MAULVI TAMIZUD DIN CASE 1955 By Fazal Akbar DMG Probationer at Civil Services Academy Lahore Dated: 15th September, 2011
Basic Facts• The Constituent Assembly amended Sections 9, 10, 10-A, 10-B of the Govt of India Act, 1935 through the Govt of India (Amendment) Act, 1954.• These amendments reduced the powers of Governor Genral.• GG reacted and dissolved the CA on 24th October, 1954.
Continued….• GG issued a proclamation in this regard.• Maulvi Tameez-ud-Din was president of the CA. So he challenged the proclamation in the Sind Chief Court.• He prayed for a writ of Mandamus and a writ of Quo Warranto.
Continued…..• Writ of Mandamus : to restraint respondents from giving effect to the proclamation and from interfering with the exercise of his functions as President of CA.• Writ of Quo Warranto: to oust ministers of the Cabinet (respondents 2-10) appointed by the Governor General.
Govt’s Reply• Section 6 (3) of the Indian Independence Act, 1947 gave the GG of each of the new dominions full powers to assent to any law of the legislature of the dominions.
Continued….• The Sind Chief Court has got no jurisdiction to issue any writ and Section 223-A which was inserted by the CA in the Govt of India Act, 1935 giving writ jurisdiction to the Court, was never assented to by the Governor General of Pakistan.
Situation on Ground• The laws or any amendment made in the Govt of India Act, 1935 were never sent for approval to Governor General from 1947 to 1954. So many laws were in operation and many cases had been decided or were under trial in this regard.
Continued….• Governor General was not having power to dismiss Assembly and to issue Emergency Power Ordinance,1955 under Govt. of India Act, 1935 .• Under the Indian Independence Act,1947, Governor General was bound to give his assent to the laws made by the CA till the new Constitution.
Sind Chief Court’s Decision• Sind Chief Court decided in favour of Maulvi Tamizuddin.• The proclamation issued by the Governor General was invalidated
Judgment of Chief Court• Objection against S.223-A was overruled.• Objection against new S.10 was overruled.• The word “law” in S.6 (3) has reference only to ordinary law and not constitution.• CA was a sovereign body and was not subject to checks and balances.
Judgment Continued….• CA had powers to repeal not only S.6 (3) of Indian Independence Act but the whole of the Act itself.• Rule 15 was properly framed by CA with regard to dissolution.• The Indian Independence Act does not contain express provision for dissolution.
Judgment Continued….• Legislatures are created by statute so statute should provide for their dissolution.• Bracton’s maxim “that which is not otherwise lawful is lawful by necessity.• The argument, that GG was having His majesty’s prerogative to dissolve the CA, was not valid.
Govt’s Appeal• Govt filed an appeal to Federal Court headed by Justice Munir.• Could the Governor General ( a nominee of the Queen) imply his power to deny the laws of the CA ( a representative body)?
Continued….• Has the Constituent Assembly lost its representative mandate in 1954 as it was elected in 1946 ?• The Federal Court decided in favour of the Govt on 21st March, 1955.
Federal Court’s Decision• FC did not go into the question that whether CA was rightly dissolved.• Held that enactments of CA, in the capacity of legislative or constituent body, required the assent of GG.
Decision Continued….• Legislation of CA is a part of Govt of dominion under Section 5.• When CA functions under S.8 (1) of IIA, it acts as a legislature of the dominion within the meaning of S.6 of that Act.
Decision Continued….• Justice A.R Cornelius dissented from the bench members.• He said that the CA be placed above the GG for two reasons:1. That CA was a sovereign body; and2. Statutes under which GG functioned, were under its competence to amend.
Decision Continued….• The CA was not a creation of the British Parliament but was a body created by a supra-legal power to discharge the function of preparing a constitution.• The nature of freedom extended under the IIA, resulted in making free peoples in the dominions of Pakistan and India who enjoyed the advantage of representative institutions on British pattern.