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The Coup…
The removal of the Constituent Assembly put Pakistan into yet another constitutional crisis. This was an entity entrusted, under the terms of the Independence of India Act of 1947, by the King of England to form the constitution of the Pakistani dominion. With the constituent assembly now gone, the question arose as to who was to carry forward the task of constitution-making in Pakistan? Could a new constituent assembly be legitimately elected to replace the older one? What would be the “ground-rules” for electing such an assembly? Who would set those rules and whether they would be acceptable to all parties?
In the case of the old Constituent Assembly—imperfect as it was—the ground rules were set by the authority of the King of England and were deemed to be equally biased towards all parties. With the two largest provinces already at loggerheads with each other and the smaller provinces complaining about the domination of the larger ones, it would have been difficult to agree upon the ground rules of electing a new constituent assembly in a manner that would not be perceived as biased at its very onset. Even if such an assembly were to get elected and accepted by all parties, where would it start its work? How much of the work of the older Constituent Assembly could it draw upon?


Even more urgent than the formation and representation within the new Constituent Assembly was that of forming a new ministry at the center. Having made a virtual prisoner in the Prime Minister House and having lost the support of the Muslim League as well—who elected Chaudhary Mohammad Ali as its leader—Mohammad Ali Bogra resigned on August 7, 1955. The political machinery—headed by none other than the ailing Governor General himself—instantly went into the all-too-familiar routine of trying to patch together a coalition that could serve its interests. In fact, even before this process could complete, Governor General Ghulam Mohmmad who has been ailing with multiple conditions for a fairly long time took a leave of absence in Oct. 1955 (Ghulam Mohammad: Wikipedia, 2007). He was replace by acting-Governor General Iskander Mirza—another army-man turned bureaucrat who became the first Defense Secretary of Pakistan—who conveniently disposed off his boss to take on the reigns of the country.
Sayeed (1960, p. 424) notes that there were two inter-related issues at stake here, namely, who would be the new prime minister and with which party could the Muslim League coalesce with to form the new Ministry? One prominent opinion at that time was that Huseyn Shaheed Suharwardy of the Awami League Party should become the new Prime Minister. Suharwardy was believed to be one of the more visionary leaders from East Pakistan who rose above the parochial provincialism and could have checked the extreme demands for provincial autonomy in the East. Suharwardy was also a strong leader—a credential that did not go well with the leadership in West Pakistan, especially the Governor General Iskander Mirza who saw a strong Prime Minister as a threat to his own power. Ultimately the choice fell on Chaudhari Mohammad Ali—the recently elected leader of Muslim League—who was to lead with a coalition of the Muslim League with United Front of East Pakistan.
Before we look at Pakistan under Iskander Mirza and Chaudhary Mohammad Ali, we will turn to another very important episode in Pakistan’s such a short existence—one that would change the course of the country for a long time to come—and set legal precedents that would literally cause the death of democracy in Pakistan. Allen McGrath, in “The Destruction of Pakistan’s Democracy” describes the circumstances of the time:
“Thus far Ghulam Mohammad had carried out a coup which was remarkably successful. Part of this success was due to the fact that what he accomplished was not recognized as a coup. Yet he had captured the office of the Prime Minister by forcing Nazimuddin out of office, and he had dismissed the Assembly with the public approval of Bogra, his handpicked successor to Nazimuddin. One man, the Governor-General, now controlled the government. When Tamizuddin Khan announced that he would raise in Court the question of Governor General’s power, Ghulam Mohmmad was faced with the first challenge…” (McGrath, 1996, p. 155)
Indeed, this was the case filed in the Central Court in Sindh (and later the Federal Court in Karachi) by Maulvi Tamizuddin Khan—the President of the now-defunct Constituent Assembly of Pakistan—against the state of Pakistan that signified the only worthwhile resistance against the fast emerging dictatorial rule in Pakistan.
Maulvi Tamizuddin Khan Challenges the Dissolution

