BEGUM NUSRAT BHUTTO
Vs.
THE CHIEF OF THE ARMY STAFF
Page #:
58,59,60,61,62,63
Case Reference:
PLD 77 SC 657
Mr. Zulfikar Ali Bhutto and 10 other leaders of the Pakistan Peoples Party were arrested on 17 September 1977 and detained in prisons under Martial Law Order No.12 of 1977. Begum Nusrat Bhutto, the wife of Mr. Zulfikar Ali Bhutto challenged their detention in the Supreme Court of Pakistan by filing a Constitutional Petition under Article 184 (3).

The Supreme Court dismissed the petition unanimously as not being maintainable for the following reasons:-

(i) Asma Jilani did not render illegal the successive governments and constitutions framed thereafter.

(ii) Madzimbamuto, [1968]3 All E.R. 561 cannot be regarded as judicial authority for the proposition that effectualness of new regime provides its own legality; considerations of morality and justice cannot be excluded from the concept of law and legality.

(iii) Kelsen’s pure theory of law is not universally accepted, and is not consistent for full application in all revolutionary situations coming before courts for adjudication as to validity of new legal orders resulting from such revolutions. The theory is open to serious criticism on the ground of excluding from consideration sociological factors of morality and justice. Legal consequences of an abrupt political change by imposition of Martial Law have to be judged not by application of an abstract theory of law in vacuum but by consideration of total milieu preceding the change, i.e. objective political situation prevailing at time, its historical imperatives and compulsions, motivations of persons bringing in change and extent of preservation of suppression of old legal order. The theory has no relevance where breach of legal continuity is admitted or declared to be of a pure temporary nature and for a limited specific purpose because such phenomena is one of theory to such transient and limited change in the constitutional continuity of a country is inappropriate.

(iv) Asma Jilani is not applicable to the facts of the present case and the Principles of State necessity enunciated in the Reference by the Governor General, P.L.D. 1955 F.C. 435 will have to be invoked for solving the present constitutional deadlock.

(v) There were allegations of widespread and massive interference with sanctity of ballot by Government officials in favour of candidates of the ruling party and consequently there was national wave of resentment giving birth to country wide protest agitation. The disturbances got out of control of civil armed forces and resulted in heavy of life and property. The troops were called by the Federal Government and local Martial Law had to be imposed in several important cities. Local Authorities of smaller towns requisitioned military assistance. The rigging of the elections and the official interference with elections was proved by the judicial decisions. The Chief Election Commissioner made public statements ratifying widespread allegations made by the opposition regarding official interference with elections and endorsing their demand for fresh elections. The demand for resignation of the Prime Minister and for fresh elections continued unabated. Despite Prime Minister’s dialogues with the opposition parties and temporary suspension of movement, the officials charged with maintenance of law and order continued to be apprehensive of terrible expansion beyond the control of Civil Authorities in the event of a failure of talks. The talks between Prime Minister and the opposition parties leaders on the basis of his offer of holding fresh elections dragged on for various reasons and ultimately the opposition parties insisted on 9 or 10 points being yet to be resolved and the Prime Minister also stated that his side would similarly forward another 10 points if the opposition failed to ratify accord allegedly reached earlier. The Punjab Government, during crucial days of deadlock, sanctioned distribution of fire arms licences on a vast scale to its party members and the Special Assistant to the Prime Minister deliberately made provocative statements. The normal economic, social and educational activities got seriously disrupted as a result of the agitation and incalculable damage was caused to the nation and the country. The constitutional and moral authority of the Prime Minister to rule the country stood seriously eroded and his government found it difficult to maintain law and order to run ordinary administration and to keep open educational institutions and to ensure normal economic activities. Situation deteriorated to such an extent that the Services Chiefs themselves felt the necessity of making a declaration of loyalty to the government so as to boost up Prime Minister’s authority to help restore law and order but even such a declaration did not have any visible impact on the momentum of agitation. The constitutional authority of the Prime Minister and his federal ministers as also of provincial government was repudiated on a large scale throughout the country. The representative character of the national and provincial assemblies was not accepted by the people at large, and serious political crisis lead to breakdown of constitutional machinery concerning the executive and legislative organs of state. For such a situation no solution was provided by the constitution and therefore the Armed Forces of the country in such eventuality intervened to save the country from further chaos and bloodshed to safeguard integrity and sovereignty of the country and to separate warring factions. The step though extra-Constitutional yet obviously dictated by highest consideration of state necessity and welfare of people and the consequent imposition of Martial Law was welcome by almost all sections of the population. So the Chief martial Administrator took over administrator only for a short time to arrange for fresh elections at shortest possible time and assured the people to hand over the government to the chosen representatives of the people and persuaded the people and judges of the Supreme Court to willingly accept such interim arrangements. The new arrangements dictated by consideration of state necessity and welfare of the people acquired its effectiveness owing to its moral content and promise of restoration of democratic institutions and was therefore justified on the basis of doctrine of necessity.

