The Constitution of Pakistan, 1973 Developed by Zain Sheikh

REFERENCE BY HIS EXCELLLENCY GOVERNOR-GENERAL  

CONSTITUTION OFPAKISTAN(1973), ARTICLE 186:

(Government of India Act, 1935, S.213).

 Assent of the Governor-General had not been obtained  to certain consti- tutional 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 Ordina- nce,  (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. A noteworthy fact was  that the Constituent  Assembly  had ceased to function, having been already dissolved by the Governor-General by a Proclamation on 24th October 1954, and no Legi- slature  competent  to validate these Acts being in existence, the Governor- General made a Reference to the  Federal Court under section 213, Government of India Act,  1935  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 dec- lare 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 tre- ated  as  part of the law of the land until the question of their validation was determined by a new Constituent Convention? [p. 520]I.

Answer  returned  to the  Reference  was: (By majority of Court Mohammad Munir, C.J., A. S. M. Akram, and S.A. Rahman, JJ.,Cornelius, J. and Muhammad Sharif,  J. (Contra). —In the situation  presented  by  the  Reference the Governor-General has during the interim period of power under two 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. [pp.520-521]II.

Per Muhammad Munir, C.J. – (Dealing with the principle of civil or state necessity):  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 Bracton 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.

This being the position regarding individual acts, the next question is whether  the  Head of the State can, in the circumstances postulated, legis- late for the society.  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  menti- oned 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.  If it once  the  conceded that the power to act in an emergency of the nature just indicated  exists, the conclusion is inescapable that the act may be done by a  general order,  which, as admitted by Mr. Pritt, would amount to legisla- tion.  If the law  as stated by  Chitty that the Crown is the only branch of Legislature that a capable of performing  any act at a  time when Parliament is not in being is correct, legislative powers of the  Crown in an emergency are a necessary corollary from that statement,and the same result flows from Dicey’s  statement  that the free exercise of a discretionary or prerogative power at a critical  juncture  is essential  to the  executive Government of every civilized country, the indispensable condition being that the exercise of that power is always subject to the legislative authority  of Parliament, to be exercised ex post facto.  The emergency  legislative  power,  however, cannot extend to matters which  are not the product of the necessity, as for instance,  changes in the  constitution  which are not directly referable to the emergency. [p.485]A.

Per  Cornelius,  J. (CONTRA) – (a) There is no provision in the Consti- tution 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 expression  “laws which cannot without  danger to the State be removed  from  the existing legal system” is altogether vague, and therefore no answer can be offered to the second part of the question.

The legislative powers of the Governor-General under the existing Cons- titution  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, in which the legal provisions referred to are  called in  question,  pending such action as the proposed  Constituent Convention  (Constitutional  Assembly)  may see fit to take in respect thereof. [p.510]III.

It has been argued that the action thus taken is one taken in an extre- me emergency, to save the State from dissolution, and is relatable to powers derived from the maxim salus populi suprema lex.

The  scope  and  content  of this maxim were fully canvassed before the Court in the  earlier  case of Maulvi  Tamizuddin Khan by the Senior Counsel for the Federation of Pakistan.  It was possible for the Advocate-General of Pakistan,  who  attended the  proceedings  in Maulvi  Tamizuddin Khan’s case throughout, to have relied upon the powers derived from  this maxim, when he was asked in Usif Patel’s case  to  refer  the Court to the specific sources from  which the Governor General derived power to  make  constitutional  law with retrospective effect.  (For the validation of such law with  retrospec- tive effect undoubtedly is  tantamount to making such law).  No reliance was placed  by  the  Advocate-General  of Pakistan  at that stage upon the maxim salus populi suprema lax, but the argument,  based upon this maxim, that the Governor-General possessed powers over and above those contained in the con- stitutional  instruments  in force  which he was competent to exercise in an emergency, was fully present to the mind of the Court.  This appears clearly from several passages in the extracts from the judgment in Usif Patel’s case which  I have reproduced above.  It was said for instance that the Advocate- General of  Pakistan  Diplock, and “on the ground of emergency every kind of power  is  being  claimed for the  Head of the State”.   The  effect of that judgment is in  my opinion,  to make  it clear  that in relation to the very situation  which  the  Proclamation  of  the 16th April, 1955 is intended to remedy, this Court was  emphatically  of the  view that the Governor-General could  not  invoke any powers except  such  as  were  available to him under the  constitutional  instruments  in force.  To that  opinion, I steadfastly adhere, and nothing which has  been  said in  the arguments in the Reference affords  in  my view,  sufficient,  justification  for varying that finding, which constitutes law declared by this  Court under  section 212, Government of India Act, 1935. [pp. 514, 515]B.

