Background

Constituent Assembly adopted the constitutional formula proposed by Basic Principles Committee under the premiership of   Muhammad Ali Bogra. A committee of experts was assigned the task to draft the constitution. Constituent Assembly in the same session repealed Public Representatives Offices (Disqualification) Act (PRODA), 1949 and divested the Governor General of his power to dismiss cabinet by amending section 9, 10, 10-A and 10-B of Government of India Act, 1935.

Governor General, in reaction, dissolved the Constituent Assembly on October 24, 1954 by issuing a proclamation of emergency. The relevant portion of which is as follows:

“The Governor General, having considered the political crises with which the country is faced, has with deep regret to 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 who are to be elected; fresh elections will held as early as possible. Until such times as elections are held, the administration of the country will be carried on by a reconstituted cabinet.”

The proclamation neither referred the provision of law under which it was issued nor it expressly stated that the Constituent Assembly is dissolved. It only stated that it lost the confidence of the people and can no longer function.

Governor General asked the Prime Minister Muhammad Ali Bogra to form new cabinet. The new cabinet included, amongst other, Major General Iskandar Mirza and General Muhammad Ayub Khan thus the direct participation of armed forces civilian affairs begun.    

Proclamation challenged in Sindh Chief Court

As the second President of the Constituent Assembly (after Jinnah), Maulvi Tamizuddin Khan was a man of great renown and honest convictions. Tamizuddin Khan filed a lawsuit in the Sindh Chief Court on November 8, 1954, arguing that Governor General Ghulam Mohammad’s proclamation was “unconstitutional, illegal, ultra vires, without jurisdiction, inoperative, and void.”

Allen McGrath, in his book “The Destruction of Pakistan’s Democracy” wrote that Tamizuddin Khan and his counsel had feared that the Governor General would use the police and any other means available to him to prevent them from bringing the petition in court. A junior attorney in the law chamber of S. S. Pirzada, serving as a decoy, began his trek towards the Court building on the morning of the filing. Simultaneously, another attorney exited the premises through the back door, carrying the actual petition and clothed in a fully covered burqa. The cops apprehended and arrested the decoy. The burqa-clad associate eventually made it to the courthouse and filed the petition with the Registrar.

He petitioned the Sindh Chief Court, under section 223-A of the Government of India Act 1935, as amended by the Government of India (amend­ment) Act 1954, to issue writs of mandamus to refrain the government from interfering with the exercise of his functions as President of the assembly and Quo Warranto against the ministers of the central government.

Tamizuddin Khan further argued in his writ that the Governor General’s proclamation that the constitution-making process had broken down was false, and that the Constituent Assembly was a sovereign body with no provision in the constitution allowing the Governor General to dissolve it.

The constitutional petitions were challenged by all respondents, who raised a variety of arguments, the most important of which being that the Chief Court of Sindh lacked jurisdiction over the writs prayed for. It argued that the Governor General had not given his consent to the Government of India (amendment) Act, 1954, which introduced section 223-A into the Government of India Act, 1935, and under which such writs might be issued. As a result, it was not a valid law.

Decision of Sindh Chief Court

While dismissing the Government’s argument, the Chief Court of Sindh held that the Constituent Assembly’s Acts did not require the Governor General’s assent when it was not functioning as the Federal Legislature; that section 223-A of the Government of India Act, 1935, was a valid law; and that the Constituent Assembly’s dissolution was ultra virus and void.

The Sindh Chief Court ruled that the Constituent Assembly had sovereign right to change and repeal existing laws and enact a new constitution. If His Majesty’s own intervention was not required to grant the Constituent Assembly’s measures legality, the Court continued, how could His Majesty’s representative’s intervention be required?

Court further observed that words in section 6(3) of the Independence Act to the effect that The Governor General is authorized to ratify any law of the legislature of the Dominion..” merely meant, as had previously been assumed, that if such assent was necessary, like in lawmaking in the capacity of Federal legislature. The Governor General’s assent was not required when it functions as Constituent Assembly because; the Constituent Assembly was sovereign body with no control from outside.

Court held that the powers of the Governor General were restricted to the ministry and government officials of the Dominion and did not extend to participation in the making of the Constitution, nor to dissolution of the Assembly.