Maulvi Tamizuddin Khan—as the second President of the Constituent Assembly (after Jinnah himself)—was a man of “high repute and sincere convictions (Khan, 2001, p. 85). While not a bold man, he nevertheless was willing to start a lonely campaign against a powerful Governor-General who had the coercive forces and financial resources of the state at his disposal (McGrath, 1996, p.156). On 8th November 1954, Tamizuddin Khan challenged the proclamation by Governor General Ghulam Mohammad in the Central Court of Sindh claiming it to be “unconstitutional, illegal, ultra vires (i.e. beyond legal powers), without jurisdiction, inoperative, and void” (Khan, 2001, p.85). He requested that writs be issued against the Governor-General and the recently installed ministers in his cabinet. If granted, the writs would have restrained the Governor General from interfering in the affairs of the Constituent Assembly.
Tamizuddin Khan, in his petition, also claimed that Governor-General’s proclamation that the constitution-making process had broken down, was not true and that the Constituent Assembly was in fact a sovereign body and that there existed no provision in the constitution which would allow the Governor General to dissolve the Assembly (McGrath, 1996, p. 156). The filing of the petition itself amply represented the high-drama that this singular act of defiance for the all-powerful Governor General represented in the circumstances of that time.
Tamizuddin Khan and his lawyers had suspected that the Governor General would use the police and all related machinery at his disposal to stop them from filing the petition in the court. On the morning of the filing, a junior attorney in the law offices of S. S. Pirzada, acting as a decoy, began his journey towards the Court building. Simultaneously, another attorney, carrying the actual petition, and dressed in a fully covered burqa, left the offices from the backdoor towards the Court. The decoy was intercepted by the police and arrested. The burqa clad associate managed to reach the Courts and filed the petition with the Registrar. S. S. Pirzada himself reached the court in a diplomat’s car and retired to the Court’s law library where they thought they would be safe from the police until the case was called to the docket (McGrath, 1996, p.158). Fully knowing the importance of the case, the Chief Justice Sir George Constantine placed the matter on the Court’s calendar for the same day.
Thus began the public trial on the constitutionality of Governor-General’s power to dismiss the first Constituent Assembly of Pakistan.
High profile foreign lawyers were retained from both sides to fight the case. D. M. Pritt—a London Barrister who had represented clients on causes involving government action across the British Commonwealth—was engaged by the Tamizuddin Khan and the Assembly. The Governor General retained Sir Ivor Jennings—a noted British Constitutional lawyer—who had worked on the Pakistani Constitution prior to the dissolution of the Assembly, as the advisor on litigation. The government is said to have paid a hefty sum of money—as much as seven times the annual salary of the Chief Justice of Pakistan—as retainer to Sir Jennings (McGrath, 1996, p.160). With this impeccable credentials and insider view—having helped write the first constitution that the Assembly was deprived of passing—Sir Jennings proved to be just the ideal person to advocate on the Government’s behalf.
Jennings began building his case by drawing upon—in addition to the two pieces of legislation directly relevant to Pakistan, namely, the Government of India Act of 1935, and Indian Independence Act of 1947—British constitutional history and the English Common Law. On the issue of whether or not the Governor General had the power to summon a new Constituent Assembly, he opined that since Pakistan was still a dominion—a status that only the Constituent Assembly could have changed through the promulgation of the Constitution—the British Crown’s prerogatives continued to exist in Pakistan and can be exercised through its agent, the Governor General. He suggested that it was nor merely in the power of the Queen—and, through her, the Governor General—to summon another Assembly but it was her duty to do so (McGrath, 1996, p. 165).