Per  Muhammad  Sharif,  J.  (Contra)  –  On  constitutional matters the Governor-General is not competent to legislate and cannot, therefore, by his own act make valid laws which  he  himself  could  not enact. Realizing this difficulty, the learned counsel for the Government had recourse to the dicta like “salus populi est suprema lex” or “necessity make lawful what is other- wise lawful”

My  answer,  therefore,  to  question  No.  2  is that it is beyond the authority of the Governor-General  law,  to  do even for a short period what the Constituent Assembly alone could be. [p.519]C.

(b) Constituent Assembly—Dissolved by Governor General Proclamation– Whether  dissolution  was right–Indian Independence Act, 1947, S.5–Whether Constituent Convention proposed powers conferred by S. 8(1), Indian Indepen- dence Act, 1947 on the Constituent Assembly–Governer-General’s Reference to federal court under Government of India Act, 1935, Section 213.

Provisions  for a  constitution for the country not having been made by the Constituent Assembly of Pakistan that body was dissolved by Proclamation of the  Governor-General on 24th  October 1954,  the  ground  of dissolution stated in the Proclamation being that  the  Assembly had lost the confidence of the people and could no longer function.  The Proclamation also contained a  promise of early elections to enable the people through their representa- tives to decide all issues including constitutional issues.  The dissolution was challenged by Mr.Tamizuddin Khan, President of the Constituent Assembly, by a petition for writs  of mandamus  and quo warranto in the Chief Court of Sind which issued  the writs  prayed for  against the Federation of Pakistan etc.–the opposite party to the petition.

On appeal by  the  latter,  the Federal  Court  held that section 223-A which coinferred the power to issue writs was invalid having been enacted by an Act of the Constituent Assembly which had not  received the assent of the Governor-General.  The  writs  in  question  were  therefore cancelled.  The question  of dissolution of the Constituent Assembly, however, was not deci- ded. But the Federal Court’s finding that assent of the Governor-General was necessary  to all legislation of the Constituent Assembly rendered invalid a large  number of Acts  of that body of a constitutional nature passed in the course of about seven years, which Acts in accordance with a  Rule of proce- dure  of  the  Constituent  Assembly  had been enacted without obtaining the Governor-General’s assent.

       Whether  the  Constituent  Assembly  was  rightly  dissolved  by  the Governor-General?

     Whether the Constituent Convention proposed to be set up by he Governor -General will  be competent  to exercise  the powers conferred by subsection (1) of section 8 of the Indian Independence Act,  1947,  on the  Constituent Assembly? [pp 446, 449] V,V

     Answer  returned  to  the  Reference  was  (By majority)  of the Court, Muhammad Munir C.J delivering the leading judgment.  Conelius, J.  differing in reasons for a details of the answer.

     On the question whether the Constituent Assembly was rightly dissolved.

     That  on  the  facts  stated  in  the  Reference  namely,  (1) 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; (2) that in view  of the repeated representations from and resolutions passed by repres- entative  bodies throughout the country the Constituent Assembly, in the opinion of the Governor-General, became in  course of time  wholly unre- presentative  of the  people  of  Pakistan  and  ceased to be responsible to them; (3) that for all  practical purposes  the Constituent Assembly assumed the form of a perpetual Legislature;  and (4)  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. [p. 521]VI.

      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.

Subject to this :

(1)      that the correct name of the Constituent Convention is Constituent Assembly:

(2)      that the Governor-General’s right to dissolve the Assembly can only be derived from the Indian Independence Act ; ……………

(3)…….

(4)……..

    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. [pp. 521, 522]VII.

    The new Assembly,  constituted  under the Constitutent 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 [pp. 521,522]VII

     Per Muhammad  Munir C. J.–“It seems to me to be  perfectly  clear from this scheme of the  Indian  Independence Act, 1947, and the adapted  Govern- ment of India Act, 1935,  tht the absolute and unqualified prerogative right of this Crown and of the Governor-General as representative of the intention had  been  to  transfer  to the  Governor-General,  as representative of the Crown,  the  prerogative  right  of  summoning,  proroguing  and  dissolving the Constituent Assembly,  the  elaborate  constitutional structure that was  build  upon the of Indian Act, 1935, could have been pulled down by the Gov- ernor-General, with or without the advice of the Prime Minister; on the very  day  he  assumed  his  office  and  before the Constituent Assembly had even commenced to function”.