(vi) The question of considering application of the doctrine of necessity did arise in this case since the court was not persuaded by arrangement that military intervention provided its own legality simply for the reason of its being accepted by the people and becoming effective. The old constitution even if assumed to be completely destroyed or suppressed, the judicial concept and notions of morality and justice nevertheless were not destroyed though the new legal order did not mention anything about them. The laws (Continuance in Force) Order, 1977 clearly mentioned that the country shall be governed as nearly as may be in accordance with the constitution of 1973 and all laws for the time being in force shall continue to be in force which is indicative of an intention of the new regime not to destroy legal continuity of the country as distinguished strictly from the constitutional continuity.
(vii) If power is assumed in an extra-constitutional manner by an authority which is not mentioned in the constitution, it does not always amount to usurpation of power. Question must be determined in the light of circumstances of a particular case coming before the court.
(viii) The doctrine of necessity and the principle embodied in the maxim salus populi est supreme lex is accepted not only in the Islamic jurisprudence but in other systems as well.

(ix) The true position emerging out of the facts of the case and the law applicable thereto is that the 1973-Constitution still remains the supreme law of the land, subject to the condition that certain parts thereof have been held in abeyance on account of State machinery. The President of the Pakistan and the Supreme Courts continue to function under the Constitution. The mere fact that the judges of the superior Courts have taken a new oath after the proclamation of Martial Law, does not in any manner derogate from the position, as the Courts had been originally established under the 1973-Constitutional, and have continued in their functions in the spite of the Proclamation of Martial Law. The Chief Martial Law Administrator, having validly assumed power by mean of an extra-Constitutional step, in the interest of the State necessity and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures when have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely-

a) All acts or legislative measures which are in accordance with, or could have been made under the 1973-Constitutuion, including the power to amend it;

b) All acts which tend to advance or promote the good of the people;

c) All acts required to be done for the ordinary orderly running of the state; and

d) All such measures as would established or lead to the established of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973-Constitution.

These acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial law Regulations, or orders, as the occasion may require.

The Superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principle underlying the law of necessity as stated above. Their powers under articles 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance.

BENAZIR BHUTTO VS. THE PRESIDENT OF PAKISTAN
Page #:
1152, 1153 & 1154
Case Reference:
PLD 1992 SC 492

A reference was filed on Ist January, 1990 against the appellant under Article 4 of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (P.O. 17 of 1977) by the President of Pakistan alleging misappropriation of secret service funds before the Special Court constituted under the Order. A charge was framed against the appellant on 13 May 1991 to which reply was submitted by the appellant.
The privileged material furnished alongwith the reference was declassified by the Prime Minister. The initial proceeding were held in camera but the Referring Authority made an application praying for holding proceedings in open court on the ground that the appellant made certain factually incorrect submission on the pretext that the matter involved is of a sensitive nature and disclosure of the expenditure of funds in question is against the national interest and security of the State, On 16 December 1991, the appellant filed an application claiming discovery, inspection and production of certain record. The application was resisted and privilege was claimed in respect of the documents in question on the ground that their production would severely damage national interest, national defence and diplomatic relations with foreign powers. The Special Court without examining the documents allowed the privilege and dismissed the application. The appellant preferred an appeal to the Supreme Court.

The Supreme Court allowed the appeal holding that-
(i) In England and in India, it is the Incharge Minister who issues the certificate of privilege but in our country position is different because of the provisions of Article 248 of the Constitution which grants immunity to the Minister from the answerability in Court of law with regard to the discharge of their duties. To assist on privilege being claimed by the Minister Incharge would in fact deny to the Court the opportunity of examiningthe justification or lack of it so far as the claim to privilege for the documents by a Minister is concerned.

