P L D 1955 FEDERAL COURT 240

(Appellate Jurisdiction)

Present : Muhammad Munir, C. J., A. S. M. Akram, A. R. Cornelius, Muhammad Sharif and S. A.

Rahman, JJ

(1) FEDERATION OF PAKISTAN,

(2) MUHAMMAD ALI,
(3) CHAUDHRI MUHAMMAD ALI,
(4) MAJOR GENERAL ISKANDER MIRZA,
(5) M. A. H. ISPAHANI,
(6) DR. A. M. MALIK,
(7) DR. KHAN SAHIB
(8) GENERAL MUHAMMAD AYUB KHAN,
(9) GHYAS-UD-DIN PAIHAN AND
(l0) MIR GHULAM ALI TALPUR
Appellants
versus

Moulvi TAMIZUDDIN KHAN-Respondents Constitutional Civil Appeal No. 1 of 1955, decided in

Pakistan v, April 1955.

(On appeal from the judgment and order of the Chief Khan Court of Sind at Karachi, dated the 9th
February 1955, in -- Writ Petition No. 43 of 195--- P L D 1955 Sind 96). Indian Independence Act,
1947, Ss. 5. 6 (3), 8 (I), 223-A, C J Assent of Governor-General necessary to all legislations of
Constituent Assembly, including those making provision as to the Constitution of the Dominion un-
der S. 8 (I)-Constituent Assembly acting under S. 8 (I) acts as the "Legislature of the Dominion"-S.
223-A, Government of India Act, 1935, invalid for want of .such assent-Rule 62, Rules of Proce-
dure of Constituent Assembly-Dominion Status-Independent Dominion History fsand back-
ground-Governor-General part of Legislature-King's Prerogative-Constituent Assembly, whether
sovereign-Contemporanea Expositio and argument ab incon venienti-Assent need not be in writ-
ing.

The Constituent Assembly of Pakistan was dissolved by the Governor-General by a Proclamation

dated the 24th of October, 1954 and a re-constituted Council of Ministers was set up. The Presi-
dent of the Constituent Assembly, Moulvi Tamizuddin Khan (respondent) thereupon put in a Writ
Petition (under section 223-A, Government of India Act, 1935) in the Chief Court of Sind against
the Federation of Pakistan and the members of the re-constituted Council of Ministers (appellants)
praying that a writ in the nature of mandamus be issued against the appellants restraining them
from implementing the Proclamation of the 24th October, 1954 and from interfering with the exer-
cise of respondent's functions as President of the Constituent Assembly, and another writ in the
nature of quo warranto with a view to determining the validity of appellants' appointment as mem-
bers of the Council of Minister.

The appellant's reply inter alia was that the dissolution of the Assembly was valid and that the
Chief Court has no jurisdiction to issue the writs, because section 223-A was not validly enacted
for want of assent of the Governor General to the enactment (Government of India (Amendment)
Act, 1954), inserting that section in the Government of India Act, 1935.

The Chief Court issued the writs prayed for, holding that the Acts of the Constituent Assembly,
when it did not function as the Federal Legislature did not require the Governor-General's assent.
The Federation of Pakistan and the re-constituted Council of Ministers appealed to the Federal
Court.
Held, (Per Muhammad Munir, - C. J., A. S. M. Akram, Muhammad Sharif and S. A. Rahman, JJ.
agreeing ; Cornelius, J., contra).-The Constituent Assembly when it functions under subsection (I)
of section 8 of the Indian Independence Act, 1947, acts as the Legislature of the Dominion within
the meaning of section 6 of that Act, and under subsection (3) of the latter section the assent of the
Governor General is necessary to all legislations by the Legislature of the Dominion. Since section
223-A of the Government of India Act under which the Chief Court of Sind assumed jurisdiction to
issue the writs did not receive such assent, it was not yet law, and that therefore that Court had no
jurisdiction to issue the writs.

In view of this conclusion, the Court did not go into the other issues in the case.

The main conclusions supporting the above opinion were :

The position of the Constituent Assembly is that it is the Legislature of the Dominion when it makes
laws for the constitution of the Dominion and the Federal Legislature when it functions under the
limitations imposed upon it by the Government of India Act, 1935.

