CSS Pakistan Affairs Notes
Legal Cases and Role of Higher Courts
Maulvi Tamizuddin Khan’s case
In Maulvi Tamizuddin Khan vs. The Federation of Pakistan (PLD 1955 Sind 96) the High Court examined three issues: whether the Governor-general’s assent was needed to validate Assembly actions and whether the absence of assent invalidated them; whether the Governor-General had the right to dissolve the Assembly; and whether the writ petitions fell within the High Court’s jurisdiction. More generally, the High Court was asked to determine the extent of the Assembly’s powers, its relationship to the executive and the judiciary’s authority to limit executive authority. The issue of assent was vital to the Governor-General’s argument because the writ petition was filed under Section 223-A of the 1935 Act. Relying on past judgments and the Governor-General’s actions pursuant to Assembly acts without assent, Chief Justice Constantine quickly dismissed this “novel objection,” noting that “if accepted [it] would upset a consistent course of practice and understanding.” As Justice Muhammad Bakhsh noted, all parties to the dispute had been acting as if assent were unnecessary. The court therefore ruled that assent was not needed for constitution-making; indeed, Justice Bakhsh claimed that the Assembly “could even repeal the whole of 1935 Act.” The Constituent Assembly was a sovereign body, the Governor-General’s authority was limited in the 1935 Act by the Assembly’s constitutive powers, and “both the powers of assent and dissolution are provisions relating to the Constitution.” Therefore, the power of dissolution was limited. Proposing that Commonwealth custom required dissolution only “by express provision in the Constitution,” Chief Justice Constantine concluded that the “purported dissolution is a nullity in law.” Responding to concerns that the Constituent Assembly’s tenure seemed unending, Justice Bakhsh noted that the 1947 Act had specifically withdrawn the Governor-General’s power to dissolve the federal legislature: “If you need the statutory authority to dissolve a body whose life is only five years, your need of that power is a number of times greater when the life is unlimited.”
The High Court decided in favor of legislative supremacy in the constitution-making arena, a decision it viewed as politically progressive. Citing a 1920 ruling of the House of Lords, Justice Bakhsh reiterated a classic statement of the British civil liberties tradition with parliament as protector of individual rights: “The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of parliamentary protection in favor of the subject.”6 Sorry as the performance of the Constituent Assembly might be, its freedom from the Governor-General and the Crown was most important: “The people of India were given the freedom and the independence to frame any Constitution they liked and to do what they liked with their own Constituent Assembly.” Once the High Court ruled unanimously against the Governor-General on the issues of assent and dissolution, it turned to its own authority to overturn his actions. The Sind Court’s strong statement that section 223-A provided grounds for its jurisdiction also provided the grounds for appeal to the Federal Court. Chief Justice Constantine was troubled by jurisdictional questions, however, and asked whether the High Court “can … issue writs where the authority is within its limits, but the subject-matter lies without its limits?” He concluded that the reach of the federal government superseded explicit authority
The Sind Court’s sympathy for Maulvi Tamizuddin petition betrayed its strong bias toward legislative sovereignty, however indeterminate. The court discussed theoretical relationships among the Constituent Assembly, federal legislature and the Governor-General, but did not take up the substance of the Proclamation that had precipitated the Assembly’s institutional crisis. By concluding that the Assembly, its President and the original Cabinet still existed, the court set aside serious political problems raised by amendments to the 1935 Act and the repeal of PRODA – each of which could lead to further conflicts. The High Court was also silent on the problem of the Assembly’s continuing tenure, despite the Governor-General’s claim that the Assembly’s unrepresentativeness made it illegitimate. The court thus set a course for judicial consideration of future constitutional crises. As standard appellate procedure dictated, superior courts almost always refused to consider the factual merits of the cases before them. Determining whether political crisis was or was not imminent was not a responsibility the Sind Court saw for itself. It was concerned with conceptual issues surrounding the establishment and continuance of state institutions, not with the political environment in which they lived and which of course formed the backdrop for its hearings. The High Court quietly stated a preference for caution that would be raised to the level of doctrine by the Federal Court. The institutional consequences of this attitude became apparent as the appeal proceeded.
