus restoring the petitioner to his office as President of the Constituent Assembly and restraining all the respondents from obstructing or interfering with the exercise by the petitioner of the functions and duties of his high office. I would also issue a writ of Quo Warranto against respondents 4, 5, 7, 8 and 10 declaring that by reason to Section 10 of the Government of India Act as amended on 21.9.1954 they are not qualified for appointment as Ministers, not being Members of the Federal Legislature”.

  1. MAHOMED BACHEL, J.

 `I agree in the order proposed by my Lord, the Chief Judge’.

  1. MUHAMMAD BAKHSH, J.

 `The Constituent Assembly held various sessions from time to time. On the Constitution side the work of drafting and enacting the Constitution side the work of drafting and enacting the Constitution for Pakistan was being finalized, and final session in this behalf was to be held and as publicly declared and announced by the Prime Minister of Pakistan, respondent No. 2 himself, the Constitution for this country was to be ready before 25.12.1954, coinciding with the birthday of the Quaid-i-Azam.

`On 24.10.1954 .. the Governor General … was pleased to issue a Proclamation declaring (inter alia) that the constitutional machinery has broken down, a state of emergency … (and also) that the Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function’.

`On 25.10.1954 the final meeting of the Drafting Committee appointed by the Constituent Assembly was held wherein the Draft Constitution was approved and the report of the Committee was finalised and signed on 26.10.1954 between 8.30 and 9 A.M. correspondent No. 4 approached the petitioner and represented to him that in view of the alleged Proclamation of 24.10.1954, the Constituent Assembly was dissolved. He tried to persuade the petitioner to accept that position but the petitioner declined to do so. On 27.10.1954 the Constituent Assembly Building was guarded by a strong Police force and members of the Constituent Assembly including the Deputy President were prevented from entering the said premises’.

`(British) Parliament which had enacted the (Indian) Independence Act gave Parliamentary recognition to the fact that the Acts Passed by the Constituent Assembly did not require the assent of Governor General’.

`The Governor General of Pakistan has himself passed so many orders under various Acts passed by the Constituent Assembly, and never was any question raised on his behalf that any of the Acts was invalid for want of assent …. On the contrary the position was accepted that the Acts were quite valid and good law even though they had not received the assent of the Governor General’.

`In case Sind 49:1950, Mr. Manzoor Qadir Advocate look the plea that no assent was necessary to the Acts of the Constituent Assembly …. The Act did not required the assent of the Governor General, as it was passed by the Constituent Assembly sitting as a Constitution making body and not as the Federal Legislature’.

…. In PLD 1959 Sind 49, a point was actually taken by the advocate of Mr. Khuhro that the assent of the Governor General was necessary, and Mr. Manzoor Qadir appearing for the Federation of Pakistan raised the plea that no such assent was necessary. It was, however, decided very definitely and clearly by the `Court that the assent was not necessary. ….. It was of course amusing to hear Mr. Manzoor Qadir saying now that his own view in 1950 was not mature:

`The Constituent Assembly … was also to act as the Federal Legislature under the 1935 Act, and the life of the Constituent Assembly was to last till the Constitution was made for Pakistan. Therefore, it could not be dissolved till it had completed the Constitution .… The dissolution of the Constituent Assembly will mean the dissolution of the Federal Legislature and vice versa. Because the life of the Constituent Assembly was unlimited and because it could not be dissolved till it had completed the functions for which it was created under the Indian Independence Act, it was impossible to retain the Governor Generals’ power of dissolving the Federal Legislature under Section 19(2)(C). Hence this power of dissolution was deliberately withdrawn with the set purpose’.

`The real position is so simple. The Constituent Assembly being a sovereign body is summoned and prorogued by the President of the Constituent Assembly … while the Constituent Assembly sitting as the Federal Legislature… is summoned and prorogued by the Governor General …. The Governor General’s power of dissolution of Federal Legislature is withdrawn because the dissolution of the Federal Legislature will mean dissolution if the Constituent Assembly which is not permissible under the provisions of the Independence Act’.

