Sunday July 14, 2024

70-year history of constitutional crises in Pakistan

By Sabir Shah
April 04, 2023

LAHORE: As yet another Constitutional crisis might well be brewing up like a storm in Pakistan to add to the economic and political turmoil already engulfing the country since former premier Imran Khan’s ouster in April 2022, research shows that such commotions and disorders have hit the nation often since April 1953, when the-then Governor General, Ghulam Mohammad, had dismissed sitting prime minister Khawaja Nazimuddin government with Army Chief General Ayub Khan’s support.

The month of April thus has a special significance in country’s history because chaos and multiple mayhems have greeted the Pakistan during this fourth month of the year in the Georgian Calendar. Annals of history tell us that prime minister Khawaja Nazimuddin was shown the door despite the fact that he was enjoying the support of the Constituent Assembly framing laws at that time. The event is also described by many jurists as Pakistan’s First Constitutional Coup, given that in absence of any Constitution or Charter, Ghulam Muhammad was serving as the representative of the head of state and Queen of Pakistan, Elizabeth II.

Governor General Ghulam Mohammad had said on record that he was driven to the conclusion that the cabinet of Khawaja Nazimuddin “had proved entirely inadequate to grapple with the difficulties facing the country.” It is imperative to note that the dismissed government had won the confidence of the House only a fortnight earlier. On September 21, 1954, the Constituent Assembly amended the Government of India Act 1935 and barred the incumbent Governor-General from acting except on the advice of his ministers.

In retaliation, an infuriated Ghulam Mohammad dissolved the Constituent Assembly itself on October 24, 1954. The assembly, according to archives, had almost finalised the draft of the first-ever Constitution by that time.

Prime Minister Mohammad Ali Bogra, however, was not dismissed and was asked to run the administration with a reconstituted Cabinet, until the elections were held.

Maulvi Tamizuddin, President/Speaker of the Assembly, challenged the dissolution in the Sindh Chief Court, and won the case. The government went to the Federal Court, where the famous judgment was given by the then Chief Justice Muhammad Munir, according to which, Maulvi Tamizuddin had lost the case.

Ghulam Mohammad’s action was condoned by the federal judiciary, particularly by Justice Munir in the famous Federation of Pakistan versus Maulvi Tamizud Din Khan Case.

Maulvi Tamizuddin Khan was the Speaker of Pakistan’s Constituent Assembly from 1948 to 1954 and had also served National Assembly in same capacity between 1962 and 1963. Justice Munir had ruled in favour of the Assembly’s dissolution, observing the House was not a sovereign body. Munir declared that the Constitutional Assembly had “lived in a fool’s paradise if ever seized with the notion that it was the sovereign body of the state.” According to Justice Munir, the independence Jinnah gained for his country was restricted by the prerogative rights of the Crown. He adopted the argument made to the court by a British judge, Lord William Kenneth Diplock, according to which Pakistan did not become independent in 1947; it had just attained a status similar to what the senior Dominions possessed, virtually indistinguishable from independence.

Sir Kenneth Diplock had also appeared before the Supreme Court of Pakistan in the Constituent Assembly case under review. Diplock had viewed that the power of dissolution of the Constituent Assembly could be found in favour of the Governor General from the words of Section 5 of the Indian Independence Act which provided that “the Governor General shall represent His Majesty for the purposes of the government of the Dominion.”

The British judge had argued that that the Governor General of Pakistan was the virtual head of the State and he not only had the power, but also the duty to act, in face of any great national disaster; threatening the country, in such a way as to avert that disaster.

A newspaper article of the time reads: “The conclusion reached by Justice Cornelius in his dissenting opinion was entirely different. He answered Justice Munir’s interpretation of Commonwealth history with his own understanding of the meaning of a dominion.

He maintained that the historical fact was that Pakistan had been created with complete independence, and he pointed to what he believed to be clear differences in the status of the senior dominions and the new dominion of Pakistan.

Cornelius stressed that Pakistan was an independent state. To support Ghulam Mohammad’s use of non-constitutional emergency powers, Munir found it necessary to move beyond the constitution to what he claimed was the common law, to general legal maxims, and to English historical precedent.”