Maulvi Tamizuddin Khan’s first hearing received strong support for the Assembly and its constitutional duties. The Governor-General disagreed. He was convinced that a political crisis was precipitated by the Assembly and its proposed constitution – equating a diminution of his powers with a national emergency — and with his newly constituted Cabinet challenged the High Court’s authority to review his actions.
The Federation Appeal
The Federal Court heard Maulvi Tamizuddin Khan’s case while the parties to the conflict were jockeying for a non-judicial conclusion to their problems. Parliamentary government in East Pakistan remained suspended, a PRODA case was pending against Chief Minister Mohammed Ayub Khuhro in the Sind High Court, and deposed Sind Chief Minister Pirzada was contesting the Governor-General’s right to remove him from office – conditions that the Governor-General equated with the disintegration of the state. The same central Cabinet ministers involved in political negotiations and the Federation appeal were empowered to decide the fate of the provincial government and were involved in the Sind provincial dispute. During the appeal, Chief Justice Munir suggested that the question presented for judicial determination was primarily political and better resolved among the disputing parties instead of “washing their dirty linen in public.” Although the court was not a party to negotiations, they were discussed in court as background to the legal proceedings and the justices’ interpolations peppered these proceedings.7 Nonetheless, the respective conditions of both parties were never close enough for compromise: Maulvi Tamizuddin Khan wanted to convene a new Constituent Assembly through direct elections on the basis of adult suffrage; other parties proposed new indirect elections for an Assembly to frame a provisional constitution; and the Governor-General demanded general elections and acceptance of his new cabinet and the constitution he was drafting independently.
In his appeal, the Governor-General had a second opportunity to air his views about his role in Pakistan’s government and the Constituent Assembly had another chance to restate its claims of sovereignty. The Federal Court, more sympathetic to the Governor-General than the Sind Court had been, took the occasion to develop a theory of judicial review for Pakistan.
The Federation of Pakistan vs. Moulvi Tamizuddin Khan (PLD 1955 Federal Court 240) pitted two important constitutionalists against one another for the first but certainly not the last time. In his long tenure on the Federal Court, Chief Justice Muhammad Munir, already known for his service on the Lahore High Court, made his mark defending executive authority and figured prominently in constitutional cases for the rest of the decade. The lone dissenter in the appeal, Justice A.R. Cornelius, offered equally forceful alternative notions of popular sovereignty and constitutional government. The appeal to Maulvi Tamizuddin Khan’s case offered a view of Pakistani politics in 1955 and foretold sharp political and jurisprudential disagreements to come.
With its determination that the Governor-General’s assent was required to legalize Assembly actions, the Federal Court dismissed most of the substantive issues raised in the High Court case. The absence of assent to section 223-A of the 1935 Act meant that it was not law; the High Court therefore had no jurisdiction to issue the writs requested by Maulvi Tamizuddin Khan. If the Governor-General did not acquiesce to an abridgement of his powers, no diminution could occur. This opinion doomed the writs and the Assembly’s draft constitution. The court based its judgment on a close reading of the relationship between the English Crown and Dominion government defined in the 1935 Act, a reading that underscored executive powers at the expense of the Assembly’s sovereignty. Because the Governor-General’s presence was the Crown’s limit on the Assembly’s powers, assent was “indispensable” to validate laws.