`The language employed in the Proclamation is somewhat extra-ordinary… Neither Section 5 Independence Act, nor any other provision of law has been cited in the Proclamation. It does not even say in clear and specific terms that the Constituent Assembly is “dissolved”. Normally, whenever any order is passed, it indicates the provision of law under which the power is exercised … Those responsible for the draft could not think of any provision of law’.

        “The (Constituent) Assembly shall not be dissolved except by a resolution assented to by at least two-thirds of the total number of members of the Assembly” ….. The Indian Constituent Assembly had a similar rule.

“I am unshaken in my belief that the Governor General had no power of any kind to dissolve the Constituent-Assembly”.

“In view of all these reasons (set forth in the Judgment), I allow the petition. A Writ of Mandamus as prayed for will be issued against all the respondents. The appointment of respondents 4-5-7-8 and 10 being illegal, a Writ of Quo Warranto will issue against them. I further direct that the respondents do bear the petitioner’s costs”.

Sd/- Muhammad Bakhsh A. Menon

Judge

 

ORAL ORDER (OF COURT)

Per Curiam: A Writ of Quo Warranto will issue against respondents 4, 5, 7, 8, and 10 prohibiting them from exercising the office of Minister, and a Writ of Mandamus will issue restoring the petitioner to his office as President of the Constituent Assembly by restraining respondents from interfering with his duties and abstracting him in the exercise of his functions.

The opponents will bear the cost of the petitioner of this petition”.

          Sd/-

           G.B. Constantine, Chief Judge

       W.B.L. Vella, Judge

9th February, 1955 Mahomud Bachal, Judge

   Mahomed Bakhsh, Judge

Appendix II

 IN THE

FEDERAL COURT OF PAKISTAN

(APPELLATE JURISDICTION)

 

CONSTITUTIONAL CIVIL APPEAL

  1. I of 1955

(On appeal from the judgment and order of the Chief Court of Sind at Karachi, dated 9 February 1955, in Writ Petition No. 43 of 1954).

  1. Federation of Pakistan
  2. Mohammed Ali
  3. Chaudhuri Muhammad Ali
  4. Major-General Iskander Mirza
  5. M.A.H. Ispahani
  6. Dr. A.M. Malik
  7. Dr. Khan Sahib
  8. General Muhammad Ayub Khan
  9. Ghyas-ud-din Pathan and
  10. Mir Ghulam Ali Talpur ………. Appellants,

Versus

Maulvi Tamizuddin Khan, respondent.

Present:

  1. Muhammad Munir, C.J.
  2. A.S.M. Akram
  3. A.R. Cornelius
  4. Muhammad Sharif, and
  5. S.A. Rahman, JJ.

JUDGEMENTS

(Excerpts)

  1. MUNIR, CJ:

“The Governor General of Pakistan is appointed by the King or Queen and represents him or her… the authority of the representative.. extends to the exercise of the royal prerogative…. Even without express delegation. …. Mr. Mahmud Ali’s contention that in Pakistan the Governor General does not exercise any of the prerogatives of the King is clearly wrong, because here, even under the adapted Act of 1935., the Governor General appoints Governors…. And assent to all legislation under the adapted act of 1935 is given in His Majesty’s name… I do not see how Mr. Mahmud Ali finds it possible to assert that in Pakistan the royal prerogative is not exercised by the Governor General.”

“I am conscious that in thus interpreting the Constitution. I am going against a layman’s idea of an `independent dominion’, the implications of which were not fully understood…. But I am quite clear in by conscience what the duty of a  Judge in such cases is. That duty is rightly to expound the law in complete difference to any popular reaction.”

“All that remains to notice now is the judgment of the Sind Chief Court. That judgment which was delivered after nineteen days of argument and twenty-five days of deliberation, is a disappointing document…..

