Molvi Tameez-Ud-Din Case

Background:

On 24th October 1954 the constitutional Assembly was dissolved by Governor G.G M and
Molvi Tameez-ud-din president of assembly filed a petition in the Chief Court of Sindh which
gave its verdict in favour of the President of the Assembly. However, the Federla court of
Pakistan over-ruled this decree and the action of the dissolution of the Assembly by
Governer General was held as valid.

VERDICT BY THE CHIEF COURT OF SINDH:

A full bench of chief court of Sindh decided unanimously (4 to 1 majaority) that the
Governer General had no power to dissolve the Constituent Assembly, It was a sovereign
body created for a specific purpose to frame a constitution and and it was to function till
that purpose was completed. Constituent Assembly can only be dissolved by two third
majority of its members.

APPEAL BY FEDERATION OF PAKISTAN

The Federation of Pakistan and certain federal ministers who were affected by the judgment,
went in appeal against the verdict of the Chief court of Sindh. It was argued on behalf of the
federal Government that the Constituent Assembly was rightly dissolved.

DECISION BY THE FEDERAL COURT OF PAKISTAN:

The Federal court of Pakistan heard the counsel of the parties for full fifteen days and gave
its judgment on March 21, 1955. The Federal Court of Pakistan overruled the judgment of
the chief Court of Sindh on a technical point that section 223 of the government of India Act,
1935 under which the chief court has issued the writs was not yet a law. This section 223
was added to the government of India Act, 1935 through an amendment. The constituent
Asembly had passed the amendemnt but was not assented to by the governor General.

Thus the Federal court by majority of 4-1 gave its verdict in favour of the Federal
Government and rejected Molvi Tamizzudin's petition challenging Governor General's
proclamation of the October 24, 1954 by arguing that G.G was a constitutional part of the
legislation and therefore, every act passed by Constituent Assembly required Governor
General's assent.
IMPACT OF THIS DECISION ON THE CONSTITUTION OF PAKISTAN

This judgment harmed the constituent development in Pakistan and paved the way for the
Executive to use the judiciary to justify it's malicious acts. The decision of the federal court
against Tamizudain case opened the Pandora box of illegality which has haunted pakistan
ever since . It made the governor general more stronger than the constituent. It become
necessary for every act assent of governor general without with it did not become law.As
many as forty Acts become invalid for want of assent of the governor general . There was
total confusion and chaos and the governor general issued an ordinance with retrospective
effect to rectify the mistake
 Doctrine of Necessity

The term Doctrine of Necessity is used to describe the legal basis for a controversial 1954 judgment
in which Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of
emergency powers by the then Governor General, Ghulam Muhammad.
In that famous Maulvi Tamizuddin Khan vs. The Federation of Pakistan case, the unconstitutional
dissolution of Pakistans First Constituent Assembly by Governor General Ghulam Mohammad was
challenged by the petitioner. The then Chief Justice of Pakistan, Justice Mohammad Munir gave a
landmark verdict that changed the course of Pakistans History - perhaps forever. Prior to his verdict
and also subsequent to that, Justice Munir noted that the issue before the court was not
merely a legal issue, it was in fact a political one. He suggested that such issues may be best
resolved in the political sphere through negotiation and compromise. In saying so, Justice
Munir was especially concerned about the inability of the Court to enforce a decision. The
court, he noted, does not have any instrument of power to enforce its ruling if it decides to
side with the petitioner (Maulvi Tamizuddin Khan). Indeed, the government - with all the
instruments of power at its disposal - can easily ignore the courts ruling thus putting the
case back to where it belonged - in the domain of the people and their representatives. Of
course, Justice Munir, knowing fully that an anti-government ruling would be entirely
ignored, ultimately sided with the Government thus throwing the country into its worst
constitutional crisis since its creation. The country has never forgiven him for doing
so.However it wasJustice A.R Cornelius who gave his dissenting opinion in the landmark
judgment handed down by the Supreme Court in the Maulvi Tamizuddin case.
 USIF PATELS CASE

An appeal was filed against the governor general for invoking the emergency powers and the
chief justice had to determine the constitutionality of invoking the emergency powers and whether
the governor general could give his assent to legislation retrospectively.

DECISION OF THE CHIEF COURT

The court held that in this case the governor general could not invoke emergency powers because in
doing so he validated certain laws that had been invalid because he had assented to them
previously .Justice Munir also ruled that constitution legislation could not be validated by the
governor general but had to be approved by the legislature . The lack of a constituent assembly did
not transfer the legislature's powers to the governor general .

IMPACT OF USIF Patel's CASE

After this decision of the federal court the country face constitution crisis was greater then when the
governor general had dissolved the constituent assembly. Goondas act of 1952 which was passed by
assembly to control docitary in sind was declared null and void because it did not singn by governor
general. The federal court relying on its previous decision in Tamizudain case.According to H.S
Suhrawardy "The country is faced with a grave situation. There was no federal legislature in existence
competent to validate laws which were declared null and void by the federal court. Even provincial
legislatures were deem to have been illegal since the laws under which those bodies had been
elected were illegal ".In fact the entire legal and administrative system was on the verge of collapse
 GOVERNOR GENERAL'S REFERENCE TO THE FEDERAL COURT.

The federal government send a reference to the federal court to asked their opinion
regarding certain question to full the vacuum after the constitutional crises.

OPINION OF THE COURT

1.The governor general in certain circumstances had the power to dissolve the constituent
assembly .

2. The governor general has during the interim period the power 'under the common law of
civil or state necessity' of retrospectively validating the laws listed in the Schedule to the
Emergency powers ordinance .

3.The new Assembly (formed under the constitution order 1955) would be valid and able to
exercise all power under the Indian Independence Act of 1947.

In his verdict Munir declared it was necessary to go beyond the constituent to what he
claimed was the common law ,to general legal maxims ,and to English historical precedent .
He relied on Broctons maxim "that which is otherwise not lawful is made lawful by necessity
" and the Roman law maxim urged by Ivory Jennings "the will being of the people is supreme
law"

IMPACT ON CONSTITUTION

The judgement gave by court base on the law of necessity, later used by the courts to justify
martial laws and dismissal of constitution.