Moulvi Tamizuddin Khan Case
On 24 October 1954, the first Constitutional Assembly was dissolved by Governor-General Ghulam Muhammad.[211] The grounds for dissolution were that the constitutional machinery of the country had broken down and the Assembly had lost the confidence of the people.
According to Jan Mohammed Dawood (1994), the Assembly did not have a representative character. Most of the members did not have a constituency of their own in Pakistan. The fact was proved in the elections of 1954, when only 14 were re-elected. From West Pakistan, 28 out of 40 were landlords, whereas in East Pakistan, 20 out of 40 were lawyers.[212] [213] This assembly had been making a constitution for the newly independent country since 1947 and meanwhile, the country was being run under an interim constitution which was an adaption of the Government of India Act, 1935. The president of the Constitutional Assembly, Moulvi Tamizuddin Khan, challenged this dissolution before the Sindh Chief Court (which later became Sindh High Court) as unconstitutional, illegal, ultra vires, without jurisdiction, inoperative and void. Moulvi requested that the court restrain the government from interfering under a writ of mandamus, and to determine the validity of certain appointments of the Governor-General’s Council of Ministers under a writ of quo warranto. The lawyer for Moulvi Tamizuddin, Mr. I.I. Chundrigar, stated before the court that “the constituent assembly is a sovereign and sacred body, it can only be extinguished by a revolution or a coup d' etat”.80 The Sindh High Court decided unanimously in favour of Moulvi Tamizuddin Khan.[214] The court accepted the sovereign and supreme power of the Constitutional Assembly regarding the constitution and law-making and found no powers were vested in the Governor-General to dissolve the Constitutional Assembly in the Indian Independence Act, 1947. The decision was challenged in an appeal by the government in Federal Court. On 21 March 1955, the Federal Court, under the leadership of Chief Justice Munir, decided the case in favour of the government and against Moulvi by a majority of four to one. The court reversed the judgment of the Sindh High Court on technical grounds without addressing the question of whether the assembly was rightly dissolved or not.[215] The dissenting judge in this case was Justice A.R. Cornelius. He placed the Constitutional Assembly above the Governor-General and found it to be a sovereign body.As a result of the above judgment, 46 of the Acts on the statute’s books became invalid. The Governor-General promulgated the Emergency Powers Ordinance IX of 1955 to frame the constitution, validate the laws already made by the Constituent Assembly and make central budgets.[216] This ordinance was challenged in the Federal Court. Chief Justice Munir, heading a full Federal Court bench in UsifPatel case, declared on 13 April 1955, that powers to make provisions to the constitution of the country could not be exercised by the Governor-General through an Ordinance.[217] After this declaration, the government requested that the Federal Court detail the constitutional steps to come out of this constitutional crisis in a Reference.[218] The courts had to fall back on the doctrine of state necessity to address the constitutional impasse by the Emergency Powers Ordinance, 1955.
The prompt statement from leading jurists against the original Federal Court judgment was that it paved the path of future “arbitrary, malicious and capricious acts of the executive on hyper technical grounds or self-serving theories or con- cepts”.[219] Hamid Khan (2001) declared Chief Justice Munir, on this decision, as a “supporter of the feudal-bureaucratic establishment of West Pakistan which was headed by his old friend Ghulam Muhammad”.[220] For Waseem, the decision ‘over-expanded’ the judiciary’s institutional resources and established the tenacity of the rule of law for the time to come.[221] For Mir Khuda Bakhsh Marri CJBHC, Munir CJ could have stood like Abu Hanifa and Thomas More, which means uprightness and truth.[222]
Cornelius is portrayed as a savior of ‘democracy’ and protector of fundamental rights in the later touted liberal dichotomy of dictatorship versus democracy.
There is a need to discuss the ideas of political change/development in the minds of Munir and Cornelius CJs in a coherent way connecting their legal decisions and writings after the Dosso case which adjudicated upon the 1958 coup. This is important right now to explore how Tamizuddin case tried to address the ongoing crisis in the political formations of postcolonial Pakistan.Because the Constituent Assembly did not make a new constitution in seven years, the statutes available to the judges of Sindh Chief Court were old colonial Acts or Independence Act of 1947 to address that ongoing transition from colonial to independence. Constantine CJ and Justice Villani of Sindh Chief Court thought that the prerogative of dissolution of assembly by His Majesty were in Governor-General, because he represented him. On the other hand, Justice Muhammad Bakhsh’s comments were a full assertion of independence for the people of India “to do what they liked with their own Constituent Assembly”. In an appeal in the Federal Court of Pakistan (which later became Supreme Court of Pakistan), Munir CJ, and Justices A.S.M. Akram, Muhammad Sharif and S.A. Rahman found the Crown as a constituent part of the parliament in U.K. and all Dominion Legislature and his assent a necessity. Judges considered any possibility of the Constituent Assembly as a sovereign body ‘a mistake’ and that it was supposed to function within the confines of the Indian Independence Act, 1947. The word ‘independence’ was meaningless in this Act.
