As many as 46 laws in the country became invalid due to the judgment of Federal Court in Tamizuddin case, which held that a law which did not receive the assent of Governor General was not a valid law. To fill this legal vacuum the Governor General, in the exercise of powers conferred upon him by section 102 of the Government of India Act, 1935 promulgated Emergency Powers Ordinance (Ordinance IX) 1955 which empowered him, inter se, to:
- Make provisions for framing the constitution of Pakistan, and
- Validate the laws which were passed by the Constituent Assembly but had not been assented to by the Governor General.
Governor General’s emergency powers were question before the Federal Court in the case of Usif Patel v. the Crown. The case was heard by the Federal Court in the appellate jurisdiction. Appellants, who were declared to be gondass, were taken into custody under the Sindh Control of Goondas Act (Governor’s Act XXVIII of 1952) because of their failure to furnish security to the District Magistrate of Larkana. Sindh Chief Court held their detention valid and their application to be set at liberty were rejected. Against the decision of the Sindh Chief Court they filed appeals in the Federal Court.
The Federal Court held that a legislative provision of constitutional nature is solely within the powers of Constituent Assembly and the Governor General cannot exercise those powers.
Section 2 of Emergency Powers Ordinance of 1955 stated that:
“Whereas none of the laws passed by the Constituent Assembly of Pakistan under the provisions of subsection (l) of section 8 of the Indian Independence Act, (10 and 11 Geo. VI, c. 30) hereafter in this section referred to as the said Act, received the assent of the Governor‑General in accordance with subsection (3) of section 6 of the said Act, it is hereby declared and enacted that every law specified in column I of the Schedule to this Ordinance shall be deemed to have received the assent of the Governor‑General on the date specified in column 2 of that Schedule, being the date on which it was published in the official Gazette and shall be deemed to have had legal force and effect from that date.”
Section 10 of the Ordinance provided that Governor General shall have the power to make “by order such provisions as appear to him to be necessary or expedient for the purpose of making provision as to the constitution of Pakistan.”
One of the laws specified in column 1 of the schedule was India Independence (Amendment) Act, 1948. Section 9 of the India Independence Act, 1947 empowered the Governor General to make by order such provisions as appear to him to be necessary or expedient for bringing provisions of the Act into effective operation and for making adaptations of the Government of India Act, 1935. However, sub-section 5 of section 9 provided that the powers under section 9 shall not be exercised after March 31, 1948. This time was extended till March 31, 1949 by the India Independence (Amendment) Act, 1948. After that, in exercise the powers under section 9, Governor General, in July, 1948, added section 92-A to the Government of India Act, 1935. Section 92-A of the 1935 Act empowered the Governor General to issue proclamation, in certain circumstances, to authorize the Governors of the provinces to make law for their respective provinces. The power under section 92-A was exercised in respect of Sindh province. The Governor of Sindh so authorized enacted a law called Sindh Control of Goondas Act, 1952.
The appellants in Usif Patel case who were taken into custody under Sindh Sindh Control of Goondas Act, in their appeals before the Federal Court challenged India Independence (Amendment) Act, 1948 and thus, the validity of section 92-A of the Government of India Act, 1935 was also questioned, which, consequently rendered Sindh Control of Goondas Act also questionable.
It was held that section 92-A was added after the expiry of date originally fixed by section 9 (5) of the India Independence Act, 1947. The date on or before which the Governor-General might issue proclamation under section 9 of the Indian Independence Act was March 31, 1948, but this date was changed to March 31, 1949 by section 2 of the Indian Independence (Amendment) Act, 1948, passed by the Constituent Assembly. However, this Amendment Act was never presented to the Governor General for his assent. In the case of Mr. Tamizuddin Khan, this Court held that the Governor General’s assent to laws passed by the Constituent Assembly under subsection (1) of section 8 of the Indian Independence Act is indispensible, and that no Act relating to the Constitution of the Dominion can become law without the Governor General’s assent. The question in this case is whether the Indian Independence (Amendment) Act, 1948, which changed the date specified in section 9 (5) of the Indian Independence Act to March 31, 1949, was law when the Governor General added section 92-A to the Government of India Act, 1935 on July 19, 1948? On the authority of Mr. Tamizuddin Khan’s case the answer to this question must be in the negative, with the result that the addition of section 92‑A to the Government of India Act, 1935, being unauthorised, the Sindh Control of Goondas Act which was passed by the Governor of Sindh in exercise of the authority derived by him from a Proclamation of the Governor General under section 92-A, must be held to be invalid and the proceedings taken thereunder void and inoperative.
