The Constitution of Pakistan, 1973 Developed by Zain Sheikh

FEDERATION OF PAKISTAN AND OTHERS

V/S

MOULVI TAMIZUDDIN KHAN

Per Muhammad Munir, C.J.

Constitution of Pakistan (1973), Arts. 58 & 199–
(Articles 19 & 223-A Government of India Act, 1935)

For the reasons given, I hold that the Constituent Assembly when it functions under subsection (1) of section 8 of the Indian Independence Act, 1947, acts as the Legislature of the Dominion within the meaning of section 6 of that Act, that under subsection (3) of the latter sections the assent of the Governor-General is necessary to all legislations by the Legislature of the Dominion, that since section 223-A of the Government of India Act under which the Chief Court of Sindh assumed jurisdiction to issue the writs did not receive such assent, it is not yet law, and that therefore, that Court had no jurisdiction to issue the writs. In view of this conclusion we cannot go into the other issues in the case whatever their general importance may be. [p. 315] A

Accordingly the position of the Constituent Assembly is that it is the Legislature of the Dominion when it makes laws for the constitution of the Dominion and the Federal Legislature when it functions under the limitations imposed upon it by the Government of India Act, 1935. [p. 278] B

The restrictions are, therefore, illustrative of the constitutional position that assent to the Dominion legislation by the Crown or its representative is indispensable and has in no instance ever been dispensed with by the Crown. [p. 285] C

The true position is that the provisions of those statutes relating to assent do not create in the Crown or in its representative a new right, but confirm an existing right and merely provide the manner in which that right is to be exercised. Thus if the right to withhold assent to Dominion legislation is inherent in the Crown and the statute that legislates on that right merely says that a bill after it has been passed by the popularly elected House or Houses shall be presented for assent to the Governor-General, who will give assent to that bill or withhold it therefrom, the statute does not create the right to withhold assent but merely describes the manner in which that right is to be exercised. Similarly the provisions in the Government of India Act which give to the Governor-General the right to withhold assent from legislation do not confer on, or create a new right in, the Crown; on the contrary, they implicitly recognise such right and regulate the manner in which it is to be exercised. It is for this reason that the fiction of making the Crown a constituent of the Legislature is resorted to because neither the King nor his representative, the Governor-General, is a member of the Legislature like other members. The King or the Governor-General is a part of the Legislature only in the sense that all bills passed by the Legislature are presented to him, so that he may exercise his right of giving or withholding assent. Thus subsection (3) of section 6 produces the same result by giving to the Governor-General full power to assent in His Majesty’s name to any law of the Legislature of the Dominion. It makes the Governor-General a constituent part of the legislature inasmuch as the right to give assent necessarily includes in it the right to withhold assent. Every bill must therefore be presented to him to provide him an occasion to exercise that right, and unless a bill is so presented a constituent part of the legislature does not function and the proposed legislation does not become law. There is, therefore, no distinction between those constitutions where the Crown is a constituent part of the legislature and the Legislature of the Dominion of Pakistan whose functions are being exercised by the Constituent Assembly and to whose legislation assent is enacted by subsection (3) of section 6 as a necessary condition.[p. 286] D

I have already pointed out that the words “the powers of the Legislature of the Dominion” in subsection (1) of section 8 refer back to the powers of the Legislature of the Dominion defined in section 6, which the Constituent Assembly was to exercise in its capacity of Legislature of the Dominion.[p. 288] E

If this relation of the two provisions was correctly stated by the Attorney-General, as I think it was it could only mean that the provision of section 6 were applicable to the powers given to the Constituent Assembly by sub-section (1) of section 8 and that the restriction as to the Governor-General’s assent to legislation by the Legislature of the Dominion, whatever may be the character of that legislation was applicable when the Constituent Assembly exercised the powers of the Legislature of the Dominion under section (1) of section 8. That subsection does not say that the constitution of the Dominion shall be made by the Constituent Assembly. It assumes that the powers of the Legislature of the Dominion include the power to make provision as to the constitution of the Dominion, declares that those powers shall be exercisable in the first instance by the Constituent Assembly and directs that references in the Act to the Legislature of the Dominion shall be taken as references to the Constituent Assembly. It was contended both by Mr. Chundrigar and Mr. Mahmud Ali that the Constituent Assembly, though it exercises the powers of the Legislature of the Dominion, is not itself the Legislature of the Dominion. This to my mind is tantamount to a refusal to read sub-section (1) of section 8, the only purport of which can be that the Constituent Assembly shall be the first Legislature of the Dominion, competent to exercise all the powers given to that Legislature by section 6 including the power to make laws as to the constitution of the Dominion. Learned counsel for the appellants therefore rightly contended that the plain words of subsection (1) of section 8 that “reference in this Act to the Legislature of the Dominion shall be construed accordingly” have the effect of substituting the Constituent Assembly for the words “the Legislature of each of the new Dominions” in subsections (1) and (3) of section 6. That being the position, there can be no escape from the conclusion that the Governor-General’s assent to the laws made by the Constituent Assembly is as necessary as his assent to any future Legislature of the Dominion brought into existence by the Constituent Assembly to replace itself. [p. 288 & 2890]F

