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Petitioner: AKRAM SHAH VS Respondent: THE CROWN
P L D 1955 Lahore 464
P L D 1955 Lahore 464
Before M. R. Kayani, Shabir Ahmad, B. Z. Kaikaus, Abdul Aziz Khan and Akhlague Husain JJ
In the matter of setting at liberty Ex‑Major‑General Muhammad Akbar Khan, from illegal and improper detention in the Central Jail, Lahore
AKRAM SHAH‑--Petitioner
versus
THE CROWN‑--Respondent
(Proceeding under the Rawalpindi Conspiracy Special Tribunal Act, 1951)
Criminal Miscellaneous Petition No. 193 of 1955, decided on 15th June, 1955, under section 491, Criminal P. C.
(a) Law of Civil or State necessity--‑Basis in an emergency for temporary validation by Governor‑General of invalid legislation, viz., Rawalpindi Conspiracy (Special Tribunal) Act, 1951‑Whether necessity and good faith of necessity justiciable.
The Rawalpindi Conspiracy (Special Tribunal) Act, 1951, was rendered invalid for want of assent of Governor‑General, by the Federal Court's decision in Maulvi Tamizuddin Khan's case P L D 1955 F C 240. The Governor‑General, however, validated the Act by a Proclamation dated 16th April, 1955, and the validation was upheld, to take effect retros pectively and for a temporary period, by the opinion delivered by the Federal Court (P L D 1955 F C 435) in answer to a Special Reference by the Governor‑General under section 213 of the Government of India Act, 1935. The opinion was based on the law of civil or state necessity, and the validation was to be operative until the question of validation was decided upon by the Constituent Assembly which was pro posed to be set up in a short time.
Meanwhile habeas corpus petitions under section 491, Criminal P. C. were made on behalf of a number of prisoners undergoing sentences under the Rawalpindi Conspiracy (Special Tribunal) Act, 1951, the ground taken being that the Act was invalid for want of assent of Governor‑General and their detention was illegal.
It was argued for the prisoners that the opinion of the Federal Court delivered in answer to the Governor‑General's Special Reference was dependent on "the situation presented by the Reference", and since the Federal Court could not examine the situation in a Reference, the opinion was not final, and existence of civil or State necessity and its bona fides was open to examination by the High Court.
Held, that there was every indication in the principal opinion delivered in answer to the Reference that necessity or at least its good faith and perhaps both were justiciable issues.
Although the answers to the Reference created an impres sion that the Federal Court had approved of the validation of all the Acts which had been rendered invalid for want of assent of Governor‑General, the impression was superficial, subject to all assumptions of fact stated in the Reference and subordinate to all considerations which obstruct the free exercise of the law of necessity. If any thing was conceded to the Governor‑General, it was conceded grudgingly. The opinion of the Federal Court should not be misunderstood as conceding anything beyond the starkest, barest necess ity, and to the starkest, barest limit it should be confined. Until other law is laid down it is a reasonable inference that if the State is in grave danger, the Governor -General may act, but that it will be open to the Court‑ apparently ex‑post facto‑to examine the nature of the emergency and whether the action taken was suited to it.
The least, therefore, that could be said is that the good faith of "civil necessity" is a justiciable issue.
Per Kayani, J.‑‑-(On the question whether the High Court would, under the circumstances of the case, proceed to examine the merits or good faith of necessity). "I am inclined to hold, however, that subject to certain mental reservations, necessity is a justiciable issue and was so regarded by the Federal Court. On the second point also, I am clear that the Court can go into the question whether, if the elections were so manoeuvred as to rob the Assembly of a representative character, the basis for the opinion of the Federal Court disappears and, therefore, validation becomes unlawful. For both these purposes, however, it will be necessary for us to record evidence and this we are reluctant to do at the present juncture, when the election is almost in sight. Having indicated the direction in which our mind is working. We prefer to keep the prisoners in the Rawalpindi Conspiracy Case on bail till the Constitutent Assembly should meet or until such time as it should be made to appear that there is no likelihood of its meeting.