The Crown is a constituent part of Parliament in the United Kingdom and of all Dominion Legisla-
tures either because it is expressly so stated in the constitutional statutes or because the Crown
appoints the Governor-General who is empowered to give or withhold assent to the legislation of
the Dominion. The same was the position, under the Government of India Act, 1935, i. e. the Gov-
ernor-General, was a part of the Federal Legislature. It is this common restriction that exists on the
Dominion legislation which subsection (3) of section 6, Indian Independence Act, 1947 intended to
enact when it provided that the Governor-General of the Dominion shall have full power to assent
in His Majesty's name (including the power to withhold assent) to the laws of the Legislature of the
Dominion.

The restrictions are illustrative of the constitutional position that assent to the Dominion legislation
by the Crown or its representative is indispensable and has in no instance ever been dispensed
with by the Crown. [ibid]C

The provisions in Constitutions of other Dominions relating to assent do not create in tile Crown or
to its representative a new right, but confirm an existing right and merely provide the manner in
which that right is to be exercised. Thus if the right to withhold assent to Dominion legislation is in-
herent in the . Crown .and the statute that legislates on that right merely says that a bill after it has
been passed by the popularly elected House or Houses shall be presented for - assent to the Gov-
ernor-General, , who will give assent to that bill or withhold it there from, the statute does not cre-
ate the right to withhold assent but merely describes the manner in which that right is to be exer-
cised. Similarly the provisions in the Government of India Act which give to the Governor-General
the right to withhold assent from legislation do not confer on, or create a new right in, the Crown ;
on the contrary, they implicitly recognise such right and regulate the manner in which it is to be ex-
ercised. 1t is for this reason that fiction. of making the Crown a constituent of the legislature is re-
sorted to, because neither the King nor his representative, the Governor-General, is a member of
the legislature like other members: The King or the Governor-General is a part of the Legislature
only in the sense that all bills passed by the Legislature are presented to him, so that he may exer-
cise his right of giving or withholding assent. Thus subsection (3) of section 6 produces the same
result by giving to the Governor-General full power to assent in His Majesty's name to any law of
the Legislature of the Dominion. It makes the Governor-General a constituent part of the legislature
inasmuch as the right, to give assent necessarily includes in it the right to withhold assent. Every
bill must therefore be presented to him to provide him an occasion to exercise that right, and un-
less a bill is so presented a constituent part of the Legislature does not function and the proposed
legislation does not become law. There is, therefore, no distinction between those constitutions
where the Crown is a constituent part of the Legislature and the Legislature of the Dominion of
Pakistan whose functions are being exercised by the Constituent Assembly and to whose legisla-
tion assent is enacted by subsection (3) 'of section 6 as a necessary condition.
"The powers of the Legislature of the Dominion" in subsection (1) of section 8 ' refer back to the
powers of the Legislature of the Dominion defined in section 6, which the Constituent Assembly
was to exercise in its capacity of Legislature of the Dominion.

The provisions of section 6 are applicable to the powers given to the Constituent Assembly by
subsection (1) of section 8 and the restriction as to the Governor-General's assent to legislation by
the Legislature of the Dominion, whatever may be the character of that legislation, is applicable
when the Constituent Assembly exercised the powers of the Legislature of the Dominion under
subsection (1) of section 8. That subsection does not say that the constitution of the Dominion shall
be made by the Constituent Assembly. It assumes that the powers of the Legislature of the Domin-
ion include the power to make provision as to the constitution of the Dominion, declares that those
powers shall be exercisable in the first instance by the Constituent Assembly and directs that refer-
ences in the Act to the Legislature of the Dominion shall be taken as references to the Constituent
Assembly. The plain words of subsection (1) of section 8 that "reference in this Act to ' the Legisla-
ture of the Dominion shall be construed accordingly" have the effect of substituting the 'Constituent
Assembly for the. words "the Legislature of each of the new Dominion" in subsections (1) and (3)
of section 6. That being the position, there can be no escape from the conclusion that the Gover-
nor-General's assent to the laws made by the, Constituent Assembly is an necessary as his assent
to any future Legislature of the Dominion brought into existence by the Constituent Assembly to re-
place itself.