Justice Cornelius’s dissent highlighted conflicts between the 1935 and 1947 Acts. Like the High Court, Cornelius understood the Governor-general’s responsibility in the context of the country’s independence – “independent dominion” – rather than the more colonial reading offered by the Federal Court majority. Emphasizing the legislature’s exclusive right to limit its own actions, he affirmed the Constituent Assembly’s broad sovereignty – “a body created by a supra-legal power to discharge the supra-legal function of preparing a Constitution for Pakistan” – and noted that the Governor-General’s responsibilities were only “to the Constitution.” He therefore argued that Constituent Assembly sovereignty superseded the Governor-General’s, whose functions were circumscribed by the Assembly’s power to amend the 1935 Act. Cornelius’s opinion directly contradicted the majority. He read the Independence Act as a deliberate expression of legislative autonomy “intended to be absolute.” He derived his concept of legislative supremacy first from the compelling task at hand – framing the constitution and thus making the state concrete – and second from the fact that the Assembly was an elected body, thus linking concepts of legislative powers and popular sovereignty. Despite its dismissal of the Assembly’s challenge, the Federal Court analyzed at length its own views of Pakistan’s future government. These arguments are as important as the decision itself, for they address vital issues of sovereignty, representation and democracy.
Chief Justice Munir noted that the 1947 Independence Act offered no guidance “if the Constituent Assembly did not or was not able to make a constitution, or resigned en bloc, or converted itself into a perpetual legislature.” He suggested that “if a breakdown came, it was for the Dominion itself to reset the tumbled down machinery.” To explain his method for resurrection, he hypothesized a conflict between sovereign government and democracy: “Since sovereignty as applied to states imports the supreme, absolute, uncontrollable power by which a State is governed, and democracy recognizes all ultimate power as resting in the people, it is obvious that in the case of a conflict between the ultimate and legal sovereign, the latter must yield.” This statement suggests that the elected legislature would gain paramount authority, but Munir’s reading of Pakistani politics reversed this stance: “An irremovable legislature is not only a negation of democracy but is the worst calamity that can befall a nation because it tends to perpetuate an oligarchic rule.” Such sentiment, and the poor record of the long-lived Assembly, grounded many of his questions to Advocate-General Fayyaz Ali. The duration of the first Constituent Assembly might have given his argument a certain force, were it not for the fact that the Assembly was dismissed only after it had completed its drafting tasks. In truth, the Governor-General objected to the Assembly’s product, not its membership; the Federal Court, however, allowed this political dispute to move the terms of its considerations away from those framed by the Sind Court. Additionally, Chief Justice Munir did not carry this point to its furthest conclusion. He did not, therefore, take up the parallel question of oligarchy posed by an appointed cabinet acting in concert with an appointed Governor-General for an unspecified period without explicit accountability.
Defining constitutionalism as a limit on the legislature, Munir set the groundwork for executive supremacy and intervention. A constitution, he proposed, organizes and limits the structure of government and “expresses the consent by which the people actually establish the state itself.” His outline was neater than reality affirmed. The social contract to establish the state was neither plain nor presumed; indeed, the absence of a universally accepted, popular ideology helped to cause the country’s divisive social and political tensions and was reflected in the inadequacies of its state institutions.
Moreover, Chief Justice Munir assumed that “consent” was the duty of the executive to articulate, “As Government is the responsibility of the executive in a constitution.” His concept of executive power accompanied a cautionary nod toward legislative limits and the need for “some power competent to dissolve the Assembly.” His decision echoed almost fully the Governor-General’s case and offered a framework for wide executive authority. This was the setting in which the court required the Governor General’s assent to Constituent Assembly actions. While agreeing that the dominion legislature should be able to remove its restrictions, the Chief Justice wanted to restrict the circumstances under which this was possible: assent expressed the hierarchy of powers within government. He was particularly unhappy with the Assembly’s requirement that the Governor-General abide by ministerial advice because it left open the possibility that the Governor-General could be recalled or removed, leaving dominion status uncertain.