(b) Restriction and Detention Ordinance, 1944‑--Detention without any basis‑Illegal.
A number of prisoners undergoing sentences of imprison ment under the Rawalpindi Conspiracy (Special Tribunal) Act, 1951, were released on bail pending hearing of petitions under section 491 Criminal P. C. challenging the sentences on the ground that the Act in question had become invalid at its inception by the fact that it had not had the assent of the Governor‑General. Before the order of release had been fully executed, the Provincial Government served on the prisoners a detention order under section 3 of the Restriction and Detention Ordinance, 1944, re‑arresting before midnight those four or five who had been actually discharged fro m the jails.
Held, that the detention order was passed merely because the trial had become illegal by reason of the Federal Court judgment holding the Act invalid for want of assent of Governor‑General, and the High Court had passed a release order.
There was therefore no basis for the detention order, the mere use of the language of the Ordinance did not make it an order under the Ordinance.
Petitions against the orders of detention under the Ordinance of 1944, were, therefore, accepted.
Frustration of the High Court order of release on bail by issuing an order under the Ordinance was disapproved in the circumstances of the case.
Manzoor Qadir, M. I. Bhatti, M. Anwar, (Miss) Qari, Aftab Farukh, for Petitioners.
Faiyaz Ali, Advocate‑General of Pakistan, A. R. Changez, Advocate‑General, Punjab and Ijaz Ali, for Respondent.
ORDER
KAYANI, J.‑--The Federal Court having decided in Maulvi Tamizuddin's case (PLD 1955 FC 240) that assent of the Governor‑General was necessary to a legislation by the Constituent Assembly, whether in its capacity as the constitution‑making body or the Federal Legislature, the prisoners in the Rawalpindi Conspiracy Case who had been tried and convicted by a Special Tribunal under the Rawalpindi Conspiracy (Special Tribunal) Act of 1951 (as amended in 1952), filed petitions under section 491 of the Code of Criminal Procedure on the ground that in so far as the Acts in question had not been assented to, their detention was unlawful. A learned Judge of this Court thereupon issued notices to the Government and for the interval directed their release on bail. Before the order of release had been fully executed, the Provincial Government served on them a detention order under section 3 of the Restriction and Detention Ordinance, 1944, rearresting before midnight those four or five who had been actually discharged from the jails. I should at once say that, unless there is very grave danger to the State‑not in the sense in which we have got accustomed to "grave emergencies" we, do not regard it in good taste that judicial process issued by the High Court should be frustrated by a 1 cut‑and‑dry order intended any how to feed the previous detention.
While these notices were pending, His Excellency the Governor‑General declared the existence of a grave emer gency under section 102 of the Government of India Act and simultaneously promulgated Ordinance No. IX of 1955 "to validate certain laws and to provide for emergency powers" to the making of the new constitution the new province, and several other novelties, including a new High Court. The Federal Court judgment had the effect of rendering orphan some fortyfive Acts, and of these, all but ten, including the two Rawalpindi Conspiracy Acts, were validated by this Ordinance with retrospective effect. Conspicuous among the Acts that were not validated is the Amending Act which inserted section 223‑A in the Government of India Act, which gave supervisory powers to the High Court over the functioning of Government, an omission that has evoked some pathetically dolorous songs of protest from various Bar Associations.
Another important Act that was not validated and which has assumed greater importance since, was the Constituent Assembly (Increase and Redistribution of Seats) Act, 1949 (with its amendments), which provided for the addition of six seats to the Constituent Assembly, notwithstanding that the preamble of the Ordinance referred to it as one of the enactments "which purport to change the composition and powers of the said Constituent Assembly and of the Legis latures of the Provinces, and the said Assembly and the said Legislatures having thus become unconstitutional bodies, the constitutional machinery has broken down."
The thirty five enactments that were validated were shown in a schedule and the validation and the Ordinance itself purported to be in exercise of the power conferred by section 42 (1) of the Government of India Act "and of all other powers enabling" the Governor‑General in that behalf. It was also to be retrospective.
