MAULVI TAMIZUDDIN KHAN CASE AND ITS CONSEQUENCES

Maulvi Tamizuddin Khan Case

a.????Background:

The Indian Independence Act, of 1947 established two independent dominions from the erstwhile Indian sub-continent: India and Pakistan. Two separate Constituent Assemblies were set up in these dominions to frame their future constitutions. Indian Constituent Assembly promulgated the India Constitution on 26th January 1950. However, Pakistan Constituent Assembly could not conclude any final draft. After seven long years of internal bickering and a failed attempt at reconciliation, the Constituent Assembly was finally ready to promulgate the constitution of Pakistan. Contrary to expectation, The Governor-General, Ghulam Muhammad, imposed an emergency in the country and dissolved the Constituent Assembly. The Governor-General cited various reasons for doing so but did not mention any law or authority whereby he was dissolving the Constituent Assembly. He appointed a fresh Council of Ministers and restrained the President of the Constituent Assembly, Maulvi Tamizuddin, from exercising his official duties. Aggrieved, Maulvi Tamizuddin Khan invoked the original jurisdiction of the Chief Court of Sindh, seeking writs of quo warranto and mandamus against the Federation of Pakistan and newly appointed ministers.

b.???Judgment by Chief Court of Sindh[1] :

Following the dissolution of the Constituent Assembly by Governor-General Ghulam Muhammad on 24th October 1954, Maulvi Tamizuddin, the deposed President of the Constituent Assembly, applied for a Writ of Mandamus and Quo warranto. The Writ of Mandamus was requested from the court to restrain Governor-General from interfering in the mandate of the petitioner as the President of the Constituent Assembly, which impliedly meant the restoration of the Constituent Assembly. On the other hand, the appointment of new ministers in the Cabinet by the Governor-General was challenged through the writ of quo warranto. At the outset, the federation of Pakistan raised preliminary objections regarding the maintainability and jurisdiction of the court to hear the case. The respondents relied on Section 6(3) of the Indian Independence Act, 1947, which gave powers to the Governor-General to give assent in His Majesty’s name. Following this argument, the respondents stated that the newly inserted section 223-A in the Government of India Act, 1935, which empowered High Courts to issue writs of Mandamus, certiorari, habeas corpus, and quo warranto, had not received the assent of the Governor-General, hence the petitions are not maintainable. Moreover, the respondents argued that the Governor-General had powers to dissolve Constituent Assembly under sections 6(3) and 19(3)(b) of the Indian Independence Act, 1947. They further relied on the prerogative of the Crown to dissolve the Legislature. According to them, by section 5 of the Indian Independence Act, 1947, the Crown prerogatives have been retained by the Governor Governor-General, under Rule 62 of the Business of Constituent Assembly, it could only be dissolved by a resolution passed by its 2/3rd members. The respondents challenged this Rule as illegal because it was not a law in the strict sense. In addition to this, the federation of Pakistan challenged the territorial jurisdiction of the Sindh Chief Court to issue writs against the federal government and ministers. The immunity of the Governor-General was also invoked to render the writs non-maintainable.

The Chief Court of Sindh unanimously rejected the objections of the respondents and issued relevant writs against the federation of Pakistan and newly appointed ministers. In their judgment, the honorable judges relied on the provisions of The Indian Independence Act, 1947, its purpose and scope, The Government of India Act, 1935, and subsequent acts by the Governor-General and Constituent Assembly.

i.?Was the assent of the Governor-General necessary for any bill passed by the Constituent Assembly?

The Chief Court of Sindh divided its answer into two portions. Section 8(1) of the Indian Independence Act, of 1947, bestowed powers on the Constituent Assembly to act as a constitution-making body and as a federal legislature. The court held that the assent of the Governor-General is required when the Constituent Assembly is acting as a federal legislature; on the other hand, it is not required when it is acting as a constitution-making body. The court relied on sections 6(1) and 6(2) of the Indian Independence Act, 1947, whereby the British Parliament and his Majesty relinquished their assent to any laws passed by the legislatures of the dominions. The court maintained that the basic purpose of the transfer of powers was to abdicate the suzerainty of His Majesty on Pakistan. If His Majesty had no authority to give or refuse assent to any bill, and laws could be made in derogation of British Parliament, then how could His representative, the Governor-General, be endowed with such powers? Moreover, the Court argued that the Constituent Assembly had the power to repeal the Indian Independence Act, 1947, and The Government of India Act, 1935. The arguments of the respondents regarding section 6 (3) of the India Independence Act, 1947, which gives full power to the Governor-General to assent in His Majesty’s name, fall into pieces if the Constituent Assembly repeals Section 6 (3) of the Indian Independence Act, 1947. As per the court, “it is impossible to think that an Act of the Constituent Assembly repealing or removing the provision regarding assent of the Governor-General would require the assent of the Governor-General”. The court held that the legislature in India had repealed both The Government of India Act, 1935 and Indian Independence Act, 1947, and promulgated their Constitution which did not receive the assent of the Governor-General. In this regard, the words of the court are reproduced here verbatim:

“To Clothe the Governor-General with powers to assent or dissent to the bill of the Constituent Assembly was to make him truly a Viceroy, able to foil at will, any constitutional measure framed by the constitution-making assembly, and to that extent, the measure of independence would have fallen short”.

