GOVERNOR GENERAL REFERENCE CASE

Background

 Assent of the Governor-General had not been obtained to certain constitutional Acts of the
Constituent Assembly. The Federal Court having held in Moulvi Tamizuddin Khan’s case (PLD
1955 FC 240) that assent of the Governor -General was necessary to all laws passed by the
Constituent Assembly, the Governor-General sought to validate such Acts by indicating
his assent, with retrospective operation, by means of an Ordinance (Emergency Powers
Ordinance, (IX of 1955) issued under section 42 of the Government of India Act, 1935. 

 The Federal  Court  in  Usif Patel’s case (PLD 1955 FC 387),  however declared that the Acts
mentioned in the schedule to that Ordinance could not be validated under section  42  of
the  Government  of  India Act, 1935, nor could retrospective effect be given to them.

 This Court has held in Usif Patel’s case (PLD 1955 FC 387) that the Governor-General has no
power to make such laws as are mentioned in sub-section (1) of section 8 of
the Indian Independence Act, 1947, but that decision was expressly limited to the Governor-
General’s powers under section 42 of the Government of India Act, 1935, no other source
for the power to pass such laws having been claimed for him in that case.

Muhammad Munir C.J delivering the leading judge

1. On the question whether the Constituent Assembly was rightly dissolved.

That on the facts stated in the Reference namely, 

a) 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
b) 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
c) That for all practical purposes the Constituent Assembly assumed the form of a perpetual
Legislature;
d) 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
2. On the question whether the Constitution Convention was competent to exercise the
powers of the Constitution Assembly under section 8 (1), Indian Independence Act 1947.
a) The correct name of the Constituent Convention is Constituent Assembly.
b) That the Governor-General’s right to dissolve the Assembly can only be derived from the
Indian Independence Act
c) 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.

For question number 1 that what are the powers of Governor General?

J Munir replied it by saying that it is too general to be answered.

LAW OF NECESSITY:

We clearly see that in this case government had to fall back on the doctrine of law of necessity
to take Pakistan out of the situation that was created in Mualvi Tameezuddin case and Usif
Patel case.

The law of natural necessity is a part of the statute law of our country, but the law of civil of
State necessity is as much a part of the unwritten law as the law' of military necessity,
instances of which are adjudged cases and authorities.

Justice Munir was of the opinion that  The principle clearly,  emerging  from the address of Lord
Mans field 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 Brocton that necessity makes lawful which
otherwise is not lawful.  Since the address expressly refers to the  right  of a private person to
act in necessity,  in the case of Head of the  State  justification  to  act  must  a  fortiori  be 
clearer  and more imperative.

J. Cornelius‘s opinions:-

He has also answered the basic question of this case as being a minority judge:-

1. Is there any law or any provision of the constitution which will validate the all the rules,
orders and decisions that have been taken by the governor general will have
retrospective effect by proclamation or can he extend from his powers during
emergency?

a) There is no provision in the Constitution and no rule of law applicable to the situation,
by which the Governor -General  can,  in  the  light  of this Court’s decision in the case of
Usif Patel,  by  proclamation or  otherwise,  validate the laws enumerated in the
Schedule  to the  Emergency  Powers  Ordinance, 1955, whether temporarily or
permanently.
b) The legislative powers of the Governor-General under the existing
Constitution are confined within the terms of section 42 Government ofIndiaAct, 1935.
Those powers are sufficient to enable the Governor-General to stay all proceedings in
Courts other than the Federal Court.

2. On the question whether the Constituent Assembly was rightly dissolved.

a) The majority of the Judges have also held that the Governor-General is invested with all
the Royal prerogatives, except where barred by express words or necessary intendment.
 The prerogative of dissolution of the Legislature is recognized to exist in all
representative institution in the British Commonwealth of Nations, and there are no
words in relevant instruments, taking away, expressly or by necessary intendment, this
prerogative power in relation to the “Legislature of the Dominion”. Consequently, the
Governor-General must be held to possess the prerogative to dissolve the Constituent
Assembly
b) So long as the Constituent Assembly does not provide for the setting up of a “Legislature
of the Dominion” its necessity for the operation of the existing Constitution remains.
But, once it has set up a Legislature of the Dominion, which will by expression have the
power of making provisions as to the Constitution of Pakistan, the Constituent Assembly
can, without detriment to the country, eliminate itself as soon as the new Legislature of
the Dominion is complete. Until that time, it seems to me that the Governor-General
cannot be said, in law, not to possess the power of dissolving the Constituent assembly.

3. On the question whether the Constitution Convention was competent to exercise the

powers of the Constitution Assembly under section 8 (1), Indian Independence Act 1947.

a) The powers conferred by the section 8 of the Indian independence act, 1947 on the
constituent assembly can only be exercised by the successor body, summoned by the
governor general of same name. When the governor general dissolve the constituent
assembly then the new coming assembly will also be named as constituent assembly
no the legislature of the dominion. And all these powers of governor general must be
conferred in accordance with the constitution. And the newly formed constituent
assembly must work in accordance with the basic principles settled in constitution.