Despite its secular and democratic roots, Pakistan is a country where constitutional freedoms have been suppressed and coups, corruption and cronyism have prospered. Unsurprisingly, because it fell prey to dictatorship shortly after Independence, the country is often labelled a “failed state”. Perhaps somewhat ironically, over and above the grim reigns of despots like Ayub, Yahya and Zia, the demise of democracy in Pakistan is directly attributable to the judiciary. On the other hand, the decision in Maulvi Tamizuddin Khan (Petitioner) v Federation of Pakistan (Respondent No.1) & Others (Respondents) 1954 SHC 81 is an example of an early landmark judgment which set a different standard (analysed in detail below) for upholding the rule of law. To the people of Pakistan, who are damned by oppression, even six decades later, it symbolises what could have been a much brighter future.
Indeed, to this day, if anything, our indulgence in the Sind Chief Court’s rationale repays freedom and the rule of law which were shortchanged when this meticulous judgment was deplorably reversed by Muhammad Munir CJ in Federation of Pakistan v Maulvi Tamizuddin Khan PLD 1955 FC 240 where he sinfully held that the Governor-General’s assent was necessary to all laws passed by the Constituent Assembly.
As highlighted in an earlier post, a sizable chunk of the liability for the destruction of democracy in Pakistan can be apportioned to Munir CJ and his infamous formulation of the doctrine of necessity (which he precariously ascribed to Lord Mansfield) – i.e. “subject to the condition of absoluteness, extremeness and imminence, an act that would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the constitution, the State or the Society and to prevent it from dissolution” – in Reference by H.E. the Governor General PLD 1955 FC 435. The rest is history and in Pakistan this ugly statement has been reiterated to subjugate democracy and the rule of law so that dictatorship and evil could thrive.
On 16 May 1946, the British Prime Minister Mr Clement Atlee announced the Cabinet Mission Plan’s recommendations regarding the establishment of a Constituent Assembly (elected in July 1946) for undivided India and in those heady days the Muslim League boycotted the Constituent Assembly.
On 3 June 1947, His Majesty’s Government announced specific provisions in relation to establishment of a separate Constituent Assembly for Pakistan which was created under the directions of the Governor-General of India Lord Mountbatten. The Indian Independence Act 1947 (the 1947 Act) was passed and received His Majesty’s assent on 18 July 1947. Quaid-e-Azam (Mr Jinnah) was elected the first President of the Constituent Assembly on 11 August 1947.
The Constituent Assembly met from time to time in relation to producing for the newborn nation a Constitution which would ready before 25 December 1954 – Mr Jinnah’s birthday – so that the Prime Minister of Pakistan (respondent no. 2) could publicly announce it. Following Mr Jinnah’s untimely death, Maulvi Tamizuddin Khan was elected President of the Constituent Assembly on 14 December 1948, a role he held until 24 October 1954.
The petition – pursuant to section 223-A of the Constitution Act for writs in the nature of mandamus, quo warranto or any other appropriate writ – had been filed by the President of the Constituent Assembly of Pakistan, i.e. Maulvi Tamizuddin Khan, against the Federation of Pakistan, the Prime Minister of Pakistan and eight Members of the Central Council of Ministers because on 24 October 1954 the Governor-General (the venal Malik Ghulam Muhammad) of Pakistan proclaimed that:
The Governor-General having considered the Political crisis with which the country is faced, has with regret come to the conclusion that the constitutional machinery has broken down. He therefore has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function.
The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives to be elected afresh. Election will be held as early as possible.
Until such time as elections are held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view to give the country a vigorous and stable administration. The invitation has been accepted. The security and stability of the country are of paramount importance. All personal, sectional and provincial interests must be subordinated to the Supreme National Interest.
- 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; and
- to determine the validity of the appointment as ministers of respondents 2 to 10.