Legislation is the exercise of a high prerogative power and even where it is delegated by statute or
charter to a legislature, in theory it is always subject to assent whether that assent be given by -the
King or by a person nominated by the King. In the British system there is not a single instance to
the contrary. That necessity was enjoined in the case of Pakistan so long as it continued to be a
Dominion, though it was open to that Dominion, if the Governor-General gave assent to a bill of se-
cession to repudiate its Dominion status. The force of the words `full power to assent' would be re-
alised if a situation arose where a bill of secession came up before :the Governor-General for as-
sent. So far as His Majesty was concerned he had given full powers to his Governor-General to as-
sent to any legislation of the Dominion ; but the Governor-General, though he was a representative
of the King, was also the representative of the Dominion in the sense that he was a person in
whom the majority party of the Assembly had confidence. He would, therefore, have no hesitation,
and would also have the requisite authority to give assent. If, however, he withheld assent, his' im-
mediate recall by His Majesty would have been successfully insisted upon by the Assembly and
the assent could then have been obtained from his successor.

The word `law' in subsection (3) of section 6 has been used in a general sense, namely, any pro-
posed legislation which has not as yet received the assent of the Governor General.

The legislation of the, Constituent Assembly under subsection (1) of section, 8 is a part of the gov-
ernment of the Dominion within the meaning of section 5 arid 'the whole scheme of the Govern-
ment of India Act proceeds on the assumption that the Governor-General represents the . Crown
when he assents in Her Majesty's name to the laws, of the Federal Legislature. Therefore it seems
to me to be an impossible proposition to assert that the .making of laws is not a part of the govern-
ment of the Dominion, and that being so no reason whatsoever has been suggested why the mak-
ing of constitutional laws should not be a part of the Government of the Dominion. If the Gover-
nor-General represents the Crown for the purposes of the government of the Dominion when he
gives assent to the laws passed by the Federal Legislature, it must a fortiori follow that he repre-
sents the Crown for the same purpose when he assents to constitutional laws, because in a State
like ours it is impossible to conceive of a Government without there being a constitution.

Rule 62 of the Rules of Procedure of the Constituent Assembly, which provides that when a bill is
passed by - the ,Assembly a copy thereof shall be signed by the President and it shall become law
on being published in the official Gazette of Pakistan under the authority of the President, is a mere
rule of procedure which cannot amend the Constitution Act.
The rule of Contemporanea expositio and argument as inconvenient does not apply to the present
case inasmuch as there is no doubt as to the true meaning of sections 6 and 8 as a whole, and
there is no estoppel.

As for the question whether the Constituent Assembly is a sovereign body it is a mistake to sup-
pose that sovereignty in its larger sense was conferred upon the Constituent Assembly, or that it
could function outside the limits of the Indian Independence Act. The only power given to that As-
sembly was the, power to make laws, constitutional or federal. In the former case, it exercised the
power to make provision as to the constitution of the Dominion which had been included in the
generality of the powers conferred by section 6 on the Legislature of the Dominion, and in the later.
it acted as the Federal Legislature with all the limitations to which that Legislature was subject.
Apart from these powers, it had no other power and it lived in a fool's paradise if it was ever seized
with the notion that it was the sovereign body in the State. It had, of course, legislative sovereignty
as the Legislature of the Dominion but then the Governor-General was a constituent part of the
Legislature. Every. Act passed by it required the Governor General's assent, consistently with the
position that prevails throughout the Dominions,. the Colonies. and the Possessions, settled or
ceded or conquered, where the Crown still retains to itself or has delegated to its representative
the high prerogative right of assenting to bills.

Any attempt to construe the Governor-General's power to withhold assent, as a veto on legislation
proceeds on a misapprehension and cannot be made a ground for the inference that that power is
an infringement of the legislative sovereignty of the Legislature of the Dominion and - thus of the
Constituent Assembly.

We are not concerned with the consequences, however beneficial or disastrous they may be, if the
undoubted legal position was that all legislation by the Legislature of the Dominion under subsec-
tion (3) of section 8 needed the assent of the Governor-General. If the result is disaster, it will
merely be another instance of how thoughtlessly the Constituent Assembly proceeded with its busi-
ness and by assuming for itself the position of an irremovable legislature to what straits it has
brought the country.