There is not one word, even a remote reference to the basic question …. Whether it is a wise exercise of discretion for the judiciary to re-install in power a deposed government by issuing enforceable writs against a de facto government’.

“I hold that the Constituent Assembly — acts as the legislature of the Dominion, that ..… the assent of the Governor General is necessary to all legislation; that Section 223A of the Government of India Act under which the Chief Court of Sind assumed jurisdiction to issue the writs did not receive such assent, it is not yet law, and that, therefore, that Court had no jurisdiction to issue the writs. IN view of this conclusion we cannot go into the other issues in the case whatever their general importance may be. I would, therefore, accept the appeal, set aside the judgment of the Chief Court of Sind, and recall both the writs. Parties will bear their own costs throughout”.

  1. AKRAM, J.:

`I agree in the order allowing the appeal’

`The Governor General has full power to give assent to any kind of law proposed by the Legislature of the Dominion (equated with the Constituent Assembly)…. As a result the assent of the Governor General becomes necessary for the validity of even constitutional laws…  I am of the view that…. The assent of the Governor General is necessary before any constitutional measure …. Can pass into law’.

  1. CORNELIUS, J. :

….. I should commence with an expression of my sincere regret at being unable to agree… (with) my Lord the Chief Justice and my learned brothers… In the given circumstances, there is nothing in the law which makes the grant of assent by the Governor General to acts of the Constituent Assembly …. A sine qua non…

`In this Court the decision has been confined to the single question of necessity for the Governor General’s assent’ …. Mr. Diplock (Q.C., appearing for the petitioner) argued at length that a power of dissolution of the Constituent Assembly…. Could be found in Section 5 of the Indian Independence Act…. The force of this argument was materially impeded by two powerful considerations, viz. That in the case of every other Dominion…, the power of dissolution was vested in the Governor or Governor General by express provision in the Constitution, and secondly, by the circumstances that a power of dissolution of the Federal Legislature, which was contained in Section 32 of the Government of India Act 1935, was deliberately taken away in the course of adapting the Government of India Act to the (new) conditions’.

Mr. Diplock (further) argued that the Governor General of Pakistan is the virtual head of the State, and has not only the power but also the duty to act, in face of any great national disaster threatening the country, in such a way as to avert that disaster. His (such) action would be above the law, and consequently, not justiciable. I found it impossible, however, to accede to Mr. Diplock’s further claim that if in such a threatening situation, the Governor General should fail to act, the British Sovereign… would have the power to intervene and to take action for the safety and security of the country …. Such a possibility has never… (existed), and it is easy to imaging that any such action by the British Sovereign would be beset by practical difficulties’.

`On the point of assent, as a requisite derivable from the considerations (a) that the country possessed Dominion State and (b) that it owed allegiance tot he King, Mr. Chandrigar argued that Pakistan and India were constituted not as mere Dominions, but as `Independent Dominions’, and the difference was very strong and very material. Each of these new Dominions was provided, at its very birth, with an apparatus, namely the Constituent Assembly composed of elected representatives of the people for equipping itself with a Constitution of its own choice, even one which could take it out of the oversight of the British Sovereign altogether. No other case of the same kind was known in the history of development of the British Commonwealth. It was, he urged, in consequence of this enormous difference that a great change was brought about in the oath which the Governors-General of Pakistan are required to take upon assuming office. The previous oath was one to be faithful and bear true allegiance of His Majesty the King, etc. but from the very inception of Pakistan the oath has been to bear true allegiance to the Constitution of Pakistan, and to be faithful to His Majesty the King, etc. Allegiance to a Constitution, which, although effective to create a Dominion, could have been changed by the Constituent Assembly at any time, could not be construed as acceptance by the Governor General of the Kind as liege-lord, or to constitute the Governor General as the liege-man of the king. Between allegiance and faithfulness, as forms of human relationship, there as a vast difference… (The British Sovereign is no longer) Queen of Pakistan, but only Head of the Commonwealth.

