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Official Citation: 1955 PLD 435
Court / Jurisdiction: FEDERAL-COURT-OF-PAKISTAN
Parties: REFERENCE BY GOVERNOR GENERAL vs REFERENCE BY GOVERNOR GENERAL
This judicial decision was delivered by the FEDERAL-COURT-OF-PAKISTAN. The matter involves proceedings between REFERENCE BY GOVERNOR GENERAL and REFERENCE BY GOVERNOR GENERAL, officially reported as 1955 PLD 435. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
P L D 1955 Federal Court 435
P L D 1955 Federal Court 435
(Advisory Jurisdiction)
Present: Muhammad Munir, C. J., A. S. M. Akram,
A. R. Cornelius Muhammad Sharif, and S. A. Rahman, JJ
REFERENCE BY HIS EXCELLENCY THE GOVERNOR-GENERAL
(under section 213 of the Government of India Act, 1935)
Special Reference No. 1 of 1955, answered on 16th May, 1955.
(a) Governor-General's assent?Not obtained to certain con?stitutional Acts of Constituent Assembly?Governor-General's powers to temporarily validate, retrospectively, such invalid Acts--Common Law of civil or state necessity?Government of India Act, 1935, S. 213.
Assent of the Governor-General had not been obtained to certain constitutional Acts of the Constituent Assembly. The Federal Court having held in Maulvi Tamizuddin Khan's case (P, L D 1955 F C 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 (P L D 1955 F C 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 Legislature 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 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 a new Constituent Convention?
Answer returned to the Reference was: (By majority of Court Muhammad Munir, C. J., A. S. M. Akarm, 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 the 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.
Per Muhammad Munir, C. J.-(Dealing with the principle of civil or state necessity): The principle clearly emerging from this address of Lord Mansfield 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 .circum?stances postulated, legislate for the society. This Court has held in Usif Patel's case (P L D 1955 F C 387) that the Governor-General has no power to make such laws as are mentioned in subsection (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 be conceded that the power to act in ah 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 legislation. If, the law as stated by Chitty that the .Crown is the only branch of Legislature that is 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 preroga?tive power at a critical juncture is essential to the executive Government of every civilised 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 manner in which such power is exercised, whether in individual cases or by positive directions or restraint orders of a general character, is essentially a question of method and detail, not affecting the main principle. 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.
Per Cornelius, J. (Contra)?(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 tempora?rily 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 Constitution are confined within the terms of section 42, Government of India Act, 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 (Con?stitutional Assembly) may see fit to take in respect thereof."
It has been argued that the action thus taken is one taken in an extreme emergency, to save the State from dissolution, and is relatable to powers derived from the maxim salus populi supremo 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 retrospective 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 lex, but the argument, based upon this maxim, that the Governor-General possessed powers over and above those contained in the constitutional 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 was repudiating a position previously supported by Mr. 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.
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. Realising this difficulty, the learned counsel for the Government had recourse to the dicta like "salus populi est supremo lex" or "necessity makes lawful what is otherwise unlawful". These have been sometimes invoked in times of war or other national disaster to infringe private rights or commandeer private property, but we have not been referred to any authority or reported case where, under the stress of circumstances created by some interpreta?tion of law, these were extended to embrace changes in con?stitutional law. It might on occasions lead to dangerous consequences if in any real or supposed emergency of which the Head of the State alone must be the judge, the constitutional structure itself could be tampered with. It has a sanctity of its own Which is not to be violated. My answer, therefore, to Question No. 2 is that it is beyond the authority of the Governor-General, both under the Constitutional and the general law, to do even for a short period what the Constituent Assembly alone could do.
(b) Constituent Assembly?Dissolved by Governor-General's Proclamation?Whether dissolution was right-Indian Indepen?dence Act, 1947, S. 5?Whether Constituent Convention proposed to be set up by Governor-General was competent to exercise powers conferred by S. 8 (1), Indian Independence Act, 1947, on the Constituent Assembly?Governer-General's Reference to Federal Court under S. 213, Government of India Act, 1935.
Provisions for a constitution for the country not having been made by the Constituent Assembly of Pakistan that body was dissolved by, a 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 representatives 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 Sindh 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 conferred the power to issue writs was invalid having been enacted by an Act of the Constituent Assembly which 1had 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 decided. 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 procedure of the Constituent Assembly had been enacted without obtaining the Governor-General's assent. The Governor-General, there-fore, proceeded to validate those Acts by signifying his assent with retrospective effect by, means of an Ordinance (Emergency powers Ordinance, IX of 1955) issued under section 42, Government of India Act. The Federal Court, however, held in Usif Patel's case, that the Governor-General could not validate these Acts by an Ordinance. As the question of validation was of great urgency, the Governor-General while summoning a Constituent Convention for the purpose of making provision as to the constitution of Pakistan also issued a Proclamation validating the Acts which he had formerly sought to validate' by an Ordinance, referring at the same time the question of validating the Acts for the opinion of the Federal Court under section 213, Government of India Act, 1935. On this Reference coming up for a preliminary hearing the Court's order suggested that the following questions might also be included in the Reference :
Whether the Constituent Assembly was rightly dissolved by the Governor-General ?