Despite his utmost effort, however, Jennings found it difficult to justify—from a legal standpoint—how the Governor General could have dissolved the Constituent Assembly in the first place. No provision in any constitution or law allowed for such a possibility. He developed a different argument to justify that action. The Governor-General, he argued, was required to assent to every law that was passed by the Constituent Assembly. The Assembly had, in the past, legislated to increase its membership without seeking the assent of the Governor General and so, by changing composition, Jennings argued, the Constituent Assembly had ceased to exist as the body that was ordained to write the constitution. Jennings’ line of defense—although clever—had significant weaknesses. In the absence of any other alternative, however, Jennings decided to put it to test.
The full bench of the Chief Court of Sindh was assembled to hear the case. By denying the government’s attempt to consider the issue of Governor General’s right to assent to every piece of legislation, the court weakened the strongest argument in the Government’s case at the very onset. The Government mainly relied on the prerogative of the Crown to vest the Governor General with the power to dissolve the Assembly. After the oral arguments, the Chief Court unanimously ruled in the favor of Maulvi Tamizuddin Khan.
The Court disallowed the motion that the Governor General’s assent was necessary on every piece of legislation. It also disallowed the notion that the Grown held any prerogative in Pakistan and noted that the Constituent Assembly was indeed the sovereign that did not require any other sovereign’s intervention to legitimize its work. It also noted that the Indian Independence Act of 1947 did not contain any provision to dissolve the assembly. “The right to dissolve the assembly”, it was observed, “had ceased to be a prerogative in England and it was difficult to hold that the prerogative which had ceased in England was revived in Pakistan after 1947” (Khan, 2001, p. 85).
Justice Munir on Federation of Pakistan vs. Maulvi Tamizuddin Khan
An appeal on the Chief Court of Sindh’s opinion was filed by the Government in Federal Court in Rawalpindi. The Government was represented by Sir Edward Diplock Q. C. (later Lord Diplock) and advised by Sir Ivor Jennings. Maulvi Tamizuddin Khan and the Assembly was represented by I. I. Chundrigar. The petitioner could not engage Pritt because of their inability to pay even his expenses (Pritt had offered to work pro-bono) (McGrath, 1996, p. 175). Maulvi Tamizuddin Khan was a man of meager means and having lost his income as the President of the Assembly had little to support the costly litigation. As this battle—“the greatest ever fought in legal history”—went underway, the Federal Court was headed by Chief Justice Mohammad Munir—a man of impeccable legal talents and yet—who would later receive much infamy for several of the most crucial decisions in Pakistan’s early legal history.

The Government’s argument was virtually the same as presented before the Chief Court of Sindh. Jennings assured the Governor General that there was nothing wrong with his argument as long as it was “considered strictly as a legal question” (McGrath, 1996, p. 174). The Governor-General, on the other hand, was willing to go with the decision of the Court as long as it was in his favor. In a memo to the Governor General, Jennings wrote:
“…There is a six-to-four chance of getting a favorable decision but it would not be very surprising if he decision was against the Government. The possibility has been foreseen and the necessary drafts have been prepared to carry out His Excellency’s policies whatever the decision might be. All the documents needed have been drafted and they will be ready for immediate issue once the decision of the Federal Court is known whether it is for or against the Federation.”
The Governor-General was willing to impose emergency in the country should the Federal Court uphold the decision of the Sindh Chief Court. That, as it turned out, was not needed.
With the majority of four-to-one, the Federal Court ruled in the favor of the Governor General by over-turned the ruling by the Sindh Chief Court. In doing so, the Federal Court stayed away from the real issue of constitutionality of the Governor General’s power to dissolve the Constituent Assembly. Instead, it ruled over a technical point that dealt with the jurisdiction of the Sindh Chief Court in hearing Tamizuddin Khan’s petition in the first place. Chief Justice Munir who is sometimes accused of colluding with the Government—and receiving cryptic messages from the Governor General (Khan, 2001, p. 88)—wrote the majority opinion that, while handing the victory to the Governor General, shook the state of Pakistan by its very foundations.
Munir, like Jennings, built his argument on the notion that Pakistan, although an independent dominion, was still a part of the British Commonwealth and hence all British laws (if not expressly indicated otherwise in the Indian Independence Act) and judicial traditions and customs applied. “It does not make the slightest difference if the Queen is called the Queen of Pakistan or the Head of the Commonwealth of which Pakistan is a member” , noted the judgment (McGrath, 1996, p. 180). Every public position, including that of the Governor-General, Commander-in-Chiefs, and Judges were made in the name of the Queen and, “even the court writs which were petitioned for by Tamizuddin Khan would bear the Royal Court of Arms”. (ibid).