According to minority’s view of Ajmal Mian J. the factum that Article 248 of the Constitution, 1973 grants immunity to the Ministers from the answerability in Court of law with regard to dischargeof their duties would not affect the question as to who is competent to claim privilege of non-production of a document under the relevant provision of the relevant statute.
(ii) Rule 4 (5) and 15 (1) (g) and (h) and Entry No.1 in Schedule V-A of Federal Government Rules of Business read with the instructions of Prime Minister issued in 1973 qualifies the Director of Intelligence Bureau (who is ex officio Secretary to the Government of Pakistan)as Head of the office and therefore he is competent to claim privilege under the law.
(iii) The extensive precedent law cited by the parties on the subject or the letter of the law on privilege is of no help to the Court; it is the principle and the policy underlying the law and the demands on any judicial system of doing evenhanded justice and making it equally appear so which alone can help the Court to resolve the controversy and the Court “had very little assistance almost none on these aspects of this appeal”.

(iv) There are three peculiar features of this case which distinguish it from the precedents cited at the bar:
(a) The proceedings before the Special Court were initiated by the State itself in which the core of controversy related to the unpublished material relating to the affairs of the State, highly sensitive and secret in nature and of a more recent past, the disclosure of which has been made by the State itself.
(b) Proceedings were held in camera on the request of the appellant and the State requested the Court to hold proceeding in open court which would be in national interest and will advance the ends of justice as the State had “nothing to conceal from the Court, public or press”.

(c) To the offence of “misconduct” as defined by Article 2 (a) of the Order, defence has been provided by Article 10 of the Order of having acted in good faith or pursuant “to the exercise of powers vested”. Such defence need not necessarily be pleaded or argues which has to be evaluated by the Court itself having access to the material sought to be withheld.

(v) There are two principles underlying the law of privilege:

(a) To cover with the veil of secrecy the common routine of business, is and abomination in the eyes of every friend to his country”. “To concede to them [the state] a sacrosanct secrecy in a court of justice is to attribute to them a character which for other purpose is never maintained, a character which appears to have been advanced only when it happens to have served the interest of some individual to obstruct investigation into facts which might fix him with a liability : Henry Wigmore, Anglo-American System of Evidence in Trials at Common law, Vol.V., p. 194. “It would be highly improper that their books should be wantonlysubjected to curious matter of justice that, if they contain evidence material to the parties in civil suits, they may have an opportunity of availing themselves of it” : Trial of Mabarajab Nundocomar, 20 How. St. Tr. 1057.

(b) “Whenjustice is at stake, the appeal to the necessities of the public interest on the other side is of no superior weight” for, in the administration of justice, it is also the public interest that is involved : Wigmore, p.199. The “openness of the administration, minimum of secrecy and privileges and the right to know, have been held to be a necessary requirement of a democratic society and an extension off the fundamental rights guaranteed”: S.P. Gupta vs. Tarkunde,A.I.R. 1982 S.C. 149.

(vi) The Special Court could not without examining the documents in the light of the requirements of the trial dispose of the question of privilege.