The materiality of the difference appears from the fact that the other `Independent Dominion’ namely India, became by virtue of a Constitution passed by the Constituent Assembly of that country, which was set up in precisely the same circumstances, Republic. That Constitution did not receive the assent of the then Governor General, and in India also the practice throughout was that Constitutional acts of the Constituent Assembly were sufficiently passed in to law by authentication of the President, and assent of the Governor General was never obtained.

Next Mr. Chandrigar put forward the argument that assent is a form of control over legislation,… and that in relation to the preparation of new Constitutions for the two countries, it was impossible to suppose that any control was intended to be imposed; …. It was repeatedly stated that the Constitution would be settled by Indians for Indians… The British Parliament … could not concern itself with the imposition of control of any kind, whether exercisable form the United Kingdom, or from within the new Dominion of Pakistan …. Section 6(3) of the Independence Act was to be construed as a provision which, broke down with one stroke all pre-existing restraints imposed from the United Kingdom… To suppose that Section 6(3) had the effect of making assent sine qua non was impossible, since that would be to further the powers of the Constituent Assembly.

It was next urged that the Indian Independence Act did not purport to set up a `Legislature… of the Dominion’ a sharp contrast with every other law… creating Dominions. No body of persons was specified which would constitute the `Legislature of the Dominion’. The expression was induced used in a completely abstract sense.

On the other hand, the Constituent Assembly was referred to throughout as a specific body; … in Section 8 Indian Independence Act, which has reference to the exercise of legislative power the Dominion, the Constituent Assembly is mentioned, three times, and each time as a distinct body, differentiated from the `Legislature of the Dominion’…. IN fact the Constituent Assembly could not conceivably be identified with the `Legislature of the Dominion’ for the simple reason that the Constituent Assembly was to be the parent and creator of the `Legislature of the Dominion’, whose shape and form the British Parliament could not presume to set, having once declared that this function was to be performed by the Constituent Assembly of Pakistan free of all control …. The correct position is that the Constituent Assembly was not the `Legislature of the Dominion’, whether it was exercising Constitution-making powers or the powers of the Federal Legislature …. The addition of Section 223A to the Government of India Act had been made by he Constituent Assembly upon motion of the then Law Minister Mr. A.K. Brohi; …. Being a highly important subject of great public interest, the jurisdiction of the High Court, it must be presumed to have been put forward after due consideration by the Federal Government. It did not lie in the mouth of that government now to repudiate this provision.

One cannot fail to observe that the formal order made by the British Sovereign in relation to the Pakistan Governor General contains no instructions or prohibition at all. He is merely enjoined to perform his duties under the interim Constitution …. The Governor General owes nothing to the British Sovereign except his warrant of appointment, issued upon the recommendation of the Government of Pakistan… The Governor General’s duty, or as it might be termed `allegiance’ is to the Constitution, as in existence from time to time.

        It was stated… that the Constituent Assembly derives power to make laws for the Dominion from Section 6(1), but with great respect, it seems to me that the interpretation overlooks the fact that the Constituent Assembly was, as a body, not a creation of the British Parliament. It is, in my opinion, to be regarded as a body created by a supra-legal power to discharge the supra-legal function of preparing a Constitution for Pakistan. Its powers in this respect belonged to itself inherently, by virtue of its being a body representative of the will of the people in relation to their future mode of Government …. In marked contrast with the Constitutions of other Dominions, which have been enacted by the same British Parliament, the Indian Independence Act refrains from constituting any `Legislature of the Dominion’.

        I place the Constituent assembly above the Governor General, the Chief Executive of the State, for two reasons: firstly, the Constituent Assembly was a sovereign body, and secondly, because the statutes under and in accordance with which the Governor General was required to function were within the competence of the Constituent Assembly to amend.

All the three `Limbs of Administration: Organs of Government, viz., Legislature (Constituent Assembly), Executive, and Judiciary, have worked, since 1947, on the clear understanding that Constitutional laws did not require the assent of the Governor general … Since 1 March 1955, the Federal Court has decided that it is not bound by its previous decisions.

