PLD 1955 Federal court 240

leading case, constitutional history of Pak, Case laws


Right after the emergence of Pakistan, as an independent state, a central legislature, called as the first Constituent Assembly, was formed which was regulated under the Government of India Act, 1935. The responsibility and the functions of that Assembly was, twofold, i.e., firstly making a constitution for the state and secondly to legislate as a Supreme Legislature of the country. The Assembly comprised of a president and 76 members. There was a Governor General as the Head of the state. 


According to a convention, which was later on developed as a rule, a bill was to , be signed by the Governor-General after passing from the assembly, for becoming a law. 


Moreover, the Governor-General could dissolve any minister, in accordance with the Article 10 of the Government of India Act, 1935, which he did to the previous Prime Minister Khawaja Nazimuddin, on March 1953, and then assigned the office of PM to Muhammad Ali Bogra who was acting at that time as ambassador in U.S.A. 
The Prime Minister achieved two amendments in the Constitution which stands as follow: 
(i) He, firstly, added in the Constitution 16th July, 1954, Article 223-A (containing all type of writs). 
(ii) Secondly, he repealed Article 10 in the Constitution, by virtue of which Governor-General could dissolve the ministers.
Mr. Muhammad Ali Bogra did not get both the enactments sanctioned from the Governor-General, Malik Ghulam Muhammad. PM did, all this, due to the apprehension of being dissolved.
But on the other hand, Governor-General observed another method. He dissolved the whole Assembly on 24th April, 1954, claiming that it had become ineffective, because of the failure in achieving its goal (Constitution making) within a due course of time. Governor-General used the following words:  
“The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function.” 


After the dissolution of the Assembly on 24th April, the president of the Assembly, late Maulvi Tamizuddin Khan challenged the proclamation as unconstitutional, illegal, ultra vires, without jurisdiction and inoperative.
He asked for a writ of mandamus;
“to restrain the government from interfering with the exercise of his functions as President of the Assembly."  
And for a writ of quo-warranto with a View: 
“to determine, the validity of certain appointments to the Governor-General’s Council of Ministers.” 
The full bench of the Chief Court of Sindh decided unanimously in the favor of Maulvi Tamizuddin Khan and allowed his writ petition. 
An appeal to the Federal Court against the decision of the Sindh Court was filed by the government. The Federal Court decided the case, by the majority of four to one, in favor of the Government and rejected Maulvi Tamizuddin Khan’s petition, on 21 March, 1955  



The main points in that judgment were as under: 

(a) Overruling of the Objections: 

Court overruled the objection taken on behalf of the Government that S. 223-A of Government of India Act, 1935 which invests the Court’s powers to issue writs had not received the assent of the Governor. General.  
it was held that the Indian Independence Act, 1935, did not provide that the assent of the Governor-General was necessary. Interpretation of Article 10: 
It was also held that the new Article 10 of the Constitution limits the power of the Governor-General to have his own choice of ministers.  


The most significant point in the judgment of the Federal Court was that it did not go into the question whether the Constituent Assembly was rightly dissolved by the (governor-General. Rather, the following observations were made:  

(1) Rejection of the validity of Section 223-A:

They rejected the validity of Section 223-A of the Constitution asserting that it had not yet been received the assent of the Governor-General, so the Courts cannot issue any type of writ.  

(2) Governor-General as Constituent Part:  

Court further held that the Governor-General is a Constituent part of the legislature, by virtue of the section aforesaid.


Justice A.R. Cornelius wrote a strong dissenting Opinion presenting following reasons: 
There is no obligation that all laws made by the Constituent Assembly of a constitutional nature require the assent of the Governor-General for their validity and operation because: 
(a) Our practice demonstrates the denial of allegiance to the British Sovereign, for example, Muhammad Ali Jinnah refused to take oath as per the British Tradition; and secondly Governor-General Ghulam Muhammad did not send his assent upon the accession to British throne of Queen Elizabeth II, as was tradition. Which means we are governing this region in a different way. 
(b) The derivation of the powers of the Constituent Assembly under Section 6(1) of the Indian Independence Act, 1935 overlooked the fact that it is the creation of supra-legal power to discharge the supra-legal function of preparing a constitution for Pakistan. 
(c) The Constituent Assembly was to be placed above the Governor-General, the Chief Executive of the state, for two reasons, firstly that the 
Constituent Assembly was a sovereign body, and secondly because the statutes under which the Governor-General was required to function, were within the competence of Constituent Assembly to amend. 
(d) There could be no doubt that neither the British Sovereign nor the Governor-General, as such was part of the Constituent Assembly 


The leading judgment was that of Chief Justice Muhammad Munir with which three other judges concurred. This judgment in Tamizuddin Khan’s case paved the way for future justifications by the judiciary of patently arbitrary, malicious and capricious acts of the executive on hyper technical grounds of self-serving theories or concepts.

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