Whether the Constituent Convention proposed to be set up by the 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?
Accordingly, the Governor-General referred- the above questions for the opinion of the Court.
Answer returned to the Reference was : (By majority of the Court, Muhammad Munir, C. J. delivering the leading, Judgment, with which A. S. M. Akram and S. A. Rahman, D. agreed, Cornelius, J. differing in reasons for, and details of the answer) :
On the question whether the Constituent Assembly was rightly dissloved.?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 representative bodies through-out 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 sub section (I) 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.
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:
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) that the arrangements for representation of States and Tribal Areas can, under the proviso to subsection (3) of section 19 of the Indian Independence Act, be made only by the Constituent Assembly and not by the Governor-General ; and
(4) that the Governor-General's duty being to bring into existence a representative legislative institution he can only nominate the electorate and not members to the Constituent Assembly.
The new Assembly, constituted under the Constituent Convention Order, 1955, as amended to date, would be com?petent to exercise all the powers conferred by the Indian Independence Act, 1947, on the Constituent Assembly includ?ing those under section of that Act.
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 Government of India Act, 1935, that the absolute and unqualified prerogative right of the Crown and of the Governor-General as representative of the Crown to dissolve the Assembly was taken away. If the intention had been to transfer to the. Governor-General, as representative of the Crown, the prerogative right of summon?ing, proroguing and dissolving the Constituent Assembly, the elaborate constitutional structure that was built upon the Indian Independence Act, 1947, and the adapted Government of Indian Act, 1935, could have been pulled down by the' Governor-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 clear - 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 Wert to be exercised in the first instance by the Constituent 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."
"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 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 unmistakably indicative of the intention that the Constituent Assembly, if it functioned according to the true intent of the Constitution Acts, was in neither capacity to be dissolved. A dissolution is no more than an appeal to the electorate, and it is admitted that neither under the Indian Independence Act, 1947, nor under the adapted Government of India Act, 1935, there exists any provision relating to fresh elections to the Legis?lature of the Dominion or the Federal Legislature. This, in my opinion, being the correct interpretation of the Indian Independence Act, 1947, no unqualified delegation of the prerogative of dissolution can be read in section 5 of the Indian Independence Act, 1947, or in the warrant of Governor-General's appointment."
"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 con?stitution 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, how-ever, equally clear that the provisional constitution granted to Pakistan by the Indian Independence Act, 1947, and the adapted Government of India Act, 1935, was until its nature was altered by a law made by the Constituent Assembly, a democratic constitution, and it cannot possibly be contended that the Constituent Assembly had been given the power to function as long as it liked and assume the form of a perpetual or indissoluble Legislature. The only reasonable construction of subsection (1) of section 8 of the Indian Independence Act, 1947, is that that subsection gave to the Constituent Assembly an opportunity to frame a working or functioning constitu?tion for the country within a reasonable 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 install 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 constitution 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 a 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 (t) 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 prerogative right to dissolve it was excluded only, if the Assembly performed the duty assigned to it, within a reasonable time. Therefore if the Assembly was unable or refused to perform the function assigned to it, and on the contrary: assumed the form of a perpetual Legislature, the right in that event to dissolve it was not taken away by the Act."
"If there was a clear assumption in the Indian Independence Act that the constituent Assembly would frame a constitu?tion for the country and then dissolve itself and the whole structure of that Act was built upon that assumption, then it is obvious that-for more man seven years the Assembly having made no constitution for the country and on the contrary having assumed the form of a Legislature for an indefinite period, its dissolution was in furtherance and not ' in contraven?tion of the intention of the Act."
The Court's opinion was expressed on assumption of facts as set out in the Reference.
In the Court's opinion the prerogative power of dissolution revived because :
(1) The Assembly was not performing its function.
(2) It had become unrepresentative in character.
(3) It had violated the requirement of the Governor-General's assent to all laws passed by it.
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."
"Under the Indian Independence Act, 1947, there is no provision relating 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 responsible 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 cages 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."
"The only legal requirement in setting up a new Assembly is that it should be a representative body, but in attaining that object time, practicability, and agreement between various political leaders are as much relevant factors as they were in the Cabinet Mission's Plan of 16th May and His Majesty's Government's announcement of 3rd June, l941. I am there-fore of the view that under the Indian, Independence Act, 1947, the Governor-General had the authority to issue the Constituent Convention Order, 1955."
Federation of Pakistan v. Maulvi: Tamizuddin Khan P L D 1955 F C 240, Attorney General v. De Keyser's Royal Hotel,. (1920) A C 508 and Sammut v. Strickland (1938) A C 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 (P L D 1955 F C 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."
".... 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…
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