The court further relied on the nature of the dominion. Section 1(1) of the Indian Independence Act, of 1947 established two Independent Dominions of India and Pakistan. The Court emphasized the word independent here. It held that the status of Pakistan and India is different from other British dominions, like Australia. For instance, those dominions were governed by the Constitutions promulgated by the British Parliament. Contrary to this, after the Independence, the court held that the Sovereign powers of the Crown did not pass to the Governor-General; they were transferred to the Constituent Assembly. Reference was made to the Halsbury Laws of England, where the status of Pakistan was mentioned on page 488 in these words:

“Pakistan. The Federal Legislature, in its capacity as the Constituent Assembly, is invested with full constituent powers in Pakistan”.[2]

A plain reading of the abovementioned declaration highlights that the British Parliament intended to transfer the constitution-making powers on to Constituent Assembly.

The inference was also drawn from the power of the Governor-General to dissolve the Federal legislature. As per section 19 (2) (c) of the Government of India Act, 1935, Governor-General had the power to dissolve the Federal legislature. This power was repealed for the reason that the federal legislature cannot be dissolved as it is also working as a Constituent Assembly. This implies that the Constituent Assembly cannot be dissolved by the Governor-General.

The respondents relied on Section 19 (3) (b) of the Indian Independence Act, 1947. The concerned section was present in the interpretation clause of the Act. According to it, the Act established the Constituent Assembly in Pakistan under the authority of the Governor-General and reading section with section 32 of The Interpretation Act, 1889, the respondents maintained that where the Governor-General was endowed with a duty, and in absence of any contrary intention, the duty is there and he can dissolve the assembly as he established it. The court rejected this argument on the basis that the contrary intention appeared as the Governor-General’s powers to dissolve the federal legislature were repealed.

ii.?Prerogative of Governor-General to dissolve Constituent Assembly:

The court, when inquiring about the prerogative powers of the Governor-General to dissolve the federal legislature, held that the only prerogative powers left with Governor-General were that of pardon and reprieve in His Majesty’s name. The contrary intention appears in the repealing of his powers to dissolve the federal legislature, which means that the express provision of the statute has limited or abolished the prerogative powers. As prerogative powers are what remains in the Crown, therefore, the power to dissolve the Constituent Assembly does not come under the prerogative of the Governor-General. In absence of any express provision regarding the dissolution of the Constituent Assembly, Governor-General had no power to dissolve it.

iii.?Final order of Sindh Chief Court:

Following this reasoning, the Chief Court of Sindh passed the writ of Mandamus against the Governor-General, refraining him from meddling in the office of Petitioner, Maulvi Tamizuddin Khan. Moreover, the writ of quo warranto was issued against those newly appointed ministers who were not part of the legislature before the dissolution. The court unanimously rejected the arguments of the respondents, the Federation of Pakistan in this case, and decided in favor of Maulvi Tamizuddin Khan.

c.????Political machinations by Chief Justice Munir:

It has been argued by Hamid Khan in his recent book, “A History of the Judiciary in Pakistan[3] ’, that Chief Justice Munir conspired with Governor-General Ghulam Muhammad in changing the demographics of the Federal Court before the appeal. The bench was comprised of five judges: Chief Justice Munir, Justice Shahabuddin, Justice Cornelius, Justice A.S.M. Akram, and Justice Sharif. He wanted to exclude Justice Shahabuddin from the bench because he knew that Justice Shahabuddin and Justice Cornelius might influence Justice Akram to join them. In this way, he would have been left in a minority with Justice Sharif. Therefore, hatching this back-door exclusionary policy with Ghulam Muhammad, Justice Shahabuddin was offered the governorship of East Bengal by Ghulam Muhammad, which he accepted after some hesitation. In his place, Justice S.A. Rahman, Chief Justice of the Lahore High Court at that time, was appointed in his place as an Ad hoc judge. Thus, began the dark chapter in the history of the constitutional and judicial history of our country. This decision continued to rock the foundations of our constitutional history.?

d.?The Federal Court Judgment[4] :

The Federal government appealed before the Federal Court against the judgment of the Sindh Chief Court. On 21st March 1955, the Federal court decided, by a majority of four to one, in favor of the Government, with Justice Cornelius dissenting. The linchpin of the Federal court’s ratio was based on a technicality that was raised by the Federation of Pakistan before the Sindh Chief Court: Article 223-A of the Government of India Act, 1935 had not received the assent of the Governor-General, therefore, High Court had no jurisdiction to issue the relevant writs in favor of the Maulvi Tamizuddin. Federal Court adopted this argument and declared that assent of the Governor-General is necessary, as the Constituent Assembly acted as a legislature of the Dominion. It rejected the conclusion reached by the Sindh Chief Court that assent is necessary when Constituent Assembly is functioning as a federal legislature, but it is not required when it is acting as a constitution-making body. By ignoring this, the Federal Court completely disregarded the purpose of the Indian Independence Act, 1947, which was to transfer powers, and adopted a narrow interpretation of sections 6(3) and 5 of the Indian Independence Act, 1947. The decision, based on a technicality, did not delve into the merits of the case, and the conclusions reached by the Sindh Chief Court were lost to the history. However, Justice Cornelius provided a powerful dissent and accepted almost all the conclusions of the Sindh Chief Court. The judgment was decided by 4:1. Following this judgment, a constitutional breakup ensued in the country, and Federal Court had to do intellectual gymnastics to prevent it.