The Governor-General is appointed by the King or Queen and represents, him or her for the pur-
poses of the government of the Dominion (section 5 of the Indian Independence Act). The authority
of the representative of the King extends to the exercise of the royal prerogative in so far as it is
applicable to the internal affairs of the Member, State or Province, even without express delega-
tion, subject to any contrary statutory or constitutional provisions.

History and background of Dominion Status discussed from pp. 258to 267.
Incidents of an Independent Dominion indicated from pp. 306 to 313.
Assent need not be in writing.

M. A: Khuhro v. The Federation of Pakistan P L D 1950 Sind 49, dissented from.

Khan Iftikhar Hussain Khan of Mamdot v. The Crown (1951) F C R 24-P L D 1930 F C 15, not ap-
plicable.

Stockdale v. Hansard 1839-9-A ' & E 1, Ndlwana v. Hofmeyer 1937 A D 229 and Campbell v. Hall
XX How-St. Tr. 239 ref.

Per A. S. M. Akram, J.-Reading section 6 (3) and the 1st part of section 8 (1) together the conclu-
sion which I am able to draw is that the Governor-General has full power to give assent to any kind
of law proposed by the Legislature of the Dominion and that the Constituent Assembly which in the
first instance is to make provision -for the constitution of the Dominion is to exercise the power of
the Legislature of the Dominion for that purpose. As a result, the assent of the Governor-General '
becomes necessary for the validity of even constitutional laws. In my opinion the words "full power
to assent" in the context carry with them full liberty to refuse -assent as power' conferred does. not
mean liability imposed or, obligation. created.
In the interpretation of laws and statutes plain words, should, as a rule, be given their plain mean-
ing and a laboured construction should not be put ; upon them to bring into prominence some kind
of a remote signification.

The effect of conferring Dominion Status was that certain rights and liabilities as between the Do-
minion and the United Kingdom came into existence, for instance, if the Dominion by its legislation
negated allegiance to the Crown or severed' connection with it, such a legislation perhaps could
not be considered as legally valid or justified. The expression, "Independent Dominion" has, there-
fore, been purposely used in the Independence Act in order to give to the Dominion a freedom of
choice either to remain or to refuse to remain within the British Commonwealth of Nations.

I am of the view that in the absence of any express or implied provision in any enactment to the
contrary, the assent of the Governor-General is necessary before any constitutional measure
framed under section 8 (1) of the Independence Act, 1947; can pass into law.

Per Cornelius, J. (Contra).-The Indian Independence ,Act, 1947, possessed in several respects the
same character as the Statute of Westminster, 1931, but with one major difference . . . .. . . . the
extent of freedom accorded to the countries which, as Dominions, were to replace the Indian Em-
pire, was in very material degree greater than that which the older Dominions had gained in 1931.
That, in my view, is the circumstance which justifies the application of the special description "Inde-
pendent Dominions" to the two new States which were brought into existence by means of this
highly effective instrument.

The Governor-General owes nothing to the British Sovereign except his warrant of appointment, is-
sued upon the recommendation of the Government of Pakistan. No duty of any kind is prescribed
which he owes to Her Majesty, except that of being "faithful", appearing in the oath which Her
Majesty is pleased to accept. The appointment, by its terms affirms and emphasises that the Gov-
ernor-General's duty, or as it might be termed "allegiance", is to the Constitution, as in existence
from time to time.

The Constituent Assembly was, as a body, not a creation of the British Parliament. It is, in my opin-
ion, to be regarded as a body created by a supra-legal power to discharge the supra-legal function
of preparing a Constitution for Pakistan. Its powers in this respect belonged to itself inherently, by
virtue of its being a body representative of the will of the people in relation to their future mode of
Government. In relation to constitutional provisions, it (Constituent Assembly) exercised the pow-
ers of the British Parliament, which were in that respect, untrammelled by any laws.

With respect to the necessity of assent by the Governor. General to laws of a constitutional nature
passed by the Constituent Assembly, this doubt arose at a very early stage. The Court is indebted
to the learned Advocate-General of Pakistan for the assertion, made on more than one occasion,
that the Late Ministry of -the Government of Pakistan (by which was meant the body of permanent
officials constituting the staff of the Ministry under the Law Minister) had consistently advised the
Minister that -such assent was sine` qua non. On the other hand, the Constituent Assembly had
throughout maintained the view that assent was not necessary, and acting on that view had made
and promulgated a rule, No. 62 in the Rules of the Constituent Assembly, to give formal expression
to that view.