The necessity of the Governor-General’s assent to all legislation, as required by the Indian Independence Act, was a requirement that could not be set aside. The constitutional practice in Pakistan, adopted by Jinnah and continued by every Governor-General since, of not requiring that assent did not matter. Hence, Munir concluded, not only was the law that gave the Sindh Chief Court the jurisdiction to issue writs, did not exist but also every piece of legislation passed by the Constituent Assembly since independence and not having received express written assent of the Governor-General was null-and-void. The only dissenting Justice was Justice A. R. Cornelius who wrote the dissenting opinion questioning every piece of argument the majority used to create its opinion.
Justice Munir’s decision in the Federation of Pakistan vs. Maulvi Tamizuddin Khan “in insisting on a formality (Governor-General’s assent) threw the nation into a chaos” (McGrath, 1996, p. 186). Its implications were much more far-reaching than the present case under-consideration for, in a single sweep of pen, it nullified seven years worth of legislation by the Constituent Assembly—as many as forty six Acts on the statute books in all—thus creating a legal vacuum for the state (Khan, 2001, p. 89). Justice Munir has, for the rest of his life, remain defensive and apologetic about this judgment noting that “situations such as these are not for the court to deal with…” and insisting that, lacking the ability to enforce, had the court passed a judgment against the government it would not have been carried out anyway.
To be fair, Munir had insisted before the trial went underway that this case pertained to a political rather than a legal question (he was only partly right!) and that political questions like these must be addressed in political realm through negotiation. He had even tried to broker a deal between the plaintiff and the representatives of the defendant but the latter refused to accept it (McGrath, 1996, p.x). Munir also knew fully well that the judgment he was about to pass is not going to go very well with his fellow-country who would find it shocking that having considered themselves citizens of an independent country for seven long years—and having paid such a heavy price for that independence—they still were, legally, British subjects. A. R. Cornelius, for instance, dissented with the majority for doing otherwise, on the grounds being proposed, would have been “an insult to the independence of Pakistan”. (McGrath, 1996, p.185).

In his book, Highways and Byways, Justice Munir recalls the quagmire that his countrymen faced at the moment:
“The whole attention of the country was revitted on the litigation before the Federal Court which instead of going back to the Quran and Sunnah was going back to England, to the days of Bracton and Lord Mansfield, and was engaged in expounding the traditions of democracy and the Crown’s prerogative in the British Colonies, possessions, and dominions.”
History has found Munir to be errant in that he is accused of ultimately bending over backwards to find a lacuna that could have enabled his friend—the Governor-General—to win the case (Khan, 2001, p.89). Hamid Khan, in his Constitutional and Political History of Pakistan notes:
“It was Justice Munir’s duty to apply the law and to decide correctly regardless of the consequences. The issuance of the writ was his province and not its enforcement. Had Chief Justice [John] Marshall [of United States] been inhibited by considerations like these in issuing the writ in Marbury vs. Madison, the constitutional history of the United States would have been quite different. It is the bold decisions of courts that set the law on the right course. A timid and spineless judiciary leads to a constitutional disaster.” (Khan, 2001, p.89)
A constitutional disaster it was for it still haunts the country after more than five decades. Justice Munir achieved infamy for causing irreparable damage to not only the institution of democratic government in Pakistan but also the judiciary itself. Maulvi Tamizuddin Khan—as the last man standing—is remembered with much reverence by a country that has honored him by naming roads in major cities after him. Such respect, however, is not awarded to Ghulam Mohammad who died a few months later in 1956 leaving behind a country not only without a constitution but also in its worst politico-constitutional crisis since birth.

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