e.?Consequences of Maulvi Tamizuddin Case:

The country went into a spiral of constitutional abyss. The Indian Independence Act, 1947, by its section 9, gave powers to the Governor-General to effectuate the provisions of the Indian Independence Act, 1947, and to make required adaptions to The Government of India Act, 1947. This power was limited till 31st March 1948 in form of a sunset clause. However, by The Indian Independence (Amendment) Act, of 1948, the Constituent Assembly extended this period to 31st March 1949. During this period, the Governor-General added section 92-A to The Government of India Act, 1935, which empowered the Governor-General to confer power on the Governor of a province to make laws in certain circumstances. Under this provision, by the authority of the Governor-General, the Governor of Sindh enacted a law called The Sindh Control of Goondas Act, 1952. Consequently, in the Usif Patel case[5] , a person who had been declared a goonda (ruffian), under the Sindh Control of Goondas Act, 1952, challenged section 92-A because the Act authorizing the Governor-General to make adaptions, The Indian Independence (Amendment) Act, 1948, had not received the assent of the Governor-General. Therefore, the subsequent legislation was void ab initio. Stuck in the morass of the Maulvi Tamizuddin case ratio, Chief Justice Munir declared that the attempt by the Governor-General to validate laws and make constitutional provisions through ordinances was void. The consequences of this judgment shoved the country into a further constitutional abyss. The Central Law Minister, Hussain Shaheed Suhrawardy, observed that the country is faced with a grave situation[6] . There was no federal legislature in existence to validate the laws which were deemed invalid after judgments in Maulvi Tamizuddin and Usif Patel cases. Forty-six laws were deemed to be invalid because of these two cases. The principal act, declaring that the assent of the Governor-General is necessary for matters of constitutional legislation, was now haunting the eight-year-old Pakistan.

f.?How was the constitutional crisis resolved?

After the judgment in Usif Patel Case, the Governor-General sent a reference[7] before the Federal Court to seek the opinion of the court on the issue of validating laws and the new constitution convention set up by the Governor-General[8] . Several questions were asked in this reference. The most pertinent to our proposition was the question relating to the mechanism for validating laws. The Governor-General contended that after the Usif Patel case, how could those laws be validated? The Federal Court replied that they could be validated under the common law of civil and state necessity. This doctrine was further developed in Ali Ahmed Hasnain Shah’s case.[9] In this case, The Privy Council (Abolition of Jurisdiction) Act, 1950, and the Constituent Assembly for Pakistan (Increase and Redistribution of Seats) Act, 1949 were challenged. The argument was raised that since the Constituent Assembly for Pakistan (Increase and Redistribution of Seats) Act, 1949, which added six members to it, had not received the assent of the Governor-General, therefore, the Privy Council (Abolition of Jurisdiction) Act, 1950 passed by it is illegal. Therefore, the Federal court has no jurisdiction to hear the appeal. The Federal Court relied on the Doctrine of State Necessity to validate the Privy Council (Abolition of Jurisdiction) Act, of 1950. Hence, the constitutional crisis came to an end.

Conclusion:

In a nutshell, the initial act of reversing the judgment of the Chief Court of Sindh in the Maulvi Tamizuddin case wreak havoc on the constitutional machinery of the country. The question of assent of the Governor-General opened floodgates of litigation in the country and forced the Federal court to conduct intellectual gymnastics. It is to be observed that had the Federal Court failed to resolve the issue of the Privy Council (Abolition of Jurisdiction) Act, 1950, the whole jurisprudence of the court and its existence would have come to naught. It could have been a perfect case for legal suicide. The result of relying on the doctrine of state necessity confirms that the initial actions were unwarranted and uncalled for.

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[1] Maulvi Tamizuddin Khan v. Federation of Pakistan, PLD 1955 Sindh 96.

[2] Halsbury’s Laws of England, Third Edition, Vol.15, p.488, para 1087

[3] Khan, Hamid, A History of Judiciary in Pakistan, (Karachi OUP, 2016),?25

[4] Federation of Pakistan v. Maulvi Tamizuddin Khan, PLD 1955 FC 240

[5] Usif Patel v. The Crown, PLD 1955 SC 387.

[6] Dawn, 15th April 1955

[7] Reference by His Excellency, The Governor-General, PLD 1955 FC 435

[8] Constituent Convention Order 1955 (Governor-General’s Order VIII of 1955), PLD 1955 Central Acts and Notifications 118.

[9] The Federation of Pakistan v. Ali Ahmed Hasnain Shah, PLD 1955 FC 522

Author: Hashim Khan, lawyer based in Islamabad