Claim and Counterclaim
Aggrieved by the dissolution, the Maulvi claimed that the alleged proclamation was illegal, ultra vires, unconstitutional, without jurisdiction, inoperative and void because: (i) the Governor-General lacked, within the meaning of the 1947 Act or under the Government India Act 1935 (the 1935 Act), the authority to issue the proclamation; (ii) the constitutional machinery had not broken down and the allegation did not empower the alleged proclamation; (iii) the 1947 Act enabled the Constituent Assembly to perform dual functions and it could act as a supreme, sovereign, unfettered Legislature and is also empowered to act as the Federal Legislature for the purposes of the 1935 Act; (iv) only the Assembly could dissolve itself; (v) even in its capacity as the Federal Legislature the Constituent Assembly could not be dissolved by the Governor-General because his power – prior to August 15, 1947 – to dissolve the Federal Legislature in section 19(2)(c) of the 1935 Act was omitted under the Pakistan (Provisional Constitution) Order 1947 with the effect that the Governor-General did not possess any power to dissolve the Federal Legislature; (vi) the Assembly could not be dissolved except by a Resolution assented to by at least two-thirds of the total number of Members of the Assembly; and (vii) the Governor-General had no control over the Constituent Assembly (Constitution) and its acts in that capacity do not require his assent because under the passage of a bill a copy thereof was to be signed by the President and it became law on being published in the Official Gazette of Pakistan under authority of the President.
The respondents counterclaimed that the dissolution of the Constituent Assembly was perfectly valid and raised seven grounds in support of their case: (i) the Crown has at common law a power to dissolve the Legislature save in far as that power had been superseded or regulated by legislation; (ii) the power to dissolve the Legislature of the Dominion (like Pakistan), like the Constituent Assembly, is a prerogative of the Crown (which absenting express words in an Act of the UK Parliament or a law passed under section 8 of the 1947 Act, the petitioner does not claim that any such Act or law has been passed) and the respondents accordingly claim that the power remains in full force and effect; (iii) all the powers of the Crown at common law vested in the Governor-General; (iv) by rule 15 of the Rules of Procedure of the Constituent Assembly of Pakistan, the Assembly purported to regulate the power of dissolution by providing that it should not be dissolved except by a resolution assented to by at least two-thirds of the total number of members of the Assembly but the respondents claimed that the rule was not a law within the meaning of sections 6 and 8 of the 1947 Act and accordingly that it has no legal force and effect; (v) by reason of section 19(3) of the 1947 Act and section 12 (1) and (2) of the Interpretation Act 1889, the Governor-General of Pakistan had power to revoke or vary the order of the Governor-General of India and to make further orders; (vi) the removal of the power to dissolve the Federal Legislature conferred on the Governor-General of India by section 19(2)(c) of the 1935 Act did not deprive the Governor-General of Pakistan of his power to dissolve the Constituent Assembly of Pakistan under section 5 of the 1947 Act; and (vii) the Court did not enjoy jurisdiction of decide whether the Governor-General had or had not good reasons for exercising the power on the 24 October 1954.
Judgment of Sind Chief Court
The Court was clear from the outset that sections 1 to 6 of the Indian Independence Act 1947 – which underpinned the setting up of the two independent Dominions of India and Pakistan and the division of British India between the two new Dominions – were abdicatory in nature. Notably, 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 it self abandons its 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 …
Ultimately, the question whether Governor-General had the power to dissolve the Assembly was res integra – i.e. an entirely new or untouched matter – and indeed the respondent Federation mounted its arguments on the strength of the prerogative and upon the statutory power which they argued was conferred by section 19(3)(b) of the 1947 Act (which, of course, was silent on summoning, proroguing or dissolving the Constituent Assembly).
Presided over by George Constantine CJ (as he then was), in an eighty-eight page judgment, the Sind Chief Court unanimously held in Tamizuddin Khan’s favour that the dissolution of the Assembly was incapable of legal justification. In a well-known passage, roundly rejecting the argument that the Governor-General was empowered to hijack the democratic process, the Court took the view that:
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 (undoubted 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.
The word “necessity” appears half a dozen times in the Sind Chief Court’s judgment but it does not appear in linkage with the word “doctrine” – the latter word appears only once and in relation to it the Court said in emphatic terms that:
There can be no doubt of the doctrine of the Privy Council, a Governor has no special privilege like that of the Crown; he must show in any Court that he has, authority by law to do an act, and what is more important for our purpose, he must show not merely that the Crown might do the act, but that he personally had authority to do the act.
The above approach accorded with the leading case of Musgrave v Pulido where the Governor of Jamaica’s plea – that he had acted as Governor in reasonable exercise of his discretion and his actions in connection to the seizure and detention of the “Florence” amounted to an act of state – was rejected by The Judicial Committee of the Privy Council (and the Court below) which instead held that the Governor of a colony in ordinary cases was not at parity with the Viceroy, nor can it be assumed that he possesses general sovereign power.