__________________
I want to fight an unended war....

Assent of the Governor-General had not been obtained to certain consti- tutional Acts of the Constituent Assembly. The Federal Court having held in Moulvi Tamizuddin Khan’s 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 Patel’s 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 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 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? [p. 520]I.
Answer returned to the Reference was: (By majority of Court Mohammad Munir, C.J., A. S. M. Akram, 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 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 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 circumstances postulated, legis- late for the society. This Court has held in Usif Patel’s 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-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 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 Dicey’s 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 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 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.
The legislative powers of the Governor-General under the existing Cons- titution are confined within the terms of section 42 Government ofIndiaAct,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 (Constitutional Assembly) may see fit to take in respect thereof. [p.510]III.
It has been argued that the action thus taken is one taken in an extre- me emergency, to save the State from dissolution, and is relatable to powers derived from the maxim salus populi suprema 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 retrospec- tive 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 lax, but the argument, based upon this maxim, that the Governor-General possessed powers over and above those contained in the con- stitutional 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 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. [pp. 514, 515]B.
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. [p.519]C.
(b) Constituent Assembly—Dissolved by Governor General Proclamation– Whether dissolution was right–Indian Independence Act, 1947, S.5–Whether Constituent Convention proposed powers conferred by S. 8(1), Indian Indepen- dence Act, 1947 on the Constituent Assembly–Governer-General’s Reference to federal court under Government of India Act, 1935, Section 213.
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 Proclamation also contained a promise of early elections to enable the people through their representa- tives 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 Sind 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 coinferred the power to issue writs was invalid having been enacted by an Act of the Constituent Assembly which had 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 deci- ded. 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 proce- dure of the Constituent Assembly had been enacted without obtaining the Governor-General’s assent.
Whether the Constituent Assembly was rightly dissolved by the Governor-General?
Whether the Constituent Convention proposed to be set up by he 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? [pp 446, 449] V,V
Answer returned to the Reference was (By majority) of the Court, Muhammad Munir C.J delivering the leading judgment. Conelius, J. differing in reasons for a details of the answer.
On the question whether the Constituent Assembly was rightly dissolved.
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 repres- entative bodies throughout 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 subsection (1) 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. [p. 521]VI.
On the question whether the Constitution Convention was competent to exercise the powers of the Constitution 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)…….
(4)……..
The new Assembly, constituted under the Constituent Convention Order, 1955, as amended to date, would be competent to exercise all the powers conferred by the Indian Independence Act, 1947, on the Constituent Assembly including those under section 8 of that Act. [pp. 521, 522]VII.
The new Assembly, constituted under the Constitutent Convention Order, 1955, as amended to date, would be competent to exercise all the powers conferred by the Indian Independence Act, 1947, on the Constituent Assembly including those under section 8 of that ACt [pp. 521,522]VII
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 Govern- ment of India Act, 1935, tht the absolute and unqualified prerogative right of this Crown and of the Governor-General as representative of the intention had been to transfer to the Governor-General, as representative of the Crown, the prerogative right of summoning, proroguing and dissolving the Constituent Assembly, the elaborate constitutional structure that was build upon the of Indian Act, 1935, could have been pulled down by the Gov- ernor-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 clearly 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 were to be exercisd in the first instance by the Constitu- tent 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.” [p452]D
“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 the 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 8nmistakably indicative of the intention that the Constituent Assembly, if it functioned according to the true intent of the Constitution Act, was in neither capacity to be dissolved. A dissolution that either under the Indian Independence Act, 1947 no unqualified delegation of the prerogative of dissolution can be read in section 5 of the Indian General’s appointment, [pp. 457,458] E
“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 constitution 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, however, equally clear that the provision constitution granted toPakistanby the Indian Independence Act, 1947, is that subsection gave to the Constituent Assembly an opportunity to frame a working or functioning constitution for the country within a reason- able 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 instal 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 consti- tution 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 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 (1) 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 preroga- tive right to dissolve it was excluded only if the Assembly performed the duty assigned to it, unable or refused to perform the function assigned to it, and not the contrary assumed the form of a perpetual legislature, the right, in that even to dissolve it was not taken away by the Act” [pp 464, 465] F
The Court’s opinion was expressed on assumption of facts as set out in the Reference [pp. 461, 462] H,I,J
In the Court’s opinion the prerogative power of dissolution revived because;
(1) The Assembly was not performing its function [p 470]K
(2) It had become un-representative in character. [p 470]I