This constituted Chapter I of the Ordinance. Chapter II was somewhat more devastating. In section 3 it deleted certain sections of the Government of India Act‑the existing Chapter III of Part II; except section 18‑with the result that the Federal Legislature disappeared from the scene. Section 6 substituted section 46 of the Government of India Act by a different section empowering the Governor‑General among other things, to constitute the province of West Pakistan. By section 9, material alterations were introduced in section 219 and section 220 of the Government of India Act, which relate to the constitution of the High Courts in Pakistan, enabling the Governor‑General to establish a High Court of West Pakistan and providing that "the office of a Judge shall be vacated . ' . . . by the establishment of a High Court to replace the Court of which the Judge is a member". Here it may be pointed out that the omission to delete section 229 was a dangerous oversight, because so long as that section remains on the statute book, the Governor‑General cannot act under section 219 unless the Legislature of the Province of West Pakistan presents an address in that behalf to the Governor. But if such procedure was adopted, the order "shall provide for the continuance in their respective offices of the existing Judges", that is to say, the office of a Judge shall not be vacated. And if the intention was that all Judges should vacate office, that intention would not be fulfilled.
Chapter III contains a single section and a single sentence enabling the Governor‑General to make provision for the future constitution by an order.
While we were hearing these petitions, the appeal of a certain gentleman of the name of Mr. Usif Patel, who had been declared a goonda under the Sind Goonda Act, came up before the Federal Court (PLD 1955 FC 387), and the Federal Court, apart from removing the stigma of goondaism from the aforesaid gentleman, cleared for us a vast jungle of confusion if I may express my devoted appreciation with profound respect. (Not that there was any confusion in our minds on this issue, for we had never hesitated to think that the power of making laws relating to constitutional matters had been vested by the Independence Act in the Constituent Assembly alone). The Sind Goonda Act was a measure enacted by the Governor during the period of a proclamation under section 92‑A of the Government of India Act, and as section 92‑A had been inserted by an Order of the Governor -General under section 9 of the Independence Act and the Governor‑General's power to issue orders had been extended from the 1st April 1948, for a year by an Act of the Constituent Assembly, namely, The Indian Independence (Amendment) Act, 1948, which had not received the assent of the Governor -General‑the whole thing is a medley of constitutional effort it was contended that the Goonda Act was ultra vires of the Governor. The question of the validation of the Act of 1948 naturally engaged the attention of their Lordships of the Federal Court, and their conclusions, so far as relevant, are reproduced below :‑
" . . . . . Since the Governor‑General's power to promul gate Ordinances is subject to the same restrictions as the power of the Federal Legislature to make laws, the true issue in the case is whether the Federal Legislature was competent to amend subsection (5) of section 9 of the Indian Independence Act which the Constituent Assembly amended by the amending Act of 1948.
"The rule hardly requires any explanation, much less emphasis, that a Legislature cannot validate an invalid law if it does not possess the power to legislate on the subject to which the invalid law relates, the principle governing validation being that validation being itself legislation you cannot validate what you cannot legislate upon. Therefore if the Federal Legislature, in the absence of a provision expressly authorising it to do so, was incompetent to amend the Indian Independence Act or the Government of India Act, the Governor‑General possessing nc larger powers than those of the Federal Legislature was equally incompe tent to amend either of those Acts by an Ordinance. Under the Independence Act the authority competent to legislate on constitutional matters being the Constituent Assembly, it is that Assembly alone which can amend those Acts."
"On the question whether the Federal Legislature was competent to make the law sought to be validated, there cannot be two opinions. Under section 102 of the Government of India Act the Federal Legislature on the Proclamation of Emergency has the power to make laws with respect to any matter not enumerated in any of the lists in the Seventh Schedule to that Act. The learned Advocate‑General appeared to suggest that the scope of that section was wide enough to include legislation on constitutional matters The suggestion is entirely erroneous and is the result not only of a misunderstanding of the scope of section 102 and of the history of the legislation by the Parliament by which the words "or to make laws, whether or not for a province or any part thereof, with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act' were added to that section but also of a misconception of the effect of section 8 of the Indian Independence Act (P L D 1955 F C 387 at pp. 392, 393)."