As for “necessity”, as unmistakably amplified in Muhammad Bakhsh J’s judgment which demonstrated great learning, and one with which George Constantine CJ wholeheartedly concurred, the Court reasoned that the Advocate-General’s argument – that under the 1935 Act, the legislature’s life was fixed for five years and therefore a power of dissolution had to be provided for, but now that the life was unlimited there was no necessity to retain that power – was fundamentally flawed and therefore Muhammad Bakhsh J was clear that:
Frankly, I am not able to understand this argument. If you need the statutory authority to dissolve a body whose life is only five years, your need of that power is a number of times greater when the life is unlimited.
For Muhammad Bakhsh J, section 19 of the 1935 Act, remained the key provision of law at the heart of the question of dissolution. In terms, as his Lordship put it, section 19 “thoroughly solves this question.” Explaining that “[t]he real position is so simple”, Muhammad Bakhsh J held that:
It will be seen from above that under the 1935 Act the life of the Federal Legislature was fixed by the statute to be five years unless sooner dissolved by Governor-General under section 19(2)(c). Under the adaptations its life was not limited to any period for the simple reason that the Constituent Assembly set up under section 8 of the [Indian] Independence Act  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.
So the Court opined that owing to the fact that the Constituent Assembly’s life was unlimited and because it could not be dissolved until it had performed the functions warranting its creation within the meaning of the 1947 Act, “it was impossible to retain the Governor-General’s power of dissolving the Federal Legislature under section 19(2)(c). Hence this power of dissolution was deliberately withdrawn with the set purpose.”
Unimpressed with the arguments canvassed on behalf of the Federation, the Court set out sections 61(2) and 62(2) of the 1935 Act to establish that although, on the one hand, the Provincial Governor’s prerogative power of dissolution was retained, but equally that, on the other hand, the Governor-General’s power of dissolution was deliberately withdrawn. The Court opined that if section 19(2)(c) of the 1935 Act was omitted because section 5 of the 1947 Act was there to fill the void, then there was no purpose in retaining section 19(2)(a) and (b).
On proper analysis, section 5 of the 1947 Act could potentially enable the summoning and proroguing the Federal Legislature and upon a somewhat probing scrutiny the point only proved that Advocate-General was “reading into section 5, Independence Act what does not really appear there” because “[t]he real position is so simple”. In other words, the Governor-General’s power of dissolution was withdrawn because the Independence Act did not permit him to dissolve the Constituent Assembly.
An imaginative argument advanced on the Federation’s behalf – that section 223-A of the Constitution Act on which the Maulvi relied in filing his petition did not bear the force of law because under section 6 (3) of the 1947 Act it required the Governor-General’s assent – was deprecated by the Court. (As George Constantine CJ put it, the objection regarding assent was novel, and if accepted by the Court it would inevitably upset a consistent course of practice and understanding.)
Observing that the Constituent Assembly had passed no less that forty-six acts none of which ever received the assent of the Governor-General, and that the question of assent of the Governor-General arises under the 1935 Act only, Muhammad Bakhsh J foreclosed the controversy as regards assent by presciently observing that:
Some of these Acts are most important, e.g. the Privy Council (Abolition of Jurisdiction) Act 1950 … the Indian Independence (Amendment) Act. Under the last Act the authority of the Governor-General under section 9, Independence Act, was extended for one year from 31st March 1948. Every one of these Acts is an important and even the Governor-General has himself been acting under those Acts and has been passing several; orders thereunder. Not only this, several people have been convicted and acquitted under these Acts. If every one of these Acts were held invalid for want of assent, the consequences are bound to be disastrous.
In respect of the Privy Council (Abolition of Jurisdiction) Act 1950, the Court observed that whilst the Governor-General had not assented to it, the Privy Council nevertheless remitted all Pakistani matters before it to the Federal Court of Pakistan which accepted the task of “deciding those cases as successors of the Privy Council.” Muhammad Bakhsh J therefore went on to hold that this activity was on all fours with it being declared a law under section 212 of the 1935 Act – i.e. “that the Acts passed by the Constituent Assembly did not require the assent of the Governor-General.” Of course, no case involving the prerogative can be properly decided without considering the important judgment in Attorney-General v de Keyser’s Royal Hotel Limited  UKHL 1,  AC 508 – where their Lordships’ House roundly rejected the government’s right to rely on the prerogative by holding that the prerogative fell into abeyance (i.e. set aside for the life of the statute) once a statute had been enacted and that the prerogative would be resurrected if the statute was repealed. In light of this key authority, Muhammad Bakhsh J held that the House’s approach clarified:
the legal and constitutional position very thoroughly that when the prerogative is merged in the statute, there can be no reserved prerogative … [because] … [w]hen the prerogative which has once been put on the statute is deliberately removed there from, it no longer exists.