     “This possibility was certainly excluded by and is clearly inconsistent with  the  intention  of  the  Indian  Independence  Act, 1947, particularly subsection (1) of section 8 according to which the powers of the Legislature of the dominion were to be  exercisd  in the first instance by the Constitu- tent Assembly and  proviso  (e)  to  subsection  (2)  of  that section which similarly declared that  the  powers  of  the  Federal Legislature under the adapted Government of India Act, 1935, were  to  be exercisable in the first instance by the same Assembly.” [p452]D

     “The  whole  scheme of that Act (Indian Independence Act, 1947) appears to me to suggest  that  the  Constituent Assembly was to make a constitution under subsection (1) of the  section 8 of the Act as well as to exercise the powers of the Federal Legislature under the adapted Government of India Act, because the words ‘in the first instance’ on which considerable emphasis was laid by Mr. Diplock in another connection and which occur both in subsection (1) and clause (e) of the  Provision  to subsection  (2) of that section are 8nmistakably indicative of the intention  that the  Constituent Assembly, if it functioned according to the true intent  of the Constitution  Act, was in neither capacity to be dissolved. A dissolution that either under the Indian Independence Act,  1947  no  unqualified  delegation  of  the prerogative of dissolution can be read in  section  5 of  the Indian General’s appointment, [pp. 457,458] E

     “If  we  look  at  the  language  of subsection (1) of section 8 of the Indian Independence Act it becomes perfectly clear that because the power of making provision as to the  constitution  of  the Dominion had been given to the  Constituent  Assembly,  the  prerogative to  dissolve that Assembly was taken away if that Assembly did exercise its powers  to make provision as to the  constitution of  this country.  It is,  however, equally clear that the provision constitution granted toPakistanby  the  Indian Independence Act, 1947, is that subsection gave to the Constituent Assembly  an opportunity to frame a working or functioning constitution for the country within a reason- able time  and not the right to go on with constitution making indefinitely.  The prerogative  to dissolve,  therefore,  must be taken  to have been taken away by the Act only if the Constituent Assembly performed the duty assigned to it by the Act, and if the Act did not intend to instal that Assembly as a perpetual legislature, the prerogative of dissolution  which was in abeyance must be held to have revived when it became apparent to the Governor-General that the Constituent Assembly was unable or had failed to provide, a consti- tution  for  the country.  It could  certainly  not  be the intention of the Indian Independence Act that in the guise of a constitution  making body the Constituent  Assembly  could  function  as the  Legislature  of the Dominion indefinitely  until  it became necessary to remove it by revolution.  And if that  was  not the intention  of the Act, it must follow that the common law prerogative to dissolve was  not taken  away by the Act in that contingency.  The words  “in the first instance”  in subsection  (1)  of section  8 of the Indian Independence Act, 1947, appear to me to indicate  quite clearly  that an  indefinite  life for the Assembly was not intended and that the preroga- tive right to  dissolve  it was  excluded only if the Assembly performed the duty assigned to it, unable or  refused to  perform the function assigned to it, and not the contrary assumed the  form of a perpetual  legislature,  the right,  in  that even to dissolve it was not taken away by the Act” [pp 464, 465] F

     The  Court’s opinion was expressed on assumption of facts as set out in the Reference [pp. 461, 462] H,I,J

     In  the  Court’s  opinion  the prerogative power of dissolution revived because;

     (1) The Assembly was not performing its function [p 470]K

     (2) It had become un-representative in character. [p 470]I

     (3) It had violated the requirement of the Governor General’s assent to all laws passed by it [p 471]M

      “In  a democratic constitution of the British type such as in envisaged by the  Indian  Independence  Act,  1947 and the adapted Government of India Act, 1935, the  power to  dissolve a  representative legislative institution implies the right to convene another,the power exercised in both cases being a prerogative power. [p.472]N

     “Under the Indian Independence Act, 1947, there is no  provision  rela- ting  to  the Convention or composition of a fresh Constituent Assembly.  It follows therefore  that the  Governor General must, as representative of the Crown, 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 respon- sible to His Majesty’s Government in the United Kingdom,the present Governor General having been appointed to represent the King for  the purposes of the Government  of  the  Dominion,  is not responsible to any agency outside the Dominion, though in  law  the  source  of the authority in both 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 also can be set up by a similar order”. [pp472, 473]O

      I am therefore of the view that under the Indian Independence Act, 1947 the  Governor-General  had the authority to issue the Constituent Convention Order, 1955″. [p475]P

      Federation  of Pakistan  v.  Maulvi  Tamizuddin  Khan PLD 1955 FC 240, Attorney  General  v.  De Keyser’s  Royal Hotel, (1920) AC 508 and Sammut v. Strickland (1938) AC 678, ref.