The Chief Justice thus wrote his personal predilections into his constitutional analysis, particularly his low opinion of the prevailing political climate: “If the result is disaster, it will merely be another instance of how thoughtlessly the Constituent Assembly proceeded with its business and by assuming for itself the position of an irremovable legislature to what straits it has brought the country.” But Munir’s reasoning was circular. He already assumed strict limits on Assembly powers, claiming that “it lived in a fool’s paradise if it was ever seized with the notion that it was the sovereign body in the State.” His preference for an assertive executive led him to castigate the Assembly and propose that the Governor-General purposefully push his position to the fullest extent: “By withholding assent to an unpopular measure he can create a constitutional crisis of the first magnitude, and though eventually he himself may have to go, he can in appropriate cases rivet the attention of the country to the caprice, cupidity or folly of the Legislature.” Riveting the country’s attention was, of course, precisely what had happened when the Governor-General and the Assembly disputed the question of assent in the first place. Rather than amplify the tensions between the 1935 and 1947 Acts and between the theories of politics which led to the constitutional stalemate, or find a route between them, the Chief Justice came down unabashedly in favor of the Governor-General. The political consequences of this choice, ignored in this judgment, were profound.
Indeed, Munir occasionally interjected his genuine fears were unfettered dissolution not possible. When the Advocate-General asked “what would be the position if it was supposed that the Constituent Assembly got inoculated by Communistic ideas against the wishes of the people,” Justice Munir promptly responded, “Revolution with a capital R,” to which the Advocate General returned, “Dissolution with a capital D, my lord.” This implicit equation of constitutional dissension with political cataclysm, the basis of the Governor-General’s presentation, colored the court’s view of executive authority and thus its ruling.
Facing political conditions that did not fit the expectations of either the 1935 or 1947 Acts, Justices Munir and Cornelius embodied strongly contrary views about the nature of constitutional governance. Munir saw the government and the Governor-General as one and accepted the Governor-General’s actions as a natural response to political exigencies. He assumed that the Governor-General had every right to step between the Assembly and the citizenry when conditions were strained (and when it violated his concept of his office). For Munir, the Assembly’s power to make laws did not define its sovereignty; rather, the Governor-General did so by setting limits to its actions. Cornelius, on the other hand, viewed the Governor-General’s actions as an extraordinary and improper exercise of executive power that restricted Assembly sovereignty. The rules of the Assembly were reflexive; they could not breach interference from the Governor-General without sharply reformulating the character of the Assembly as a whole and the bargain it could strike with its constituents. If sovereignty reposed in the citizenry then the Assembly required autonomy from the executive.
In addition, Justice Cornelius stated explicitly what Chief Justice Munir only hinted, and perhaps tried to understate: that power and authority are not the same. The Governor-General’s powers included the appointment of provincial governors, military chiefs, diplomats and federal court justices – real powers with tangible consequences for the state. Munir minimized the Governor-General’s political weight while simultaneously underlining his legal authority; Cornelius premised his opinion on the Governor-General’s structural importance in the state and the need to make such authority accountable. Noting the Governor-general’s considerable power and correlate duty to protect the country from imminent demise, Cornelius noted that “his action, when purporting to be taken in exercise of this power and duty, would be above the law, and, consequently, not justiciable.” To prescribe a political organization in which the executive was beyond the reach of the courts would be to structure a polity wholly different from that envisioned in either constitutive act, and might well lie beyond the Chief Justice’s concept of democracy as well.
The judicial role was thus of principal concern to the court. Both sides agreed that the court should define the limits of the two Acts and ensure that all institutions abided by that definition. (The government consistently announced that it would abide by the court’s decision, but never indicated its plans were its case not upheld.)8 They both interpreted the judicial role as legal rather than political: the Chief Justice stated unequivocally that “the only issue … is whether the legal power existed or not, and not whether it was properly and rightly exercised, which is a purely political issue.” Munir questioned the judicial role only to criticize the Sind High Court, asking “whether it is a wise exercise of discretion for the judiciary to reinstall in power a deposed government by issuing enforceable writs against a de facto government.” His comment dismissed any distinction between de jure and de facto governance, offering a more explicit nod to judicial prudence than the Sind High Court had expressed. In this sense, the Federal Court may not have wanted to legitimize the Governor-General’s actions but thought it necessary to bow to his powers. Later, this precept seemed to demonstrate the court’s early predilection to support the government of the day.