The major limb (Constituent Assembly) of the three great limbs of the autonomous State of Pak-
istan had clearly expressed in 1948 its view on this question, which has now assumed so high an
importance. I place the Constituent Assembly above the Governor-General, the Chief Executive of
the State, for two reasons, firstly that the Constituent Assembly, was a sovereign body, and sec-
ondly because the Statutes under and in accordance with which the Governor- -General was re-
quired to function, were within the competence of the Constituent Assembly to' amend.

The second great limb of the State, namely the Executive 'Government of the Federation, has
never, until after the event of the 24th October 1954, shown any sign, of doubt on this point.
 The Government of Pakistan, composed of the Governor General and his Ministers, , have,
throughout the relevant period, been aware that the Constituent Assembly had formally declared
that its constitutional laws became law under its own Rule 62, without the need of the Gover-
nor-General's assent.

In illustration of the view of the third great limb of the State, His Lordship referred to the three
cases : M. A. Khuhro v. The Federation of Pakistan 1950-51 F C R 24= P L D 1950 F C 15. Khan
Iftikhar Hussain Khan of Mamdot v. The Crown, P L D 1950 Sind 49, ex-Major-General Akbar Khan
and Faiz Ahmad Faiz v. The Crown P L D 1954 F C 87 and observed

For the first seven years of Pakistan's existence, the three great limbs of this new "autonomous
community" exhibited complete harmony of view in regard to the point this Court is now. called
upon to decide.

The Constituent Assembly . . . . . . was a supra-legal body, not acting in its constitution-making ca-
pacity within the Constitution. It was not to be presumed that,' in this capacity, its proceedings and
decision were subject to the qualified negative of the Governor-General, who was a statutory au-
thority, owing existence - to the interim Constitution.

With reference to the argument ab inconvenienti His Lordship observed : -

The present is not a case where a mere "departmental construction", or even a judicial or legisla-
tive construction is put forward, as a caution against lightly disturbing .that which has been ac-
cepted and acted upon as settled law for a period, leading to development of vested rights. The
rule of stare decisis is altogether too small in its content to fit the case. Here, the greatest organs
and agencies of the State have been consciously and unanimously holding a certain belief, and
have been acting upon it, in numerous respects affecting the most fundamental rights of the entire
people, It is difficult to imagine a law which affects so large a proportion of the public as does a law
designed to grant adult suffrage, and to determine the composition of Provincial Legislatures on
that basis. The Delimitation of Constituencies (Adult Franchise) _Act, 1951, was procured by the
Federal Government, was passed by 'the Constituent Assembly, was put into operation by the
combined labours of the Federal and Provincial Governments, and has borne fruit in the shape of
new Legislative Assemblies, which have been, busy ever since passim; .new laws and in other
ways; regulating the lives of the people. It is beyond conception to tabulate all the vested . rights
and interests which have been developed in conseclimice of this law. And there are many other
laws which have produced 'extensive effects, which cannot possibly be ascertained with exact-
ness. These circumstances should; in my opinion, furnish an argument of almost insuperable char-
acter, in favour of. upholdihg what has been the practice hitherto in regard to assent to constitu-
tional laws,

The effect of section 6 (3) read with section 8 (1) and section 5 of the Indian Independence Act,
1947 was stated thus by His Lordship The Constituent Assembly being designed to be a sovereign
body and to exercise sovereign power, including power to alter the Constitution subject to which
the Governor-General was intended to act, it would clearly be inconsistent with that design and
purpose if the "qualified negative" of assent by the Governor-General were imposed upon its con-
stitutional laws. Secondly, it being within the complete power of thg Constituent Assembly to deter-
mine the constitution of the "Legislature of the ~ Dominion", or Union Legislature, and to determine
the scope of its legislative competency as well as the mode in which its laws should be enacted,
the British Parliament could' not affect to prescribe the requirement of assent, as an essential for-
mality, in respect of the laws made by such a Legislature. This would be to usurp the functions of
the Constituent Assembly. To impose such a requirement upon laws of a constitutional nature
made by the Constituent Assembly would be a direct affornt to the position and authority of that
body. Hence the careful use of expressions in section 8,- Indian Independence Act, to indicate that
the necessary powers of legislation should be exercisable by the Constituent Assembly. The words
signify the courtesy owed by one sovereign body to another. There was no direct imposition of obli-
gations, but the need being indicated, it was indicated also that the Constituent Assembly, as previ-
ously agreed upon by the plenipotentiaries in the negotiations between' the United Kingdom Gov-
ernment and the representatives of the Indian people, might fulfil the need.