In light of the foregoing, holding that the petition did indeed lie under section 223-A of the Constitution Act, and avoiding the “absurd” result (that no High Court in Pakistan could exercise the power of writs against the Federation of Pakistan or the Central Ministers) that so desperately needed to be averted, the Sind Chief Court (Constantine CJ, Vellani, Bakhsh & Bachal JJ) felt that it was appropriate to pass the following Order against the Governor-General:
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 and restoring the petitioner to his office as President of the Constituent Assembly by restraining respondents from interfering with his duties and obstructing him in the exercise of his functions. The opponents will bear the cost of the petitioner of this petition. A certificate under section 205, Government of India Act 1935 is hereby given.
In this robust first instance judgment, the Court did not resile from performing its constitutional role in giving justice to the petitioner. In fact, the Court noted that it was open to every “ordinary citizen” to question executive illegality. Unfortunately, in Maulvi Tamizuddin Khan PLD 1955 FC 240, in the Federal Court, Munir CJ reversed the Sind Chief Court’s judgment and opened the Pandora’s Box of illegality which has haunted Pakistan ever since.
According to Munir CJ (as he then was), section 223-A conferring power on the High Courts to issue writs had not received assent of the Governor-General and the Chief Court could not have issued writ holding the act of the Governor-General as invalid. Therefore, by means of the Emergency Powers Ordinance, 1955 (Ordinance No. IX of 1955) issued under section 42 of the Government of India Act 1935 the Governor-General sought to validate such Acts by indicating his assent with retrospective operation. The Federal Court in Usif Patel’s case PLD 1955 FC 387, however, declared that the Acts mentioned in the Schedule to the 1955 Ordinance could not be validated under section 42 of the 1935 Act, nor could retrospective effect be given to them. A noteworthy fact was that the Constituent Assembly had ceased to function, having been already dissolved by the Governor-General by a Proclamation on 24 October, 1954 and no legislature competent to validate these Acts was in existence.
Undeterred, the Governor-General made a Reference to the Federal Court under section 213 of the 1935 Act asking for the Court’s opinion on the question whether there was any provision in the Constitution or any rule of law applicable to the situation by which the Governor-General could, by order or otherwise, declare that all orders made, decisions taken, and other acts done under those laws, should be valid and enforceable and those laws, which could not without danger to the State be removed from the existing legal system, should be treated as part of the law of the land until the question of their validation was determined by the new Constituent Convention.
The answer returned by the Federal Court (by majority) to the Reference by H. E. The Governor General PLD 1955 FC 435 was 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 was decided upon by the Constituent Assembly, were, 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.
Thereafter, as we have seen in a recent post by our learned comrade Dr Reeza Hameed, in The State v Dosso PLD 1958 SC 533, Munir CJ set out to develop the manacles of the doctrine of necessity even further by validating and upholding martial law. But Munir’s judgments were met with resistance and even in Reference by H.E. the Governor General where he decided that the lacuna (i.e. the absence of a competent legislature) created by the requirement of assent in the instant case could only be filled by “necessity”, Cornelius J entered a powerful note of dissent (with which Muhammad Sharif J concurred) to expose a massive weakness in the majority judgment by emphasising that such illegal behaviour “can bring but cold comfort to any protagonist of the autocratic principle against the now universal rule that the will of the people is sovereign”.
Cornelius J wisely concluded that “[i]n the case of North America the territory was eventually lost through the maintenance of just such reactionary opinions, as those Senior Counsel for the Federation of Pakistan has been pleased to advance for acceptance by the Court”. Equally, his Lordship also drew an analogy with “the English case” and held that:
The fate of the King and the Judges who delivered the opinion favouring the absolute power of the King, stands for all time as a warning against absolutism, and as a landmark in the struggle for the freedom and eventual sovereignty of the people.
This post has been contributed by the Editor who is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law (Middle Temple) and is also an Advocate of the High Court of Sindh – email: firstname.lastname@example.org