I consider that there can be no possible doubt that neither the British Sovereign nor the Governor General as such was a part of the Constituent Assembly.

On the most careful consideration of the matter …, I cannot find that there is anything in Section 6(3), Indian Independence Act, or in the status of Pakistan as a Dominion which creates the obligation that all laws made by the Constituent Assembly, of a Constitutional nature, require the assent of the Governor General, for their validity and operation. On this view, the appeal would appear not to be concluded, but as My Lord the Chief Justice and my brothers are of the contrary opinion, and as on the basis of that opinion, the appeal is indeed entitled to succeed, the result must be that the appeal be allowed, and the writ petition of Mr. Tamizuddin Khan being dismissed, the writs should be recalled. On the question of costs, I agree that in the circumstances of the case, each party should bear its own costs.

 

  1. MUHAMMAD SHARIF, J. :

I agree with my Lord the Chief Justice.

  1. S.A. RAHMAN, J. :

… I find myself in respectful agreement with the reasoning of my Lord and the conclusions reached by him on that point.

 

 

Appendix III

FEDERAL COURT OF PAKISTAN

REPORT ON

THE SPECIAL REFERENCE

MADE BY

HIS EXCELLENCY THE GOVERNOR-GENERAL

OF PAKISTAN

 

 

In the Federal Court of Pakistan

(Advisory Jurisdiction)

 

 

SPECIAL REFERENCE NO. 1 OF 1955

 

(Reference by His Excellency the Governor-General under section 213 of the Government of India Act, 1935)

 

Present :

The Hon’ble Mr. Justice Muhammad Munir, C.J.,

The Hon’ble Mr. Justice A.S.M. Akram,

The Hon’ble Mr. Justice Muhammad Sharif,

The Hon’ble Mr. Justice S.A. Rahman.

 

 

For the Governor-General of Pakistan

Mr. Faiyaz Ali, Advocate-General of Pakistan, Mr. Kenneth Diplock, Q.C. (Mr. R.L. McEwen, Bar-at-Law, with them) instructed by Mr. Iftikharuddin Ahmad, Attorney.

Under O. XLV, rule
1, Federal Court Rules, 1950

1. Mr. A.R. Changez, Advocate-General of the Punjab, instructed by Mr. Ijaz Ali, Attorney.
2. Mr. Sikandar Beg S. Mirza, Advocate-General of Sind.
3. Mr. Muhammad Ali, Advocate-General of North-West Frontier Province, instructed by Mr. Ifikharuddin Ahmad, Attorney.

For Maulvi Tamizuddin Khan

Mr. D.N. Pritt, Q.C., Mr. I.I. Chundrigar, Senior Advocate, Federal Court, (Messrs, Sharifuddin Pirzada, Advocate, Federal Court, Manzar-e-Alam, Advocate, Federal Court, and M. Nasim, Advocate, Chief Court of Sind under O. IV, rule 7, Federal Court Rules, 1950, with them), instructed by Mr. M. Siddiq, Attorney.

 

For the United Front Parliamentary Party of East Bengal Legislative Assembly represented by its leader Mr. A.K. Fazlul Haq Congress Party and Scheduled Castes Federation.

Mr. Hamidul Haq Choudhury, Senior Advocate Federal Court, (Mr. Abu Muhammad Abdullah, Advocate Federal Court, with and him,) instructed by Mr. M. Siddiq, Attorney.

Dates of hearing

April 25, 27, 28, 29 and May 2, 3, 4, 5, 6, 9 and 10, 1955

 

 

 

OPINION OF THE COURT

Question No. 1¾

What are the powers and responsibilities of the Governor¾General in respect of the Government of the country before the new Constituent Convention passes the necessary legislation?

Answer¾

That this question is too general and need not be answered.