On the other hand, Cornelius J tried to interpret the “degree of independence’ in ‘independent Dominion’ of Pakistan more than which was given in the Statute of Westminster, 1931 to other ‘Dominions’. For Cornelius J, the Governor-General was only ‘faithful’ to Her Majesty and no one else. Similarly, the Constituent Assembly’ was not the creation of British Parliament but a body which was representative of the “will of the people in relation to their future mode of Government”.
Cornelius was trying to break the colonial chains ‘constitutionally’, whereas political and economic formations in postcolonial Pakistan had taken neo-colonial turns under the cold war as explained above. For Paula Newberg, Cornelius’s views about ‘the will of the people’ were an attempt to establish a link of legislative power with popular sovereignty.[223] I disagree. There is no such thing as ‘popular sovereignty’ in Cornelius’s views. He was strongly against ‘popular democracy’ and details to follow in the coming section. In the absence of a new constitution, Munir CJ was compelled to rely on colonial statutes and available in Common Law to address this situation was the doctrine of necessity, though ‘technically’ for him.[224] Justice Cornelius did not challenge the doctrine of necessity but tried to limit the discretion derived from it. He pointed out that this principle should be the maxim, ‘salus populi supre molex’ (the welfare of the people shall be the supreme law). Apart from the books (constitution) and the courts (institutions), Munir’s mind was in the reason outside the courts. Enforcement of law in this case was against the sovereign and such cases are political or military for him. Therefore, the court should not decide in favour of one and against another, which may cause bloodshed.[225] He was clear about the ‘disastrous’ consequence of the judgment in the Tamizuddin case and he repeated the same in the Reference also. For him, responsibility rested on the legislature because it thoughtlessly proceeded with its business and assumed itself in the position of an irremovable Legislature. The Muslim League had lost in provincial elections of 1953 to the United Front[226] and won in Punjab with the help of landed aristocracy. Suhrawardy did not have the support to make the Muslim League a popular party.[227] Furthermore, Anti-Ahamdi disturbances and religious riots in 1953 had an impact on Munir as he headed the Commission made to resolve that issue.[228] He was very clear that law and order should be separate from politics because a district magistrate was enough to control the Anti-Ahamdi disturbances.[229] On the face of rising socialism, this disturbance could be fatal.One thing is very certain, that Ayub was behind this dissolution.[230] Ayub’s opinion was that the Constituent Assembly had lost its prestige and the demand for its dissolution was gaining support. Moreover, he believed that ‘unfettered democracy’ would be dangerous on the face of rising communism. Munir CJ warned that communism from within and without is quick to make use of this weakness of political governance.[231] Communism and sectarianism (Bengali) was connected in this dangerous political formation in the mind of Munir,[232] which emerged as National Awami Party—NAP in the years to come.
The fears of Munir and Cornelius, as well as other jurists were real and more detail about them is to come. Right now, it is suffice to argue that the Tamizuddin case can be connected with the Pindi Conspiracy case in structural terms. Whereas the weak and feeble reigning class comprising Constituent Assembly was unable to delink from the colonial relation, and they were equally fearful to go to people and re-elected. In that scenario, the hegemonic neo-colonial elite decided to use the civil and military bureaucracy as a seat of power to keep the exclusion of the masses. Landed and merchant elite happily accepted their reigning positions under this hegemony. This class formation gave birth to different state formations in Pakistan, which were the subject of legal and constitutional explanation. While liberal explanations give considerable attention to the dissenting judgment of Cornelius in this case, my own view is that there was no hero in this judicial battle. Rather, the judiciary in this case revealed itself to be part of the juridico-bureaucratic structure of the state. I will develop this explanation in the following section.
Before we conclude this case, it is not irrelevant to have a cursory look on the views of Maulvi Tamizuddin Khan, the petitioner who came ‘to rescue’ democracy. Maulvi Tamizuddin argued that he was against the presidential system based on fear, due to the history of a one-man rule in Muslim states.
Ayub’s logic was that a presidential system like that of the U.S. was not a monarchical system and with so many political parties, a parliamentary system was not feasible. Tamizuddin responded by asking for a decree of law allowing only two parties. The response from Ayub was that “you cannot control people’s conscience by legal contrivances”.[233] We can see how each of these accounts do not represents a democracy which considered peoples representation as the basis. Munir CJ decision was not a deviation from an ideal type of ‘independent’ and ‘neutral’ judiciary, nor it was a ‘historical’ accident that the judiciary stood with the civil-military bureaucracy. Rather, in the first two decisive decades of the newly independent Pakistan, the judiciary was the part-state structure leading political development more than any other developing country in that age of decolonization.2.7