Both the majority and minority opinions tacitly acknowledged the serious political problems they claimed were outside judicial jurisdiction. For example, Justice Akram noted that without assent “all the convicts and criminals would be released,” and proposed that “it was the responsibility of everyone to ensure that no confusion or chaos was created in the administration.” The High Court judgment, seconded by Justice Cornelius, would have reinstated Maulvi Tamizuddin Khan and the original Assembly and Cabinet, held the Governor-General to the laws the Assembly passed and conferred upon the Assembly the authority to limit the Governor-General. It would have offered a modus operandi between the 1935 and 1947 Acts and among the institutions they created until a constitution was approved. It also could have paved the way for the Assembly’s draft constitution. Whether those institutions would have functioned effectively – whether salvation from dissolution would have sobered the Assembly sufficiently to discipline its work, or provided impetus to compromise on its draft constitution – and whether the proposed 1954 constitution would have been workable, given both its genesis and its assumptions, are questions which could neither be raised nor answered by the court. Surely, however, they were in the minds of its members. By upholding the Assembly dissolution and expanded executive powers, the Federal Court resolved limited legal questions but did not resolve the consuming political crisis. When the Chief Justice said that the court’s duty “is rightly to expound the law in complete indifference to any popular reaction,” he presumed that Governor-General Ghulam Mohammed would try to create a new legislative body, possibly with a new structure and almost certainly with new members.
With this judgment the possibility disappeared that a constitution with limited executive powers would see the light of day, but the Governor-General’s role was still unspecified. During the hearing, the Governor-General’s counsel, Kenneth Diplock, suggested that the Governor-General was now head of state, “a position much more independent than was held by the Governor-General under the Government of India Act” – an interpretation of the 1935 Act that Maulvi Tamizuddin Khan’s counsel, I.I. Chundrigar, energetically contradicted. Such extensive powers would mean that the Governor-General could step into any constitutional breach he perceived without validation from other political or legal authority. Although the dissolution was validated, the court did not explicitly determine to replace representative with appointed government, or legislative with executive institutions.
The appeal left a raft of invalidated laws and no self-evident method for giving them effect. Almost everything the dissolved Constituent Assembly accomplished was rendered moot by the Federal Court’s decision, but neither the court’s ruling nor the Governor-General’s October proclamation offered a way to convene a new legislature, draft a new constitution or give retrospective authority to the Assembly’s work.
To fill the legal vacuum, the Governor-General issued a wide-ranging Emergency Powers Ordinance (IX of 1955) to validate retrospectively the bills passed by the Assembly without his assent, but was prohibited from doing so in Yusuf Patel and 2 others v. the Crown (PLD 1955 FC 387). The court ruled that a 1948 act that extended the Governor-General’s power in the constitution-making arena had itself never been validated, so that revisions of the 1935 Act pursuant to it were also invalid. Its Yusuf Patel judgment removed the legal sting from the Tamizuddin Khan decision. The court placed the Governor-General on notice that his authority, upheld in the Federation appeal, was still limited. At the same time, the Federal Court prohibited the federal legislature from entering the constitutional field. With undisguised frustration it observed that “a more incongruous position in a democratic constitution is difficult to conceive particularly when the legislature itself, which can control the Governor General’s action, is alleged to have been dissolved.” In response, the Governor-General issued yet another proclamation assuming all necessary powers of validation and enforcement to see the country through the continuing pre-constitutional period. It temporarily circumvented the court’s decision by asserting that the validity of the ordinance was immune to legal challenge.
Concurrently, the Governor-General announced plans for a new Constitutional Convention and heralded a solution to the contentious issue of parity among the provinces. With the assistance of Punjab Governor Mushtaq Gurmani, the Governor-General assumed powers to merge the provinces of West Pakistan to create “One Unit” as a balance to populous, and politically argumentative, East Bengal. The government portrayed this move as an administrative convenience and a political imperative to fulfill the “romance of unity” for the country. Bahawalpur, Khairpur and the Baluchistan States Union lost their autonomy, and the provinces of Sind, Punjab and the Frontier were merged into West Pakistan; only the small frontier states of Chitral, Dir and Swat were exempted from the plan. Many politicians had outlined schemes for zonal federations of various sorts for several years, and a similar plan had been percolating in government circles for some time; most other plans, however, had retained the basic structure of existing provinces that One Unit now proposed to erase.
