Background

As many as 46 laws were rendered invalid due to the Federal Court’s judgment in Tamizuddin’s case. The Governor General, through the Emergency Powers Ordinance, 1955, attempted to validate these laws. However, in Usif Patel’s case, the court held that Governor General was not competent to validate the laws of constitutional nature with retrospective effect through the exercise of his emergency powers. The only body that could pass and validate laws on constitutional matters was the Constituent Assembly which, having been dissolved by the Governor General, ceased to exist. The judgment of the Federal Court in Usif Patel’s case, thus, further increased the legal uncertainty in the country. The legal and constitutional machinery of the country was at the verge of breakdown.  

Ghulam Muhammad, the second Governor General of Pakistan

The Governor General summoned a Constituent Convention to meet on May 10. The government also announced that it would ask for the opinion of the Federal Court that what interim steps can be taken to validate the laws which, as per the Court’s judgment in Usif Pate’s case, the Governor General could not restore. Governor General, on April 16, assumed the power to validate the 35 out of 46 laws subject to the report of the Federal Court and until such a time as the Constituent Convention decide their validity.

The Reference and Federal Court’s Opinion on it

The Governor General, under section 213 of the Government of India Act, 1935, made a reference to the Federal Court and asked for the opinion on certain questions. Court suggested the government to enlarge the terms of reference to include the basic question that whether the Constituent Assembly was rightly dissolved. Because if it is not determined whether the Constituent Assembly was rightly dissolved, the existence of, and exercise of powers by the new the new Constituent Convention established by the Governor General, might be challenged on the ground that Constituent Assembly was not rightly dissolved. Thus the enlarged reference included four questions on which the Federal Court gave opinion by 4:1 as follows:

  1. What are the powers and responsibilities of the Governor General in respect of the government of the country before the new Constituent Convention passes the necessary legislation?

Court held that this question is too general and need not be answered.

2. The Federal Court having held in Usif Patel’s case that the laws listed in the schedule of the Emergency Powers Ordinance could not be validated under section 42 of the Government of India Act, 1935, nor retrospective 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 such orders made, decisions taken, and other acts done under these laws shall be valid and enforceable and those laws which cannot without 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?

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.

Chief Justice Munir, on the principle of state necessity, observed that the principle clearly emerging from the address of Lord Mansfield is that subject to the condition of absoluteness, extremeness and  imminence, an act which 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 and affirms Chitty’s statement that necessity knows no law and the maxim cited by Bracton that necessity makes lawful which otherwise is not lawful. Since the address expressly refers to the right of private person to act in necessity, in the case of Head of the State’s justification to act fortiori must be clear and more imperative.

The emergency power, however, cannot extend to the matters which are not product of the necessity, as for instance, changes in the Constitution which are not directly referable to the emergency.

3. Whether the Constituent Assembly was rightly dissolved by the Governor General?

Court held if Constituent Assembly became a perpetual legislature although the India Independence Act did not intend to foist a perpetual legislature on this country, the purpose of the Act could only be served by dissolving it. The Court observed that highly complicated legal formalities necessary to establish the assembly hardly took three months. But the Constituent Assembly sat for more than seven years, it failed to make provision for future constitution of the State…..Chief Justice Munir, further stated, that if the task of the constitution making was proving too formidable and difficulties in its accomplishment appeared to be insurmountable, the Assembly could have dissolved itself or created the necessary mechanism to bring another assembly into existence. Its omission to take any such step or to provide a working constitution for the country was, in my opinion, a sufficient ground for the Governor General to hold that the Assembly failed to perform the function assigned to it by sub-section (1) of section 8 of India Independence Act. And if he came to that conclusion, the prerogative power of dissolution must be held to have been revived. Thus it held that under section 5 of the India Independence Act, Governor General had legal authority to dissolve the Constituent Assembly.

Other reasons stated by the Governor General in his Reference to come to the aforesaid conclusion which the Court mentioned in its opinion were that the Constituent Assembly, in the opinion of Governor General, became unrepresentative of the people of Pakistan and ceased to be responsible to them because several resolutions were passed against it by representative bodies throughout the country; and that throughout its existence the Constituent Assembly took the position that laws passed by it for the purpose of the constitution of the  dominion were valid law without the consent of the Governor General, the Governor General.

4. Whether the Constituent Convention proposed to be set by the Governor General will be competent to exercise the power conferred by section 8 of the India Independence Act, 1947, on the Constituent Assembly?

Court held that India Independence Act does not contain any provision relating to the Convention or composition of fresh Constituent Assembly. Therefore, the Governor General, as representative of the Crown, must exercise the same powers as were exercised by the Governor General in 1947, on behalf of the Crown; the only difference between the two cases being that whereas in 1947, the Governor General exercising the powers was responsible to His Majesty’s Government in the United Kingdom, the present Governor General having been appointed to represent the King for the purposes of Government of Dominion, is not responsible to any agency outside the dominion, though in law the source of the authority in both the cases is the Crown. The dissolved Constituent Assembly was set up by an executive order and not under any law and the new Constituent Assembly can be set up by a similar order.  

The Court further held that the new Constituent Assembly be set up subject to the condition that correct name of the assembly is the Constituent Assembly, not the Constituent Convention; that the arrangement for representation of states and tribal areas, under section 19(3) of India Independence Act, be made not by the Governor General but by the Constituent Assembly, that Governor General cannot nominate members of the Constituent Assembly, he can only nominate the electorate as it is his duty to bring into existence a representative legislative body.   

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