Justice Muhammad Baksh, one of the judges on the bench, observed that while deciding two previous cases in which statutes involved had not received the Governor General’s assent the Federal Court knew very well that no assent of the governor general had been obtained to the Act of the Constituent Assembly, and, therefore, it must be taken for granted that the Federal Court did not think that assent be necessary.

Court further held that India Independence Act, 1947 provides no provision for the dissolution of the Constituent Assembly, therefore, Governor General has no power to dissolve it. Constituent Assembly is a sovereign body created for a special purpose and it is to function till that special purpose is achieved.

Since 1948, many constitutional Bills passed by the Constituent Assembly have been authenticated without the Governor General’s assent and neither the first, second, or third governor-generals, including Ghulam Muhammad himself, have raised the issue of the Acts of the Constituent Assembly being invalid for lack of assent. The Sindh Chief Court cited a Governor General’s directive issued only four days before the Constituent Assembly was dissolved under an Act passed without his approval. Even Pakistan’s superior courts had accepted the premise that the Constituent Assembly’s enactment did not require assent in a number of situations, it was stated before the Court.

On February 4, 1955, the Sindh Court upheld Tamizuddin’s claim and issued the writ of quo warranto to the members of the cabinet prohibiting them from exercise ministerial powers and the writ of mandamus which restored to the office of President of the Constituent Assembly and also prohibited the respondents from interfering in the exercise of his duties.

The Judgment of the Federal Court

The federal government filed appeal in the Federal Court against the judgment of Sindh Chief Court.  The Federal Court, after hearing the arguments, gave judgment on March 21, 1955 and by a majority of 4-1 it set aside the judgment of Sindh Chief Court. It did not address the core question that whether the assembly was dissolved rightfully? Instead it reversed the judgment of the Sindh Chief Court on a very lame technical ground i.e. that section 223-A of the Government of India Act, 1935 on the basis of which Sindh Chief Court issued the writs was not a valid law because it had not received the assent of Governor General.

The Federal Court further held that Governor General has been made a constituent part of the legislature by India Independence Act, 1947.  The enactment of the assembly, whether functioning as federal legislature or as constituent assembly, required the assent of Governor General and the right to give assent also includes in it the right to withhold the assent. Court also held that assent by the Crown or his representative was indispensible for a legislative enactment in a dominion. If it did not receive assent of the Crown or his agent, the enactment is not a valid law.

Since section 223-A had not received the assent of Governor General; it was not a valid law and, resultantly, Sindh Chief Court had no power the issue the writs.

Dissenting Opinion of Justice Cornelius

In a dissenting opinion, Justice Cornelius stated that assent was not required for constitutional legislation to be valid, and that no such conclusion could be drawn simply because Pakistan was a Commonwealth member, especially given the circumstances and conditions under which Pakistan became a Dominion, which were unprecedented in Commonwealth history.

McGrath mentions in his book that the Governor General was willing to impose emergency in the country should the Federal Court uphold the decision of the Sindh Chief Court. He quoted a memo of the Ivor Jennings to the Governor General which reads that:

“There is a six-to-four chance of getting a favorable decision but it would not be very surprising if he decision was against the Government. The possibility has been foreseen and the necessary drafts have been prepared to carry out His Excellency’s policies whatever the decision might be. All the documents needed have been drafted and they will be ready for immediate issue once the decision of the Federal Court is known whether it is for or against the Federation.”

At the time of his retirement, Justice Munir defended his judgment in Tamizuddin Case before the Lahore High Court Bar Association in the following words:

“If the court had upheld the enforceable writs, I am quite sure that there would have been chaos in the country and a revolution would have been formally enacted possibly by bloodshed, a far more serious situation than that created by invalidation of a whole legal system which the new Assembly promised by the Governor General in his proclamation could have easily validated.

Situation like these are not for the courts to deal with unless the courts know for certain that their writs would be restored and enforced. But who could say that on 9 February, the coercive powers of the state was at the service of the Court and not with the Governor General?”

Hamid Khan in his book “Constitutional and Political History of Pakistan” writes that this was a lame justification. It was duty of the Justice Munir to apply the law regardless of the consequences. If concerns like these had prevented John Marshal from issuing the writ in Marbury vs. Madison, the United States’ constitutional history might have been very different. Court decisions that are bold in nature are what steer the law in the correct direction. A constitutional tragedy results from a timid and cowardly judiciary.

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