In these appeals, the next questions that must be resolved by the Court were: (1) Whether the Governor General could by an ordinance validate the India Independence (Amendment) Act, 1948, and (2) whether the Governor-General can give assent to constitutional legislation passed by the Constituent Assembly with retrospective effect.
Court held that the Amendment Act of 1948 was unquestionably a constitutional instrument. The learned Advocate General, on the other hand, contends that the Ordinance was enacted by the Governor General in exercise of the powers conferred on him by section 42 of the Government of India Act, 1935 as read with section 102 of that Act. The former section states that the Governor General’s capacity to make Ordinances is subject to the same restrictions as the Federal Legislature’s power to enact laws, and that any Ordinance made under that section may be controlled or superseded by an Act of federal legislature. Since the Governor General’s power to promulgate Ordinances is subject to the same restrictions as the power of the Federal Legislature to make laws; the true issue in the case is whether the Federal Legislature was competent to amend subsection (5) of section 9 of the Indian Independence Act, which the Constituent Assembly amended by the Amendment Act of 1948.
The Court held that the rule that a Legislature cannot validate an invalid law if it lacks the capacity to legislate on the subject to which the invalid law relates is self-evident; the principle underlying validation is that validation is itself legislation, and you cannot validate something you cannot legislate on. As a result, if the Federal Legislature was incompetent to amend the India Independence Act, 1947 or the Government of India Act, 1935 in the absence of a provision expressly authorising it to do so, the Governor General, who had no greater powers than the Federal Legislature, was equally incompetent to amend either of those Acts by an Ordinance. The learned Advocate General claims that the Constituent Assembly has been dissolved and that it can no longer exercise validating powers: We did not deem it necessary to assess whether the Constituent Assembly was properly dissolved in Mr. Tamizuddin Khan’s case, but presuming that it was, the effect of the dissolution can certainly not be the transfer of its powers to the Governor General. The Governor-General can give or withhold his approval to the laws passed by the Constituent Assembly, but he is not the Constituent Assembly, and he cannot claim powers he never had or claim to succeed to the powers of that Assembly if it is dissolved.
Court further held that the essence of a Federal Legislature is that it is not a sovereign legislature, competent to make laws on all matters; in particular it cannot, unless specifically empowered by the Constitution, legislate on matters which have been assigned by the Constitution to other bodies. Nor is it competent to remove the limitations imposed by the constitution on its legislative powers. It further held that the power of the Dominion’s Legislature to make provisions for the Dominion’s constitution could only be exercised by the Constituent Assembly under subsection (1) of section 8 of the Indian Independence Act, and that that power could not be exercised by that Assembly when it functioned as the Federal Legislature within the limits imposed on it by the Government of India Act, 1935. It is therefore not right to claim for the Federal Legislature the power of making provision as to the constitution of the Dominion _ a claim which is specifically negatived by subsection (1) of section 8 of the Indian Independence Act. If the constitutional position were otherwise, Governor General by an Ordinance might overturn the whole Indian Independence Act and the Government of India Act, and seize all legislative powers. It’s impossible to imagine a more incongruous position in a democratic constitution, especially since the Legislature, which may check the Governor General’s actions is supposed to have been dissolved.
It was held that the Governor General has no additional powers under the Constitution Acts than those granted to him by those Acts. One of these powers is the authority to proclaim Ordinances in times of emergency, although the parameters within which he can exercise that power, as well as the checks and balances subject to which he can do so, are clearly given out in section 42. The Governor-General’s power to legislate by Ordinance is always subject to the control of the Federal Legislature in principle, and he cannot remove these constraints simply by asserting that there is no Federal Legislature in law or fact. The Indian Independence Act and the Government of Indian Act, 1935 do not allow for such a position. Any legislative provision relating to a constitutional issue is completely within the jurisdiction of the Constituent Assembly, and the Governor-General is prohibited from using those powers by the Constitution Acts.
Concluding the case Federal Court held that for these reasons we are of the opinion that since the Amendment Act of 1948 was not presented to the Governor-General for his assent, it did not have the effect of extending the date from 31st March, 1948, to 31st March, 1949, and that since section 92-A was added to the Government of India Act, 1935, after the 31st March, 1948, it never became a valid provision of that Act. Thus the Governor General had no authority to act under section 92-A, and the Governor derived no power to legislate from a Proclamation under that section. Accordingly the Sindh Control of Goondas Act was ultra vires and no action under it could be taken against the appellants. That being so the detention of the appellants in jail is illegal.
Appeals accepted and the appellants were ordered to be set at liberty.
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