(3) It had violated the requirement of the Governor General’s assent to all laws passed by it [p 471]M
“In a democratic constitution of the British type such as in 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. [p.472]N
“Under the Indian Independence Act, 1947, there is no provision rela- ting 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 respon- sible 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 cases 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”. [pp472, 473]O
I am therefore of the view that under the Indian Independence Act, 1947 the Governor-General had the authority to issue the Constituent Convention Order, 1955″. [p475]P
Federation of Pakistan v. Maulvi Tamizuddin Khan PLD 1955 FC 240, Attorney General v. De Keyser’s Royal Hotel, (1920) AC 508 and Sammut v. Strickland (1938) AC 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 (PLD 1955 FC 240), the Legislature of the Dominion, and that the Governor-General of the Dominion possesses all prerogative of His Majesty, among which must necessarily be included the power of dissolving the principal Legislature of the Dominion.” [p505]Q
“…. 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 relevant instruments must, by necessary intendment, produce the same result”. [p 506]R
“Since the exercise of a prerogative power is not a justiciable matter, weather it is rightly or wrongly exercised is not a matter of law, and therefore not a suitable subject for expression of opinion by this Court”. [p. 506]S
“….. So long as the Constituent Assembly does not provide for the setting up of a “Legislature of the Dominion” its necessity for the opera- tion of the existing Constitution remains. But, once it has set up a Legis- lature of the Dominion, which will by expression have the power of making provisions as to the Constitution of Pakistan, the Constituent Assembly can, without detriment to the country, eliminate itself as soon as the new Legislature of the Dominion is complete. Until that time, it seems to me that the Governor-General cannot be said, in law, not to possess the power of dissolving the Constituent Assembly. I do not concern myself with the consideration of particular circumstances in which he may or may not disso- lve the Constituent Assembly,in the exercise of his powers. That is a matter within the Governor-General’s discretion, and is subject to recognized conventions. But it is no part of the duty of this Court to advise upon matters of convention.” [p. 507] T
On the question of basis for the election of the proposed Constituent Convention.
The original Constituent Assembly was elected upon the basis of these two instruments [(i) Plans of the 16th of May, 1946 and (ii) plans of the 3rd of June, 1947], and I therefore look to these two instruments for the electoral law which governed the constitution of that Constituent Assembly.
I can see no alternative for a constitutional head like the Governor -General, but to repeat as nearly as may be, with the minimum of adaptation necessary to provide for the changed circumstances the process by which the first Constituent Assembly was constituted by the then Governor-General, expressly in pursuance of the Plans mentioned above. [pp 508,509]U
(c) Government of India Act, 1935, S, 213–Court may decline to answer a question which is of a too general character. [p 520] V
In view of the decision of the majority of the Judges in Moulvi Tamizuddin Khan’s case, the Constituent Assembly as mentioned in the Indian Independence Act, 1947, is the “Legislature of the Dominion” for the purposes of that Act, which also provides for the Governor-General to be the representative of Her Majesty for the purposes of the Government of the Dominion.
The majority of the Judges have also held that the Governor-General is invested with all the Royal prerogatives, except where barred by express words or necessary intendment. The prerogative of dissolution of the Legislature is recognized to exist in all representative institution in the British Commonwealth of Nations, and there are no words in relevant instruments, taking away, expressly or by necessary intendment, this prerogative power in relation to the “Legislature of the Dominion”. Consequently, the Governor-General must be held to possess the prerogative to dissolve the Constituent Assembly.
The exercise of a prerogative power is not a justiciable matter. Therefore, the question whether the act of dissolution was “rightly” performed does not arise within this Court’s jurisdiction and the enquiry must be limited to the legality of the action.
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:
The new Assembly, constituted under the Constituent Convention Order, 1955, as amended to date, would be competent to exercise all the powers conferred by the Indian Independence Act, 1947, on the Constituent Assembly including those under section 8 of the Act. [pp. 521-522]VII.
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.” [p.472]N.
I am therefore of the view that under the Indian Independence Act, 1947 the Governor-General had the authority to issue the Constituent Convention Order, 1955.[p.475]P.
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 Moulvi Tamizuddin Khan’s case )PLD 1955 FC 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.” [p.505]Q.
Since the exercise of a prerogative power is not a justiciable matter, whether it is rightly or wrongly exercised is not a matter of law, and therefore not a suitable subject for expression of opinion by this Court. [p.506]S.
So long as the Constituent Assembly does not provide for the setting up of a “Legislature of the Dominion” its necessity for the operation of the existing Constitution remains. but, once it has set up a Legislature of the Dominion, which will by expression have the power of making provisions as to the Constitution of Pakistan, the Constituent Assembly can, without detriment to the country, eliminate itself as soon as the new Legislature of the Dominion is complete. Until that time, it seems to me that the Governor-General cannot be said, in law, not to possess the power of dissolving the Constituent assembly. I do not concern myself with the consideration of particular circumstance in which he may or may not dissolve the Constituent Assembly, in the proper exercise of his powers. That is a matter within the Governor-General’s discretion, and is subject to recognized conventions. But it is no part of the duty of the Court to advise upon matters of convention”. [p.507]T.
I can see no alternative for a constitutional head like the Governor-General, but to repeat as nearly as may be, with the minimum of adaptation necessary to provide for the changed circumstances the process by which the first Constitution Assembly was constituted by the then Governor-General, expressly in pursuance of the Plans mentioned above. [pp.508-509]U.
Government of India Act, 1935, Section 213—Court may decline to answer a question which is of a too general character. [p.520]V.