One Unit was structured to give the Governor-General extensive powers in the new constitution that he planned to promulgate by ordinance. He imposed One Unit imperially, disposed of chief ministers who objected to its promulgation, imprisoned politicians who spoke against it and generally outlawed political organizing. The Punjabi dominated bureaucracy fashioned the province of West Pakistan along administrative lines similar to the central government, ruling the province as it had the center. The discord and disorder of provincial autonomy was, in theory, harmonized. During a long public relations campaign to sell the One Unit plan, Prime Minister Mohammed AH castigated the “artificial boundaries” of “provincialism.” Claiming that smaller provinces were not justified politically or administratively, he invoked the rhythms of Jinnah’s plea for non-sectarianism in the first Constituent Assembly, saying “within a short time people will cease to think of themselves as Punjabis, Sindhis, Baluchis or Pathans. Instead they will begin to think of themselves as Pakistanis.” Not everyone was so inclined. Baluch leaders defied the ban on politics by organizing a new party, Ustoman Gal, specifically to oppose One Unit, and renewed the demands for a unified Baluchistan that had simmered since independence. Later, the Khan of Kalat organized widespread demonstrations and an autonomy movement against One Unit that helped to spur the military’s intervention in politics in 1958. Continuing opposition to One Unit led to even greater dissent fifteen years later, culminating in the end of One Unit but also the civil war that led to the separation of East Pakistan from the west.
Majority and minority parties in both provinces nevertheless tried to position themselves for maximum influence in the new constituent body or, like some Frontier politicians, against it. Political scrambling began once the Governor-General issued his order for a new constitutional convention: some parties proposed new methods of representation; others, like the Frontier Awami League and the Khudai Khidmatgars, demanded that the constitutional question of One Unit be popularly validated. The result was predictable confusion. Seeking a route out of the political and legal stalemate, and hoping to impose order upon unruly politicians, the Governor-General took the advice of former Chief Justice Mian Abdur Rashid and requested an advisory opinion from the Federal Court on his plans (Reference by His Excellency the Governor-General, PLD 1955 FC 435, Advisory Jurisdiction)
The court now faced the same problems which first brought Maulvi Tamizuddin Khan’s case to the bench: who should lead the country; on what basis should franchise be organized; how should the institutions of state function; and what role should the judiciary play in answering these questions? The same players acted in this third iteration of the sovereignty dispute but the structure of the Reference gave the court occasion for broader analysis. Its arguments offered a range of views about the relationship between the Pakistani state and the democracy it was trying to establish.
The court’s interpretation of sovereignty was bound equally to general ideas about representation. Here, all the imponderables of state-building were brought to bear on a crucial concept of political life.
In the first instance, representation referred to the relationship of Assembly members to the citizenry. Because they had been elected indirectly from pre-independence provincial assemblies, by 1954 it was not clear to whom the members were responsible. This confusion contributed to their highly developed self-protection, personal identification with the Assembly, and when that body seemed doomed, quick efforts to cast their fates with a new body. Political parties had only vague identities and rules of membership, based as much on personal and economic loyalties as on political principles or ideology. The slightest disagreements led easily to mass defections; new parties rose and fell with little or no effect on the Assembly. Provincial party links to national parties were tenuous, and provincial elections had no direct bearing on the Assembly in its constitutional or legislative capacities. What it meant to be representative was almost impossible to tell from political behavior. These observations were shared, albeit with different interpretations, by Governors-General, Assembly critics and judges alike.
