Dissolution Of Constituent Assembly Of Pakistan

DISSOLUTION OF CONSTITUENT ASSEMBLY OF PAKISTAN DISSOLUTION OF CONSTITUENT ASSEMBLY OF PAKISTAN AND THE LEGAL BATTLES OF MOULVI TAMIZUDDIN KHAN By Syed Sharifuddin Pirzada, Senior Advocate The dark night of 23rd October, 1954 has been described as the Night of the Generals. The Prime Minister, Muhammad Ali Bogra returned from his foreign tour and drove straight to the Governor‑General House with a General to his right and a General to his left and was forced to agree to a proclamation dissolving the Constituent Assembly of Pakistan. The dawn of 24th October witnessed the demise of the sovereign democratic set, up. The case of Moulvi Tamizuddin Khan v. The Federation of Pakistan and others filed in Chief Court of Sindh in November, 1954 challenging the validity of the dissolution of the Constituent Assembly of Pakistan by the Governor‑General is undoubtedly a causea celebre. In view of the attempts of the authorities and their agencies to prevent the presentation of the writ petition, Moulvi Tamizuddin Khan reached the Court in a rickshaw through the side gate clad in burqa. His lawyers were threatened with arrests. I narrowly escaped from the car accident which seemed to be an attempt on my life. The Intelligence personnel tried to snatch the petition but the timely action of Mr. Roshan Ali Shah, the Registrar of the Sindh Chief Court, saved the situation. Sir George Constatine the Chief Justice threatened to take contempt action. The leading counsel Mr. D.N. Pritt had to be contacted confidentially and messages were exchanged in codes as if between the physician and the patient. Its brief account is found in the memories of Mr. Pritt entitled, `The Defence Accuses'. The unanimous decision of the Sindh Chief Court in declaring the dissolution as unconstitutional and restoring the Constituent Assembly and its President reflected the independence of judiciary and was indeed bold. In the appeal filed by the Government before the Federal Court, there were acrimonious encounters between Chief Justice Munir and Mr. I. I. Chundrigar, Senior Counsel of Tamizuddin Khan. The Government suppressed the file containing the views of the Quaid‑i‑Azam that the Constituent Assembly was a sovereign body and the laws enacted by it did not require the assent. The rules adopted by the Constituent Assembly of Pakistan in this behalf in May, 1948 were followed by the Indian Constituent Assembly in November, 1948. The Indian Supreme Court felt no hesitation in holding that no assent was required to the legislation passed by the Constituent Assembly as it was a sovereign body. However, the Appeal of the Government was allowed by Munir, C.J. in an abrupt manner on technical grounds. The writs of mandamus and quo warranto issued by the Sindh Chief Court were set aside on the ground that section 223‑A of the Government of India Act which conferred powers of writs was invalid as it had not received the assent of the Governor‑General. Mr. Justice A.R. Cornelius gave a dissenting judgment. When the Reference made by the Governor‑General was being heard, it was submitted on behalf of Moulvi Tamizuddin that the facts mentioned therein were incorrect and misleading and that an opportunity be afforded to controvert the same by an affidavit. Munir, C.J. declined. That evening Moulvi Tamizuddin Khan and his counsel took the decision to withdraw from the proceedings. Unfortunately, late in the night, the Junior Advocate of Moulvi Sahib happened to spot Mr. Mirza, the Registrar of the Federal Court, in the lobby of the Falleties Hotel and indiscreetly talked about the withdrawal from the proceedings. The Registrar alerted Munir, C.J. Next day when the Court resumed the hearings, the learned Chief Justice announced that Moulvi Tamizuddin could file his affidavit. This misled Moulvi Sahib. The affidavit and draft Constitution prepared by the Constituent Assembly were accordingly filed in the Federal Court. However in the opinion given by Munir, C.J. it was stated that in view of the advisory jurisdiction, the Court was to give the opinion on the basis of the facts stated by the Governor‑General in the reference. Unfortunately, the affidavit of Moulvi Tamizuddin was not taken into consideration. One of the main points involved was the effect of the Indian Independence Act, 1947. The said Act marked the end of British rule in the Sub‑Continent and India and Pakistan secured independence. The British transferred power to the two independent dominions which decided to remain in the Commonwealth. When the Indian Independence Bill was under discussion between Labour and Conservative Leaders, Churchill objected to its title. The stand taken by him about the dominions status is somewhat similar to the views expressed by Chief Justice Munir. The British Prime Minister, Attlee, replied to the points raised by him and his contentions concur with the conclusions reached by Chief Justice Cornelius. Be that as it may, Quaid‑i‑Jinnah was consistent throughout. Recently, a letter has been traced, which as written by Mr. Jinnah as early as 7th September, 1929 to Mr. Ramsay MacDonald the then British Prime Minister, wherein it was stated‑‑ "What we have to convince the different parts of the Empire is that the British Commonwealth of Nations does not mean only European races but of Dominions of His Majesty's Government wherever situated and the whatever nationality caste creed or colour they may be. (L/PO/101. India Office Library) If the British and the Congress (Gandhijee and Nehrus) had responded to Mr Jinnah's call, the Sub‑Continent would have attained dominion status in or about 1930‑1931. During the pendency of proceedings in the Sindh Chief Court and again to its title in the Federal Court attempts were made for compromise formula but Ghulam Muhammad (the Governor‑General) was adamant. When the Sindh Chief Court was about to announce the judgment, in accordance with the instruction of Muhammad Ali Bogra (the Prime Minister). The emissaries (Inamullah Khan and Muhammad Ali Rangoonwala) carried the letter of the Senior Minister Dr. AM Malik to advise the Queen to recall the Governor‑General. Unfortunately Muhammad Ali Bogra could not act in time. When the matter was pending in the Sindh Chief Court, the Governor‑General sent Justice Shahabuddin. Senior Judge of the Federal Court, to East Pakistan to act as the Governor. His absence from the Bench during the hearing of the Appeal and the Reference materially affected the decisions. Be that as it may, the dissent of Justice Cornelius is monumental. Charless Evans Huges says. "A dissent in a Court of last resort is an appeal to the brodding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the Court to have been betrayed". Justice Krishna Iver writes "Dissent when deliberately rested on principle is often a sign of democratic health". Muhammad Munir after his retirement as Chief Justice of Pakistan frankly conceded. 