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(a) Constitution of Pakistan (1973), Articles 112, 130 & 224:
Articles 112(2)(b) & 199 — Dissolution of Provincial assembly by the Governor — Governor in his order of dissolution of Provincial Assembly had given no reason at all, except a bald statement that the “situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution”, he referred neither to
the situation nor to the reasons which led him to form an opinion that “the Government of the Province cannot be carried on in accordance with the Constitution”. In fact the Government of the Province was being carried on normally and there were no abnormal circumstances in the Province — Such order of the Governor, held, was snot sustainable in law — High Court, however, declined to restore the Provincial Assembly or Cabinet. [p.763]O
Articles 130(8), 224, read with Articles 91(8), 105(3) & 48(5)(a)(b) — When National or Provincial Assembly is dissolved the Constitution seeks to maintain the continuity of the parliamentary system.
Where the National or Provincial Assembly is dissolved, the Constitution seeks to maintain the continuity of the system. Where the President dissolve the National Assembly, he is mandatorily bound under Article 48(5) to fix a date, not later than 90 days from the date of such dissolution, for the holding of the general elections to the said assembly and also to appoint a Caretaker Cabinet. The word “and” between sub-clauses (a) and (b) of clause (5) of Article 48 shows that the fixing of the date of the next general elections and the appointment of the Caretaker cabinet are co-extensive with the dissolution of the National Assembly. Under Article 224(2), when National or a Provincial Assembly is dissolved, a general election to the Assembly is mandatorily to be held within a period of ninety days after the dissolution and the results of the election have to be declared not later than fourteen days after the conclusion of the polls. Articles 48(5)(b) and 224(2), both read together, clearly show that the general election must be held within ninety days of the dissolution of the National Assembly and the dates which is to be fixed must be such which brings about the election within the stated period. Under Article 105(3), where the Governor dissolved a Provincial Assembly, he has to mandatorily
appoint, in his discretion, but with the previous approval of the President, a Caretaker Cabinet. Under Article 91(8), where a National Assembly is dissolved, the Prime Minister or any other Minister or a Minister of the State can be allowed to continue in his office during the period of dissolution, or instead any person can be appointed as Prime Minister or other Minister or as Minister of State during such period. Likewise, under Article 130(8), where a Provincial Assembly is dissolved, the Chief Minister or any other Minister can be allowed to continue in his office during the period of dissolution, or instead any person can be appointed as Chief Minister or other Minister during such period. Article 91(8) and 130(8) thus enable the executive powers to be exercised by the President and the Governor, which can only be exercised with the aid and advice of the Cabinet, for without the Cabinet their actions would be unconstitutional. The appointment of the Prime Minister from amongst Ministers at the Federal level and the Chief Minister from amongst Ministers at the Provincial level is mandatory, for a Cabinet can only be presided over by them and a Cabinet is not legally complete without them. The Cabinet cannot be presided over by the President. the constitutional oaths which the Ministers make before assuming offices also contain a provision by which they are bound not to reveal internal secrets, unless specially permitted by the Prime Minister or the Chief Minister. All these provisions cumulatively show that no sooner the Federal or the Provincial Assembly is dissolved, that Caretaker Cabinets have to be immediately installed, in keeping with the Parliamentary traditions of a Cabinet system of Government, with the Prime Minister or Chief Minister at the head. This is nothing more than an extension of the principle of continued Parliamentary responsibility, which is ingrained in the Parliamentary system. [p.765]Q
Article 112(2)(b) read with Article 58(2)(b) — Dissolution of National Assembly by the President and Provincial Assembly by the Governor — Governments are not compelled to disclose all the reasons they may have when dissolving the Assemblies under Articles 58(2)(b) and 112(2)(b) — Where some prime facie case was made out in the pleadings of the petitioners showing that extraneous reasons were taken into consideration when the
President and Governor took their decisions and the prior approval of the President was not obtained by the Governor, the burden does shift on the Government to furnish affidavits and file relevant material to meet the case of the petitioners. [pp. 775-776]EE & FF
STATE OF RAJHISTAN V. UNION OF INDIA AIR 1977 SC 1360. Ref.
Article 112(2)(b) — Dissolution of Provincial Assembly by the Governor — Circumstances prevalent on the date of dissolution of Provincial Assembly and question of a political issue of a nature facing the province threatening the life of the Provincial Assembly judicially examined — Held, primary basis on which the Provincial Assembly could have been dissolved, namely, that its functional working had become impaired, was not there — Dissolution order being ultra vires and unconstitutional, was void and unsustainable and must be struck down. [p.784]MM
Articles 112 read with Articles 58(2)(b) & 199 — Dissolution of National Assembly the President and Provincial Assembly by the Governor on the stated grounds not sustainable — Prime Minister in the Caretaker Cabinet is essential component — Consequent upon dissolution of the Assemblies, process set in motion in accordance with the provisions of the Constitution and steps taken thereto not to be interpreted and interfered with — Relief for restoration/reinstatement of dissolved Assemblies could not be made despite unsustainability of the order dissolving the
Assemblies and interference was declined and no direction was issued by the Court under Article 199 of the Constitution of Pakistan. [p.801]MMM

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