The court’s attention to the idea of representation occurred during a political maelstrom but also in something of a self-imposed political vacuum. It defined Assembly representativeness by highlighting what it was not: it was not an assembly of individuals unfettered by periodic elections, it was not a group of individuals tied only to parties or self-interest, and it was not a club of everlasting longevity. The court was reluctant or perhaps unable to define the concept positively, and ended up not defining it at all. At first glance, the key to its judgments seemed to be a concept of representation; a second look betrayed the term’s emptiness.
In their attitudes toward Assembly representativeness, the High Court and the Federal Court alike presumed a laissez-faire constitutionalism without knowing how to confront an Assembly defined by special interests. The interests themselves – class, religion, ethnicity, ideology, province, party – overlapped to such a degree that accounting for them all would have defeated the most ardent lexicographer. More significantly, to the Federal Court these interests showed no fundamental legitimacy and served no material point: promoting the general welfare was the purpose of the state and therefore the rationale behind constitutional decisions. Buried in their commentaries are two generally incompatible theories of the government: the first vaguely Hobbesian, with individual liberties relinquished to the sovereign as political representative in order to govern the state; the second evoking visions of the common good and thus posed against utilitarianism. Pakistan had been created to solve the problem of Muslim political representation on the subcontinent; now that the state existed, all contributing subsidiary disputes seemed to destroy the original compact. The court took refuge in the presumed impartiality of inherited constitutional instruments without recognizing their deficiencies and structural partialities.
To the courts, a constitution was a self-explanatory life-saver: with a constitution, the state would know what it was and where it could go. To frame a constitution was to legitimize the state, an almost sacred duty that had been frittered away by self-indulgent politicians who did not appreciate the gravity of their task. However, the problems of the state preceded the framing of the constitution, and the court’s attitude – combined with its notion of judicial independence – helped to sink the ship it was trying to float. The Governor-General and his allies, with the final backing of the court, tried to remold the country under One Unit to satisfy administrative and personal political objectives; in so doing, they ignored important national political needs and critical distinctions within the polity. The result was a constitution that could not work.
Did a constitutional theory ground these decisions or their dissents? Yes and no. Although its opinions set the stage for a constitutional set-up that became the 1956 Constitution, the judicial record of the early 1950s does not propound an ideal form of constitution or even clear ideas about the role of a constitution in the state. The courts’ concerns were directed primarily to the process of writing a constitution and the pressures on institutions charged with that task, to the incompatibilities between the political environment and institutional mandates, to the vagaries of politicians and political life. Judicial interest was first in the concepts of politics that were to be embodied in the constitution – representation, sovereignty, autonomy, democracy – and second in the institutional arrangements most likely to affect and be affected by the judiciary – the division and separation of powers within the commonwealth and the state and the recognition of judicial independence. Otherwise divided about specific political issues, the courts above all stood for constitutionalism and judicial independence. They wanted to achieve a constitution when it seemed far from reach, and the Federal Court may thus have been willing to settle for less than might have been realized.
The judiciary’s dissonant opinions show depth and consistency of purpose, if not result. This is important to remember when reading these judgments retrospectively. The Federal Court’s decisions in Tamizuddin Khan’s case and the Governor-General’s Reference crucially affected the conduct of politics and the structure of the Pakistani state.
Many of those effects were negative; at the least, they did not clarify deep-seated inconsistencies and incompatibilities or stem patterns of political behavior detrimental to developing a democracy. Throughout their consideration of these cases – including detailed examination of foreign constitutions – the courts struggled to define precepts and practices appropriate for Pakistan and standards to incorporate into its future constitution. These efforts were circumstantial, incomplete and misguided, but tenaciously wedded to changing concepts and circumstances of independence and democracy. Just how to mediate among political conflicts while establishing a tradition of judicial independence, even before a truly Pakistani constitution was written, was therefore the abiding preoccupation of the federal courts in the 1950s. It is evident in their concerns about their appropriate role, about justifiability and about the presumed immunities of the inherited, British-made independence acts. Clumsy and on occasion unsuccessful, it is clear in their attempts to understand and explain politics in ways that would admit the judicial logics to which they adhered.
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