Question No. 2¾

The Federal Court having held in Usif Patel’s case that the laws listed in the Schedule to the Emergency Powers Ordinance could not be validated under section 42 of the Government of India Act, 1935, nor retrospective effect given to them, and no legislature competent to validate such laws being in existence, is there any provision in the Constitution or any rule of law applicable to the situation by which the Governor-General can by order or otherwise declare that all orders made, decisions taken, and other acts done under those laws shall be valid and enforceable and those laws which cannot with-out danger to the State be removed from the existing legal system shall be treated as part of the law of the land until the question of their validation is determined by the new constituent Convention?

 

Answer¾

That in the situation presented by the Reference the Governor-General has during the interim period the power under the common law of civil or state necessity of retrospectively validating the laws listed in the Schedule to the Emergency Powers Ordinance, 1955, and all those laws, until the question of their validation is decided upon by the Constituent Assembly are during the aforesaid period valid and enforceable in the same way as if they had been valid from the date on which they purported to come into force.

Question No. 3¾

Whether the Constituent Assembly was rightly dissolved by the Governor-General

Answer¾

That on the facts stated in the Reference, namely, (1) that the Constituent Assembly, though it functioned for more than 7 years, was unable to carry out the duty to frame a constitution for Pakistan to replace the transitional constitution provided by the Indian Independence Act, 1947; (2) that in view of the repeated representations from and resolutions passed by representative bodies throughout the country the Constituent Assembly, in the opinion of the Governor-General, became in course of time wholly unrepresentative of the people of Pakistan and ceased to be responsible to them; (3) that for all practical purposes the Constituent Assembly assumed the form of a perpetual Legislature; and (4) that throughout the period of its existence the Constituent Assembly asserted that the provisions made by it for the constitution of the Dominion under subsection (1) of section 8 of the Indian Independence Act, were valid laws without the consent of the Governor-General, the Governor-General had under section 5 of the Indian Independence Act, legal authority to dissolve the Constituent Assembly.

Question No.4¾

Whether the Constituent Convention proposed to be set up by the Governor-General, is competent to exercise the powers conferred by subsection (1) of section 8 of the Indian Independence Act, 1947, on the Constituent Assembly?

Answer¾

That subject to this:

(1) that the correct name of the Constituent Convention is Constituent Assembly;

(2) that the Governor-General’s right to dissolve the Assembly can only be derived from the Indian Independence Act;

(3) that the arrangements for representation of States and Tribal Areas can, under the proviso to subsection (3) of section 19 of the Indian Independence Act, be made only by the Constituent Assembly and not by the Governor-General; and

(4) that the Governor-General’s duty being to bring into existence a representative legislative institution he can only nominate the electorate and not members to the Constituent Assembly. The new Assembly, Constituted under the Constituent Convention Order, 1955, as amended to date, would be competent to exercise all the powers conferred by the Indian Independence Act, 1947, on the Constituent Assembly including those under section 8 of that Act.

Mr. Pritt, as amicus curiae will get from Government a sum of Rs. 10,000 as costs for representing Mr. Tamizuddin Khan’s case.

 

 

LAHORE
May 16, 1955

 

M. MUNIR C.J.

A.S.M. AKRAM J.

A.R. CORNELIUS J.

MOHD. SHARIF J.

S.A. RAHMAN J.

 

 

Appendix IV

Letters

 

Letter No. 1

 

2 Clifton Road, Karachi

June 21, 1951

 

My dear Prime Minister,

As suggested by you, I wrote to H.E. Sarder Abdur Rab Khan Nishter about holding meeting of the Basic Principles Sub-Committee at Karachi. I have since received his reply. He says “If you approve, you may direct the Secretary of the Constituent Assembly to inform all the members that the meeting will be held at Karachi and not at Nathiagali on the appointed date and hour. I have asked the Secretary to inform the members accordingly and I have also written0 to His Excellency about it. I have also told him in my letter to him that you will most likely avail yourself of this opportunity to hold necessary consultations on the long deferred question of the kind of electorate we should have. I hope you will be able to make time to hold such consultations on the occasion.