The principal points for decision that were left there after were :‑
(1) Whether the Governor‑General had power to make an Ordinance when there was no Federal Legislature in existence ?
(2) Whether assent can be retrospective ?
(3) Whether the validation of the Rawalpindi Conspiracy Act and its amendments had the effect of validating also the trial under that Act, there being no express provision in the Ordinance to that effect ?
(4) Whether the Restriction and Detention Ordinance of 1944 stands repealed because by its very terms it was intended to operate during the period of emergency and that period was closed on the 1st of April, 1946 ?
(5) Whether section 10 of the Ordinance which excluded the entertainment of a habeas corpus application, was to be so read as to confine the exclusion to orders of detention passed "under the Ordinance", and whether the orders in the present case were, as Mr. Manzur Qadir argued, not under the Ordinance as * there was no material to satisfy the Provincial Government that the orders were necessary with a view to preventing the petitioners from acting in a manner prejudicial to the defence of the country ?
As a result of the judgment in Usif Patel's case (P L D 1955 F C 387). His Excellency the Governor‑General made a reference to the Federal Court under section 213 of the Government of India Act (P L D 1955 F C 435), soliciting opinion on certain legal matters, and mean while praying "that an interim order be made to the effect that until a report is received from the Federal Court on the questions submitted in paragraph 11 of this reference, no Court shall take any action, including the passing of an enforceable decree, judgment, order or writ, on the ground that any of the laws mentioned in the Schedule to the Emer gency Powers Ordnance, 1955 are invalid". This prayer was accepted by the Federal Court, and its order was received when we were about to deliver judgment in the cases before us. The prisoners, however, had already been bailed out in pursuance of the observations made in Usif Patel's case (1).
It was at this stage that a habeas corpus petition was made to this Court on behalf of the Martial Law prisoners of 1953, who had been tried and convicted by Military Tribunals and whose convictions and sentences ‑had been validated by the Martial Law Indemnity Act, 1953. It was argued on their behalf that the Act of Indemnity was unlawful inasmuch as it had been passed by the Constituent Assembly when it had rendered itself an unlawful body by the addition of six seats pursuant to the Increase and Redistribution of Seats Act, 1949 which had not received the assent of the Governor -General.
After making the reference, the Governor‑General issued a proclamation on the 16th April, 1955 assuming to himself until other provision was made by the Constituent Conven tion (which had been summoned by ‑an order of the 15th April), such powers as were necessary to validate and enforce the laws that were needed to avoid a breakdown of the constitutional and administrative machinery of the country or to preserve the State, and in exercise of those powers retrospectively validated and declared enforceable the laws mentioned in the Schedule to the Emergency Powers Ordinance No. IX of 1955. These powers were to be exercised by the Governor‑General subject to the opinion of the Federal Court on the reference.
On the 25th of May, 1955, Ordinance No. XVI of 1955 was promulagated. It provided that the Increase and Redistri bution of Seats Act, 1949, and its amendments shall be inserted in the aforesaid Schedule and shall be deemed always to have been inserted.
The questions which were referred to the Federal Court for opinions were four, but it was found unnecessary to answer the first question. For our purposes only the second and third questions are relevant.
Question No. 2.‑The Federal Court having held in Usif Patel's case that the laws listed in the Schedule to the Emergency Powers Ordinance could not be validated under section 42 of the Government of India Act, 1935, nor retrospective effect given to them, and no legislature competent to validate such laws being in existence, is there any provision in the Constitution or any rule of law applicable to the situation by which the Governor‑General can by order or otherwise declare that all orders made, decisions taken, and other acts done under those laws shall be valid and enforceable and those laws which cannot without danger to the State be removed from the existing legal system shall be treated as part of the law of the land until the question of their validation is determined by the new Constituent Convention ?
Opinion.‑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 is decided upon 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 purpurted to come into force."