The necessity of the Governor-General’s assent to legislation is, as I have already said, based on aswell-understood principle which is known to every constitutional lawyer conversant with constitutional practice in the United Kingdom and the Dominions. Legislation is the exercise of a high prerogative power and even where it is delegated by statute or charter to a Legislature, in theory it is always subject to assent whether that assent be given by the King or by a person nominated by the King. In the British system there is not a single instance to the contrary. That necessity was enjoined in the case of Pakistan so long as it continued to be a Dominion, though it was open to that Dominion, if the Governor-General gave assent to a bill of secession to repudiate its Dominion status. The force of the words ‘full power to assent’ would be realised if a situation arose where a bill of secession came up before the Governor-General for assent. So far as His Majesty was concerned he had given full powers to his Governor-General to assent to any legislation of the Dominion; but the Governor-General, though he was a representation of the King, was also be representative of the Dominion in the sense that he was a person in whom the majority party of the Assembly had confidence. He would, therefore, have no hesitation and would also have the requisite authority to give assent. If, however, he withheld assent, his immediate recall by His Majesty would have been successfully insisted upon by the Assembly and the assent could them have been obtained from his successor. [p. 289 & 290] G

The word ‘law’ in the subsection has been used in a general sense, namely, any proposed legislation which has not as yet received the assent of the Governor-General[p. 290] H

The marginal note to section 8 “temporary provision as to the government of each of the new Dominions” shows that the legislation of the Constituent Assembly under subsection (1) of section 8 is a part of the government of the Dominion and the whole scheme of the Government of India Act proceeds on the assumption that the Governor-General represents the Crown when he assents in Her Majesty’s name to the laws of the Federal Legislature. Therefore it seems to me to be an impossible proposition to assert the making of laws is not a part of the government of the Dominion, and that being so no reason whatsoever has been suggested why the making of constitutional laws should not be a part of the government of the Dominion. If the Governor-General represents the Crown for the purposes of the government of the Dominion when he gives assent to the laws passed by the Federal Legislature, it must a fortiori follow that he represents the Crown for the same purpose when he assents to constitutional laws, because in a State like ours it is impossible to conceive of a government without there being a constitution. [p. 294] I

A mere Rule o Procedure cannot amend the Constitution Act any more than a Resolution by the Assembly that a person named shall be stoned to death for an act that is not an offence under the substantive law of crimes and without his being tried in accordance with the law relating to criminal procedure.[p. 296] J

Therefore to apply the principle of contemporaneous and practical exposition to the present case, we shall first have to say that there is a doubt in our mind as to the true meaning of sections 6 and 8 as a whole, and particularly as to the meaning of subsection (3) of section 6 and subsection (1) of section 8. [p. 298] K

In my opinion, it is a mistake to suppose that sovereignty in its larger sense was conferred upon the Constituent Assembly, or that it could function outside the limits of the Indian Independence Act. The only power given to that Assembly was the power to make laws, constitutional or federal. In the former case, it exercised the power to make provision as to the constitution of the Dominion which had been included in the generality of the powers conferred by section 6 on the Legislature of the Dominion, and in the latter it acted as the Federal Legislature with all the limitations to which that Legislature was subject. Apart from these powers, it had no other power and it lived in a fool’s paradise if it was ever seized with the notion that it was the sovereign body in the State. It had, of course, Legislative sovereignty as the Legislature of the Dominion but then the Governor-General was a constituent part of the Legislature. Every Act passed by it required the Governor-General’s assent, consistently with the position that prevails throughout the Dominions, the Colonies and the Possessions, settled or ceded or conquered, where the Crown still retains to itself or has delegated to its representative the high prerogative right of assenting to bills.