I shall be leaving for East Bengal On the 25th instant and shall be due back to Karachi on the 17th July next. If you hold the consultations on any date after the 17th, I shall be in a position to attend in case you consider my presence necessary.

 

 

Yours sincerely,

Sd/ Tamizuddin Khan

 

The Hon’ble Mr. Liaquat Ali Khan,

Prime Minister’s House,

Karachi

 

Letter No. 2

3, Barh Island,

Karachi

June 6, 1952

My dear Prime Minister,

I am writing to you about an important matter in connection with the drafting of the Constitution.

While considering the question of allocation of revenues between the Centre and the Federating Units, the Basic Principles Committee decided quite a long time ago that Mr. Zahid Hussain should be requested to go into the matter and submit recommendations. There was considerable delay in settling certain questions raised by Mr. Zahid Hussain and before he could undertake the work, Sir Jeremy Raisman was appointed to examine the question. The latter’s report, I think, has been accepted by the Governments concerned as an award. It is now for consideration whether in view of this award any further examination of the question is necessary. Probably such examination may not be necessary unless there is a re-distribution of subjects between the Centre and the Units. All the same, it seems desirable that the question should be closely considered by the Finance Ministry so that their views may be available when the matter comes up before the next session of the Basic Principles Committee to be held in August next.

In this connection I am sending herewith a copy of the rough draft that has been prepared by the Chief Draftsman with a view to its incorporation in the Constitution. The draft has been prepared keeping in view the Raisman Award as well as the relevant provisions of the Indian Constitution and the Government of India Act. I hope you will kindly have the entire question and the provisions of the draft examined by the Finance Ministry and let me know the result of such examination in due course.

 

Yours sincerely

Sd/ Tamizuddin Khan

 

 

 

Hon’ble Al-haj Khawaja Nazimuddin,

Prime Minister of Pakistan,

Karachi

 

Letter No. 3

3, Bath Island

Karachi

September 18, 1952

My dear Prime Minister,

Kindly refer to the discussions at the informal meeting held yesterday afternoon at your residence. As desired by you on that occasion I am inviting your attention to the fact that early steps are necessary to be taken with regard to the following matters:

(1) Securing the services of Sir Jeremy Raisman to recommend suitable financial allocation between the Centre and the Units under the new Constitution.

(2) A special committee under your chairmanship was set up by the Basic Principles Committee at its last session to report on all matters relating to Baluchistan, the States and the Tribal Areas in so far as the framing of the Constitution is concerned.

Very early decision on these matters is necessary. It was suggested at yesterday’s meeting that a preliminary meeting of the Special Committee should be convene as early as possible for clarification of ideas as to work ahead I would suggest that you may kindly send the Secretary of the Constituent Assembly and ask him call a meeting of the Committee on a suitable date. Mr. Hassan Mohd. Khan is at present in charge of the current duties of the Secretary who has gone to America.

 

Yours sincerely,

 

Sd/ Tamizuddin Khan

The Hon’ble Al-haj Khawaja Nazimuddin.

 

 

Letter No. 4

3, bath Island,

Karachi,

November 22, 1952.

My dear Prime Minister,

You are fully aware of the attempts that are being made to find a truely qualified person for appointment as Chief Draftsman in place of Sir Robert Drayton who is soon relinquishing his office. As you are now going to London and will be there for a few weeks I would request you to kindly do all you can to arrange for the appointment of a suitable person from the U.K.

I hope that in spite of your multifarious engagements in London it will be possible for you to do something in this respect.

Copies of the correspondence that has hitherto taken place in this regard with our High Commissioner in the U.K. will be found in the file that is being sent to you along with this letter.

With kindest regards,

 

Yours sincerely,

 

Sd/Tamizuddin Khan

 

The Hon’ble Al-haj Khawaja Nazimuddin

Prime Minister of Pakistan, Karachi.

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