Section 5, Indian Independence Act, cannot operate to confer any right to grant assent beyond
that conveyed by the relevant words in section 6 (3). Therefore, to draw the right of assent from
section 5 seems to me to be impossible.

In the context, (of section 6 (3) "any law" must mean "any law requiring assent for it to become op-
erative", i.e., any Bill passed by the "Legislature of the Dominion", which under any provision of law
required to be presented to the Governor-General for his assent, and to receive assent before it
could become operative.

The term "Legislature of the Dominion", cannot be, and was not intended to be, regarded as equiv-
alent, at any time, to the Constituent Assembly.

Neither the British Sovereign nor the Governor-General, as such, was a part of the Constituent As-
sembly.

His Lordship arrived at the conclusion

There is nothing in section 6 (3), Indian Independence Act, or in the status of Pakistan as a Domin-
ion which creates the 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.

Per S. A. Rahman, 'J,. (agreeing with the. leading judgment).-After a comparison of 'sections 6 and
8 the inference seems to be irresistible that during the interregnum prior to the promulgation of a
fresh' constitution, . the Constituent Assembly in fact functions as the Legislature of the Dominion.
It is only thus that full meaning can be given to the words 'of subsection (1) of section 8 "references
in this Act to the Legislature of the Dominion shall be construed accordingly" and to the provision
contained in subsection (3) of section 8. The plenary law-making powers of the Legislature of the
Dominion mentioned in section 6 had to be divided into two compartments for transitional period, in
order to keep the legislative machinery of the Government of India Act, 1935, in working order, with
all its limitations, side by side with the enactment of a new Constitution. For the purpose of func-
tioning as the Federal Legislature under the Government of India Act, 1935, the Constituent As-
sembly as the Legislature of the Dominion, should be deemed to have placed the incident limita-
tions on itself, under the provisions of subsection (6) of section 6 read with subsection (3) of sec-
tion 8. I confess I am unable to follow the process of reasoning which seeks to give a different
meaning to "Legislature of the Dominion" occurring in subsection (3) from that possessed by the
expression in other subsections of section 6. The attempt seems to be directed towards investing
the Constituent Assembly with all the powers under section 6, without attracting the restriction (if
restriction it really be) regarding assent, provided for in the same section. The two submissions
made that subsection (3) is confined to the Federal Legislature functioning under the Government
of India Act, 1935, and that the sub section would also be applicable to laws passed by the future
Legislature of the Dominion, appear to me to be mutually contradictory. The word `law' or `laws' -
used in subsection (3) obviously includes laws of a constitutional character as a reading of the
whole of section 6 shows and must clearly mean enactments passed by the Legislature and await-
ing assent of competent authority.

The words "full power" (in section 6 (3) ) amply connote discretion to give or withhold assent, be-
side indicating freedom from extraneous control, in full measure. The presumption is implicit in the
subsection that all such laws shall be submitted to the Governor-General for his assent.

A reading of sections 5 and 6 together, would lead to the inference that henceforth the prerogative
of the Crown as respects assent, would, in the case of each new Dominion, be exercised by the
Governor-General as representing His Majesty.

Op the doctrine of "Departmental Construction" as applied to the interpretation of statutes His Lord-
ship observed A practice in contravention of a constitutional provision'
contained in a statute, can never ; abrogate or repeal a rule of strict law, with which alone the
Courts are concerned.

Faiyaz Ali, Advocate-General of Pakistan and Kenneth Diplock, Q. C. Abdul Haq, Advocate, Fed-
eral Court, with them) instructed by Iftikhar-ud Din, Attorney for Appellants.

L I. Chundrigar and Nazir Ahmad Khan (Mahmud Ali, Sharifuddin Pirzada and Manzar-e-Alam with
them) instructed by M. Siddiq, Attorney for Respondents.
Dates of hearing: March 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, and 21, 1955.