If this basic position was misunderstood or misconstrued, there is neither any estoppel nor is the argument ab inconvenienti applicable. On its interpretation of the Indian Independence Act, the Constituent Assembly attempted to function outside the Constitution, and it was the right not only of the Governor-General to object to such unconstitutional activity, but the right of every citizen in the State to demand that the Assembly must function within its constitutional limits. [p. 298 & 299] L & M

Any attempt therefore to construe the Governor-General’s power to withhold assent as a veto on legislation proceeds on a mis-apprehension and cannot be made a ground for the inference that power is an infringement of the legislative sovereignty of the Legislature of the Dominion and thus of the Constituent Assembly. [p. 304] N

I am quite clear in my mind that we are not concerned wit the consequences, however beneficial or disastrous they may be, if the undoubted legal position was that all legislation by the Legislature of the Dominion under subsection (3) of section 3 needed the assent of the Governor-General. If the result is disaster, it will merely be another instance of how thoughtlessly the Constituent Assembly proceeded with its business and by assuming for itself the position of an irremovable Legislature to what straits it has brought the country.[p. 299] O

The Governor-General of Pakistan is appointed by the King or Queen and represents him or her for the purposes of the Government of the Dominion (section 5 of the Indian Independence Act). The authority of the representative of the King extends to the exercise of the royal prerogative in so far as it is applicable to the internal affairs of the Member, State or Province, even without express delegation, subject to any contrary statutory or constitutional provisions. [p. 311] P

Mr. Chundrigar is, however, right in the contention that in Pakistan no particular form for assent is prescribed, and that it need not be in writing. [P. 299] q

Per Cornelius, J.

It should be fairly clear from the preceding discussion that the Indian Independence Act, 1947, possessed in several respects the same character as the Statute of Westminster, 1931, but with one major difference. It will, I think, be clear from the analysis I am about to attempt, that the extent of freedom accorded to the countries which, as Dominions, were to replace the Indian Empire, was in very material degree greater than that which the older Dominions had gained in 1931. That, in my view, is the circumstance which justifies the application of the special description “Independent Dominions” to the two new States which were brought into existence by means of this highly effective instrument.[p. 343] AA

It could hardly appear more clearly that the Governor-General owes nothing to the British Sovereign except his warrant of appointment, issued upon the recommendation of the Government of Pakistan. No duty of any kind is prescribed which he owes to Her Majesty, except that of being “faithful”, appearing in the oath which Her Majesty is pleased to accept. The appointment, by its terms affirms and emphasises that the Governor-General’s duty or as it might be termed “allegiance”, is to the Constitution, as in existence from time to time. [p. 345] BB

The Constituent Assembly too was a supra legal body, not acting in its constitution-making capacity within the Constitution. It was not to be presumed that, in this capacity, its proceedings and decisions were subject to the qualified negative of the Governor-General, who was a statutory authority, owing existence to the interim Constitution. [p. 364] JJ

Two reasons stand out at once. The Constituent Assembly being designed to be a sovereign body and to exercise sovereign power, including power to alter the Constitution subject to which the Governor-General was intended to act, it would clearly be inconsistent with that design and purpose if the qualified negative” of assent by the Governor-General were imposed upon its constitutional laws. Secondly it being within the complete power of the Constituent Assembly to determine the Constitution of the “Legislature of the Dominion”, or Union Legislature, and to determine the scope of its legislative competency as well the mode in which its laws should be enacted, the British Parliament could not affect to prescribe the requirement of assent, as an essential formality, in respect of the laws made by such a Legislature. This would be to usurp the functions of the Constituent Assembly. to impose such a requirement upon laws of a constitutional nature made by the Constituent Assembly would be a direct affront to the position and authority of that body. Hence the careful use of expressions in sections 8, Indian Independence Act, to indicate that the necessary powers of legislation should be exercisable by the Constituent Assembly. [p. 369] LL

I have already shown that section 5, Indian Independence Act, cannot operate to confer any right to grant assent beyond that conveyed by the relevant words in section 6(3). Therefore, to draw the right of assent from section 5 seems to me to be impossible. [p. 370] MM

In the context, “any law” must mean “any law requiring assent for it to become operative”, i.e., any Bill passed by the “Legislature of the Dominion”, which under any provision of law required to be presented to the Governor-General for his assent, and to receive assent before it could become operative. [p. 371]

As for the term “Legislature of the Dominion”, I have already indicated view that it cannot be, and was not intended to be, regarded as equivalent, at any time, to the Constituent Assembly. [p. 371] OO

I consider, however, that there can be no possible doubt that neither the British Sovereign nor the Governor-General, as such, was a part of the Constituent Assembly. [p. 372] PP

The conclusion of this discussion enables me to reach and record my final decision, which is that on the most careful consideration of the matter of which I am capable, I cannot find that there is anything in section 6(3), Indian Independence Act, or in the status of Pakistan as a Dominion which creates the obligation that all laws made by the Constituent Assembly, of a constitutional nature, require the assent of the Governor-General, for their validity and operation. [p. 372] QQ