BASIC SUMMARY

When India was being divided, the Government of India Act 1935 was the Constitution of India.
This Act was a detailed Statute having 321 Sections and 2 Schedules and was the last pre
independent Constitution of India, given to India by their British rulers. This Act was designed in
such a way that the British Government retained the control of India. To achieve this, the actual
administration of India was given in the hands of the British appointed Viceroy and provincial
governors who were subject to the control of the Secretary of State for India.

The Independence Act 1947, provided for the partition of India and two independent countries
known as, India and Pakistan, came into existence on 14th August 1947. The Independence Act
1947 was a short Act and declared that Constituent Assembly of both the countries were to have
the power to frame a Constitution and till then the Independence Act 1935 would serve as the
Interim Constitution for both the countries and the Constituent Assembly of both the countries
had the right to amend the Government of India Act 1935.

So Pakistan was born with a Constitution given to it by its British rulers, which became the blue
print for the framing of our future Constitutions. Under the original 1935 Act, the governor
general represented the British Crown in India and all authority laid with him. The Indian
Independence Act curtailed the powers of the governor general and the governor general was to
act on the advice of his ministers. In Pakistan the amendment to the powers of the governor
general was not enforced and the governor general of Pakistan was to have the same powers as
originally given to the governor general under the Government of India Act 1935. Therefore
from the inception of Pakistan there was no concept of power sharing.

The Constituent Assembly set to work in Pakistan to frame a Constitution for Pakistan. The
Constituent Assembly was given a dual role under the Indian Independence Act 1947. It was to
frame a Constitution for Pakistan and to act as the Federal Legislative Assembly till the
Constitution of Pakistan was framed and put to effect. A resolution was passed by the Muslim
League on 12th March 1949. This resolution was called the Objective Resolution. This
Resolution laid down some basic guiding principles for the framers of the Constitution. It
declared that absolute sovereignty belongs to Almighty Allah and the Pakistan Constitution was
to be based on the teaching of the Holy Quran and the traditions of the Prophet Hazrat
Muhammad (Peace Be Upon Him). This Resolution later became the preamble of all the
Constitutions of Pakistan and then was made a substantive part of the 1973 Constitution through
an amendment.
The Constituent Assembly struggled to frame a Constitution for Pakistan. The Constitution could
not be finalized as a tug of war started between the East and West Pakistan. There were many
objections to the various drafts prepared of the Constitution but one of the main criticisms was
that East Pakistan wanted more representation in the Central Legislature as East Pakistan had
majority population but West Pakistan did not agree. Bengal also wanted more autonomy but this
was not agreed to. The religious representatives were also not satisfied as there was no mention
of establishing an Islamic society. Prime Minister Muhammad Ali Bogra tried to pacify the East
and West wings of Pakistan by making various amendments to the draft of the Constitution. He
distributed the offices of the president and the prime minister between the East and West
Pakistan with other amendments to the draft of the Constitution, so that both wings of Pakistan
are pacified.

In the year 1954 the basic draft of the Constitution was completed by the Constituent Assembly
and was to be passed by the Assembly. But the Governor General Ghulam Muhammad was not
happy with the draft of the Constitution as the powers of the governor general had been
drastically curtailed. So to bar the passing of the Constitution of Pakistan, Governor General
Ghulam Muhammad dissolved the assembly on 24th of October 1954. Prime Minister
Muhammad Ali Bogra was ordered to form a new cabinet. In haste a cabinet was formed, the
member of the cabinet included Major General Iskander Mirza, Dr Khan Sahib and General
Muhammad Ayub Khan, who was the commander in chief of the Pakistan Army. This was the
beginning of the Army governing the country even before a Constitution was framed for
Pakistan.

In the year 1954 the basic draft of the Constitution was completed by the Constituent Assembly
and was to be passed by the Assembly. But the Governor General Ghulam Muhammad was not
happy with the draft of the Constitution as the powers of the governor general had been
drastically curtailed. So to bar the passing of the Constitution of Pakistan, Governor General
Ghulam Muhammad dissolved the assembly on 24th of October 1954. Prime Minister
Muhammad Ali Bogra was ordered to form a new cabinet. In haste a cabinet was formed, the
member of the cabinet included Major General Iskander Mirza, Dr Khan Sahib and General
Muhammad Ayub Khan, who was the commander in chief of the Pakistan Army. This was the
beginning of the Army governing the country even before a Constitution was framed for
Pakistan.

The proclamation of emergency and the dissolution of the Constituent Assembly by the
Governor General Ghulam Muhammad were challenged in Chief Court of Sindh by Maulvi
Tamizuddin, the president of the dissolved Assembly. Maulvi Tamizuddin was a man of strong
character and highly respected. A writ was filed under section 223-A of the Government of India
Act 1935 challenging this illegal step taken by the Governor General Ghulam Muhammad. The
Chief Court of Sindh accepted the writ petition of Maulvi Tamizuddin. Governor General
Ghulam Muhammad went to appeal to the Supreme Court, known as the Federal Court then. The
Federal Court passed a judgment in favour of the Federation of Pakistan and over turned the
judgment of the Chief Court of Sindh, on technical grounds. The judgment of the Federal Court
was of 64 pages but no finding was given as to, whether the governor general had the power to
dissolve the Constituent Assembly. This judgment harmed the Constitution development in
Pakistan and paved the way for the executive to use the judiciary to justify its malicious acts.
(PLD 1955 Federal Court 240(Appelalte Jurisdiction) Federation Of Pakistan etc Vs Maulvi
Tamizuddin Khan).

As the result of the decision of the Federal Court (Supreme Court) a legal vacuum was created so
the Governor General Ghulam Muhammad promulgated the Emergency Ordinance IX of 1995
and through this Ordinance gave himself the power to frame the Constitution for Pakistan. The
governor generals Emergency powers were soon challenged in the Federal Court (Supreme
Court). The Federal Court (Supreme Court) declared in the leading Constitutional Case Usif
Patel & 2 others vs The Crown, PLD 1955 Federal Court 387 (Appellate Jurisdiction), that the
governor general had no power to make provisions to the Constitution of Pakistan. After this
decision of the Federal Court the country faced Constitutional crisis which was greater than
when the governor general had dissolved the Constituent Assembly. The country was on the
verge of a collapse. A Reference was sent to the Federal Court so as to come out of this legal
disaster. PLD 1955 Federal Court 435 (Advisory Jurisdiction). The Federal Court relying on the
alien concept of doctrine of necessity, validated the laws listed in the Emergency Powers
Ordinance 1955. This was the beginning of the history of the doctrine of necessity in Pakistan,
which made the country suffer more than words can express.

After the Usif Patels case the desire of the governor general to frame the Constitution was put to
an end and a Constituent Assembly was constituted.

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 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.

The Federal Court having held in Moulvi Tamizuddin Khans 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 Patels 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 Courts 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.

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 Chittys 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
Patels 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-Generals 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
Diceys 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 Courts
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.

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