'The mental anguish caused to the Judges by these cases is beyond description. At moments like these public law is not to be found in the books. It lies elsewhere. "Stanley de Smith commented "It is clear that the leading decision in 1955 was not a very well‑disguised act of political judgment. By the normal canons of construction what the Governor‑General had done was null and void." Justice Yaqub Ali, former Chief Justice of Pakistan opined "The judgments in the case of Moulvi Tamizuddin Khan, Governor‑General's Reference 1 of 1955 and the State v Dosso had profound effect on the Constitutional development in Pakistan. As a commentator has remarked, a perfectly good country was made into a laughing stock'. MR D.N. PRITT S RECOLLECTIONS Mr. D.N. Pritt has referred to the circumstances in which he was engaged, in his Memoirs, Volume III, "The defence accuses". To quote his own words. CONSTITUTIONAL CASE Then, in 1954, I had another case in Pakistan. The Government had assumed power to dissolve the Constituent Assembly, and the speaker and some other members challenged this in the Courts, and employed me to appear for them. I was in Singapore at the time, and, thinking it unsafe to communicate with me by letter or cable, they sent one of their number of Singapore to talk to me. I agreed to do the case if it should prove possible, and we arranged, as a modest disguise for further cables, that I was a surgeon who might be required for a difficult operation in Karachi. Further talk took place in Colombo and I accepted the case, and arrived in Karachi by air, with my wife. My clients, fearing that I might be excluded from Pakistan by the Government if it realised why I was coming, did not meet us at the airport: we accordingly took the omnibus into Karachi, and got in touch with them there. We set about the arduous work of preparing arguments. I had an admirable junior, Syed Sharifuddin. I was not a 'a member of any Bar in Pakistan: on my previous visit mentioned above, I had been welcomed by the Court, and told that it would be very happy to hear me without bothering about qualifications: this time, as it was a matter of appearing before what had been the Chief Court of Sindh, the permission of the Court had to be obtained, and this was done without difficulty. Our claim was for an order under what is called `Writ Procedure' in India and Pakistan, and `Crown practice' in England, declaring that the assembly had not been validly dissolved. This procedure, which works relatively quickly, was obviously the correct one, but the Government, in addition to arguing that we were not entitled in law to the declaration for which we asked, also argued that Writ procedure was not appropriate. It was absurd that a Government, challenged as to the validity of its action, which must obviously be determined on its merits sooner or later, should attempt to win on a point which would not decide the substance of the matter, and thus leave the whole Constitutional position of the country in suspense. A little to my surprise, after long arguments and some impression of division of opinion among the Judges, we obtained a unanimous judgment from the Sindh Chief Court in our favour both on the question of procedure and on merit." KANGA AND ENGINEER Shortly thereafter I proceeded to Bombay and consulted Sir Jamshedji Kanga and Sir N.P. Engineer. On or about 28th November, 1954, we held consultations for about four hours. On 30th November 1954, they gave their opinion and their conclusions were: (1) The Governor‑General had no power to dissolve the Constituent Assembly as Governor‑General and that the Proclamation is ultra vires of his authority and is void and of no effect; (2) That even before the Independence Act there was no prerogative in His Majesty to dissolve the Indian Legislature. (3) That even if His Majesty had such a prerogative before the enactment of the Indian Independence Act, such prerogative ceased to exist after the Indian Independence Act came into force; (4) That even if such a prerogative existed after the Independence Act came into force, the power to exercise such prerogative has not been delegated or conferred on the Governor‑General; (5) That in any event the Governor‑General has not purported to exercise this power on behalf of her Majesty and the proclamation is not in the name of her Majesty; (6) As regards the prayer for a writ of quo warranto, in our opinion, the appointment of the Ministers purported to have been made by the Notification, dated 25th October, 1954 is invalid. The Ministers who were functioning until the Proclamation of dissolution was issued had not resigned. It can hardly be suggested that they were dismissed by the Proclamation in question. If that were so then the 3 Ministers now functioning including the Prime Minister should have been reappointed. That, however, was not done. In our opinion the appointment of the new Ministers is invalid." Mr. I.I. Chundrigar, myself and other Pakistani counsel did not charge any fees. Mr. D.N. Pritt took token fees which were paid by Mr. Roshanali Bhimjee. In the Reference, Munir, C. J. ordered the Government to pay a sum of Rs.10,000 to Mr. D.N. Pritt. The legal battles of Moulvi Sahib have a place of their own in the Constitutional and legal history of Pakistan. In this volume apart from the pleadings, summary of arguments have also been given. The said summary is based on my notes. I have also consulted the available reports of proceedings of some of the hearings of Sindh Chief Court as well as the Appeal in the Federal Court, which were prepared for the use of the Advocate‑General. The proceedings as published in the `Dawn' and the `Pakistan Times' proved helpful.