      Per Cornelius, J (Differing in reasons for, and details of the answer); “…. the  power  of dissolution of the Constituent Assembly arises from the circumstance  that it is, as held in Maulvi Tamizuddin Khan’s case (PLD 1955 FC 240), the  Legislature  of the Dominion, and that the Governor-General of the Dominion possesses all  prerogative  of  His  Majesty,  among which must necessarily be included the power of dissolving the principal Legislature of the Dominion.” [p505]Q

      “…. there is a strong presumption that the prerogative of dissolution of the Legislature of the Dominion vests in the Governor-General and if this presumption  is  to be dislodged,  there must be either express provision to that  effect,  or  the  relevant  instruments must, by necessary intendment, produce the same result”. [p 506]R

      “Since the exercise of a prerogative power is not a justiciable matter, weather  it  is  rightly  or  wrongly  exercised is not a matter of law, and therefore not a suitable subject for  expression  of opinion by this Court”. [p. 506]S

      “….. So  long  as  the  Constituent Assembly does not provide for the setting up of a “Legislature of the Dominion” its  necessity for the  opera- tion of the existing Constitution remains. But,  once it has set up a Legis- lature 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.  I do not concern myself with the consideration of particular circumstances in which he may or may not  disso- lve the Constituent Assembly,in the exercise of his powers. That is a matter within  the  Governor-General’s  discretion,  and  is  subject to recognized conventions.  But  it  is no  part  of the duty of this Court to advise upon matters of convention.” [p. 507] T

      On  the  question of basis for the election of the proposed Constituent Convention.

      The  original  Constituent Assembly was elected upon the basis of these two instruments  [(i)  Plans  of the 16th of May, 1946 and (ii) plans of the 3rd of June,  1947],  and I  therefore look to these two instruments for the electoral law which governed  the constitution of that Constituent Assembly.

     I  can  see  no alternative for a constitutional head like the Governor -General,  but to repeat as nearly as may be, with the minimum of adaptation necessary  to provide for the changed circumstances the process by which the first Constituent  Assembly  was  constituted  by the then Governor-General, expressly in pursuance of the Plans mentioned above. [pp 508,509]U

       (c) Government of India Act, 1935, S, 213–Court may decline to answer a question which is of a too general character. [p 520] V

 In view of the decision of the majority of the Judges in Moulvi Tamizuddin Khan’s case, the Constituent Assembly as mentioned in the Indian Independence Act, 1947, is the “Legislature of the Dominion” for the purposes of that Act, which also provides for the Governor-General to be the representative of Her Majesty for the purposes of the Government of the Dominion.

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.

 The exercise of a prerogative power is not a justiciable matter. Therefore, the question whether the act of dissolution was “rightly” performed does not arise within this Court’s jurisdiction and the enquiry must be limited to the legality of the action.

 On the question whether the Constituent Convention was competent to exercise the powers of the Constituent Assembly under section 8 (1), Indian Independence Act, 1947:

 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 the Act. [pp. 521-522]VII.

 Per Muhammad Munir, C.J. – (On the powers of the proposed Constituent Convention):

 “In a democratic constitution of the British type such as is envisaged by the Indian Independence Act, 1947 and the adapted Government of India Act, 1935, the power to dissolve a representative legislative institution implies the right to convene another, the power exercised in both cases being a prerogative power.” [p.472]N.

 I am therefore of the view that under the Indian Independence Act, 1947 the Governor-General had the authority to issue the Constituent Convention Order, 1955.[p.475]P.

 Per Cornelius, J. – (Differing in reasons for, and details of the answer): “……..the power of dissolution of the Constituent Assembly arises from the circumstance that it is, as held in Moulvi Tamizuddin Khan’s case )PLD 1955 FC 240), the Legislature of the Dominion, and that the Governor-General of the Dominion possesses all prerogatives of His Majesty, among which must necessarily be included the power of dissolving the principal Legislature of the Dominion.” [p.505]Q.

 Since the exercise of a prerogative power is not a justiciable matter, whether it is rightly or wrongly exercised is not a matter of law, and therefore not a suitable subject for expression of opinion by this Court. [p.506]S.

 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. I do not concern myself with the consideration of particular circumstance in which he may or may not dissolve the Constituent Assembly, in the proper exercise of his powers. That is a matter within the Governor-General’s discretion, and is subject to recognized conventions. But it is no part of the duty of the Court to advise upon matters of convention”. [p.507]T.

 I can see no alternative for a constitutional head like the Governor-General, but to repeat as nearly as may be, with the minimum of adaptation necessary to provide for the changed circumstances the process by which the first Constitution Assembly was constituted by the then Governor-General, expressly in pursuance of the Plans mentioned above. [pp.508-509]U.

 Government of India Act, 1935, Section 213—Court may decline to answer a question which is of a too general character. [p.520]V.