Brief Introduction

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.

Facts Of the Case

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.

Logically, in his struggle to restore the rule of law to the fledgling “democracy”, the redoubtable
Maulvi Tamizuddin Khan sought from the Sind Chief Court a writ of mandamus  and quo
warranto:
 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 [1947] 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  [1920] UKHL 1, [1920] 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.

Order
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.

Comment
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.