Question No. 3.‑Where the Constituent Assembly was rightly dissolved by the Governor‑General ?
The answer was yes, and for the following reasons :‑
(1) That although it had functioned for more than seven years, it had not been able to frame a constitution.
(2) That it had in course of time become an unre presentative body.
(3) That it had for all practical purposes assumed the form of a perpetual legislature.
(4) That it had throughout asserted, contrary to law, that the constitutional provisions made by it under the Independence Act were valid laws without the assent of the Governor‑General.
Within a week of the report of the Federal Court on the Reference, there carne up for decision before that Court a civil appeal The Federation of Pakistan v. Ali Ahmad Husain Shah No. 14 of 1953 (PLD1955FC 522) in which the jurisdiction of the Federal Court itself was questioned. The jurisdiction was derived from the Privy Council (Abolition of Jurisdiction) Act, 1950, one of the forty five Acts which had become unlawful for want of the Governor‑General's assent and one of the thirty five Acts which had been included in the Schedule to Ordinance No. IX. Following their own opinion on the Refer ence, the Lord Justices held that the Act was valid "at present" . . . . that is to say, pending its final validation by the Constituent Assembly proposed to be set up.
The cases before us relate to the validation of the Rawal pindi Conspiracy (Special Tribunal) Act, 1951 (and its amend ment) and the Increase and Redistribution of Seats Act, 1949,
the effect of the latter being to validate the Martial Law Indemnity Act, 1953. It is true that if we strictly confine ourselves to the answers given by the Federal Court on the Reference, the Governor‑General has power under "the common law of civil or state necessity" to validate the laws listed in the Schedule and such laws are valid until the question of their validation is decided upon by the Constitu ent Assembly, but the answer is dependent on "the situation presented by the Reference", and it is argued that since the Federal Court could not examine "the situation" in each case in Reference, the opinion, irrespective of its being a mere opinion, (though entitled to very great respect) is not final. The subsequent case of Ali Ahmad Hussain Shah merely related to one particular situation presented by the Privy Council (Abolition of Jurisdiction) Act and laid down the law only in that particular context. The judgment of His Lord ship the Chief Justice of Pakistan gave five separate reasons for holding why it was necessary to validate that particular Act.
The argument is without fault and invites us to an exami nation of the reasons and observations upon which the opinion is based.
The principal question before the Federal Court was whether the Governor‑General had power to dissolve the Constituent Assembly in exercise of the Royal Prerogative. The Chief Justice made it clear that the Court's opinion had been invited on the basis of three assumptions of fact, namely, that (1) although the Assembly had functioned for seven years, it had not been able to produce a constitution and it had become a permanent. legislature, that (2) there had been repeated representations by the people that the Assembly had in course of time become a wholly unrepresentative body, and that (3) it claimed for itself the unlawful power of dispensing with the assent of the Governor‑General to its constitu tional enactments. Upon the contention of Mr. Pritt that the Court should go into the propriety or otherwise of the dissolution, his Lordship remarked : "We cannot on this Reference undertake this inquiry or record any findings on the disputed questions of facts because any such course would convert us into a fact‑finding tribunal which is not the func tion of this Court when its advice is asked on certain questions of law."
As regards the prerogative of dissolution, it was stated that this was the common law of England. It was in abeyance for the purpose of enabling the Constituent Assembly to make a constitution, but revived as soon as it became apparent to the Governor‑General that the Constituent Assembly was unable or had failed to provide a constitution for the country. The omission to provide a constitution for seven years was "sufficient ground" for the Governor‑General to hold that the Assembly had failed to perform its functions, "and if he came to that conclusion", the prerogative power revived. This was the opinion on the first assumption of fact. On the second assumption, his Lordship observed that the intention of the Independence Act being to give a representa tive Assembly to the new Dominion if the Constituent Assembly lost that character, it could not function as the Assembly intended by the Act and could be dissolved under the prerogative right.
On the third assumption of fact, it was held that the Constituent Assembly having taken up the position that assent of the Governor‑General was unnecessary, its…
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