IMP.Const.LAW Cases...Pakistan
FIRST CONSTITUTIONAL CASE
MOLVI TAMIZ-UD-DIN'S CASE
OR
THE FEDERATION OF PAKISTAN
VS
MOLVI TAMIZ-UD-DIN KHAN
P.L.D.1955 S.C.240
INTRODUCTION:
"Appeared on the map of the world on 14th August,1947, Pakistan has no permanant constitution of its own. The Provisional constitution i-e the government of India Act,1935 along with Indian independence act, 1947 with certain amendments of alien conception and origin was temporarily enforced."
A constitutional Assembly was formed under the first Interim Constitution of Pakistan, which was entrusted with task of dual responsibility i-e.
To serve as a federal legislature, and
To frame a constitution for the country.
But on October 24, 1954, this constituent Assembly was dissolved by Governer General Ghulam Muhammad and the President of the Assembly Mulvi Tamizzuddin filed a petition in the Chief court of sindh whic gave its verdict in favour of the President of the Assembly. However, the Federla court of Pakistan over-ruled this decree and the action of the dissolution of the Assembly by Governer General was held as valid.
BACKGROUND AND DETAILS OF THE CASE
Dissolution of the First Constituent Assembly of Pakistan:
After dismissing the second Prime Minister Khwaja Nazimuddin's Government in April 1953, G.G. Ghulam Muhammad appointed Muhammad Ali Bogra as premier who was working as a diplomatic representative of Pakistan in USA and against all the norms of parliamentary prectices, he himself appointed other ministers in the cabinet. Muhammad Ali Bogra was naturally apprehensive of the possible repetition of the misuse of power by the G.G. and therefore with undue haste, passed a constitutional amendment through the Assembly on September 21, 1954. This amendment had the effect of stripping the G.G of his powers to dismiss the Prime Minister at will and to oblige him to act according to ministerial advice.
This amendment was naturally construed by the G.G. as an affront to him. Therefore, instead of showing his displeasure in a constitutional manner by offering his resignation, he struck back and proceeded to perpetuate his authority by dissolving the Constituent Assembly on October 24, 1954. He did this inspite of the fact that at that time the work of constitution-making was almost over and the Prime Minister had publically announced that the constitution was to be launched on December 25, 1954, being the birth day of Quaid.
The proclaimation read as follows:
" The Governer General having considered the political crisis with which the country is faced has with regret came to the conclusion that the constitutional machinery has broken. He therefore, has decided to declare state of emergency throughout Pakistan. The constituent Assembly as at present constituted has lost the confidence of the people and can no longer function. The ultimate authority vests in the people who will decided all issues including constitutional issues through their representatives to be elected afresh. Election will be held as soon as possible."
TWO IMPORTANT POINTS:
About the proclaimation two important things can be noted namely,
The proclaimation did not say that the constituent Assembly is dissolved. It simply said that it has lost the confidence of the people, and
No where in the proclamation the provisions or section of the Government of India Act,1935, under which this action was taken, was specified.
REAL MOTIVE BEHIND THE DISSOLUTION:
The reason given for dissolution of the Constituent Assembly were of course, eyewash for the public, as every one was aware of the G.G.'s differences with the constituent Assembly because prior to the proclamation, the constituent Assembly had passed two important bills, which were said to have some bearing on the sudden proclamation of the governer General.
The constituent Assembly had amended section 9, 10, 10A and 10B of the Government of India Act,1935 as adopted for Pakistan under which he was devastated of his power to dismiss Prime Minister.
Secondly, the constituent assembly had repealed on September 21, 1954 the Public Representative Office Disqualification Act (PRODA), 1949, which was to the members of Constituen Assembly,by the constituent Assembly.
Both these amendments were made by the Constituent Assembly in such haste that they were termed as " constitutional Coup" and subsequently led the Governer General to dissolve the constituent Assembly.
FILING OF WRIT PETITION:
The president of the assembly Molvi Tamizzudin filed two writ petitions i-e MANDAMUS and QUO-WARRANTO in the Chief Court of Sindh against the Governor General's order of dissolution as unconstitutional, illegal, ultra virus, without jurisdiction, in-operative and void.
VERDICT BY THE CHIEF COURT OF SINDH:
A full bench of chief court of Sindh decided unanimously (4 to 1 majaority) that the Governer General had no power to dissolve the Constituent Assembly, It was a sovereign body created for a specific purpose to frame a constitution and and it was to function till that purpose was completed. Constituent Assembly can only be dissolved by two third majority of its members.
APPEAL BY FEDERATION OF PAKISTAN:
The Federation of Pakistan and certain federal ministers who were affected by the judgment, went in appeal against the verdict of the Chief court of Sindh. It was argued on behalf of the federal Government that the Constituent Assembly was rightly dissolved.
DECREE/DECISION BY THE FEDERAL COURT OF PAKISTAN:
The Federal court of Pakistan heard the counsel of the parties for full fifteen days and gave its judgment on March 21, 1955. The Federal Court of Pakistan overruled the judgment of the chief Court of Sindh on a technical point that section 223 of the government of India Act, 1935 under which the chief court has issued the writs was not yet a law. This section 223 was added to the government of India Act, 1935 through an amendment. The constituent Asembly had passed the amendemnt but was not assented to by the governor General.
Thus the Federal court by majority of 4-1 gave its verdict in favour of the Federal Government and rejected Molvi Tamizzudin's petition challenging Governor General's proclamation of the October 24, 1954 by arguing that G.G was a constitutional part of the legeslation and therefore, every act passed by Constituent Assembly required Governor General's assent.
CONSEQUENCES OF THE DECESION OF THE FEDERAL COURT:
The most ssignificant point in the decesion of the Federal Court was that it did not go into the question whether the Constituent Assembly was rightly dissolved by the Governor general.
INVALIDITY OF THE ENORMOUS BILLS:
Many constitutional bills passed by the Constituent Assembly were authenticated without
EMERGENCY POWER ORDINANCE, 1955:
As the country was faced with legal vacume, G.G proclaimed the Emergency Power Ordinance, 1955 and assumed power to,
Make provision for formulating the provisional constitution of pakistan
Authenticate the central budget,
Make provision to constitute provisions of West Pakistan,
Name East Bengal as East Pakistan,
Validate law,which have passed by Constituent Assembly but had not recieved G.G assent.
YOUSAF PATEL V/S CROWN CASE 1955
the actions of G.G came for discussion before the Federal Court in Yousaf Patel vs Crown case.
The court while dealing with the case criticized the action of the G.G in enacting Constitutional legislation and in setting up a constitutional convetion as being beyond his powers.
A SEVERE BLOW FOR G.G's EFFECT:
This judgment was a severe blow for the G.G efforts to revalidate the invalid laws and make constitutional provisions through an ordinance.
FILING OF A REFERENCE IN FEDERAL COURT BY G.G:
As the country was facing the severe Constitutional cises, G.G therefore filed a reference in the Federal court of Pakistan. He sought the court's opinion on the following points.
Whether constituent Assembly was rightly dissolved by the G.G
Whether the contituent assembly convention proposed to be setup by the G.G will be competent to execise the power confferd on the Constituent Assembly by the Indian Independence Act,1947.
OPINION OF THE FEDERAL COURT OF PAKISTAN:
The court after carefull consideration of the issues raised, came up with the following details.
Reference of the dissolution of the constituent Assembly:
Regarding the dissolution of the constituent assembly the court said the the dissolution had become imperative as the constituent asembly had failed to frame the constitution for Pakistan in reasonable time.
Reference of the setting up of another constituent Assembly:
The court further held that the dissolved constituent assembly was set up under an executive order and not under law. Therefore, the new constituent Assembly can also be setup by similar order provided that it should be a representative body and the new Contituent Assembly could be competent to exercise all powers conffered by Indian Independence Act 1947.
CONCLUSION
the decesion of the Federal Court of Pakistan set the turn for all the future decesions.
G.G decesion to dissolve the constituent Assembly struck the first serious blow to the weak democratic institution in Pakistan.
This decesion has deep repercussion on the subseqent legal and constitutional development in Pakistan, the fruits of which we have eaten for a number of time throughout in our constitutional history.
The Federal court in order to make the G.G's act valid through this case declared as many as 46 laws null and void.
THANX
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