1954-1958
And the imposition of martial law
The Era of Legal Battles
(Federation of Pakistan v. Maulvi Tamizuddin)
The President of the (now dissolved) Constituent Assembly
challenged the dissolution of the Assembly (calling it ultra
vires) by Governor General Ghulam Muhammad, by
lodging an appeal in the Sindh High Court. While the
Sindh High Court supported Tamizuddin the Federal Court
Maulvi (headed by Chief Justice Munir) overturned the decision of
Tamizuddin Khan the provincial court. It stated that the act under which the
decision was taken had not been signed by the Governor
General (making it null and void). The Federal Court Ghulam
upheld the ‘doctrine of necessity’ in this precedent setting Muhammad
case which meant that the de facto government got to rule
simply for the sake of ‘maintaining peace’.
Why does this matter?
1. The argument was made that the Governor General held sovereign authority (comparable to
the Queen)
2. The court opined that royal assent can only be given by the Governor General as Pakistan
was still a dominion and hence not a fully independent country. It gave the decision based
on technical grounds that the section of Government of India Act of 1935 in question was
not applied to this case because the governor general had not assent to it.
3. It undermined Pakistan’s independence.
4. De Facto governments could now point to the decision made in this case to explain illegal
dissolutions (and martial laws).
5. HOWEVER, despite the report running 64 pages there’s no mention as to whether the
Governor-General could dissolve the Constituent Assembly.
Justice A.R. Cornelius on the implications of the verdict:
“It being within the complete power of the Constituent Assembly to determine 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 formality, in respect of the laws made by such a legislature. This would 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 affront to the
position and authority of that body.”
Cont’d
Meaning: The Governor-General as representative of the Queen, could not interfere in the
constituent assembly’s decision making. This is because the British Parliament does not
hold/exercise the The Constituent Assembly was free from pressure by the Crown, and
thus required no ‘assent’ from its representative.
Fun Fact: In the Shahbnama Qudratullah Shahab (Secretary to G.G.) said that his
assistants verbally told him of the G.G. working with Chief Justice Munir during the time
of the Tamizuddin case.
The Legal Vacuum
Because of this precedent it was upheld that all Acts needed assent from the Governor
General in order to be applicable. As many as 46 Acts became invalid. This meant lawyers
started petitioning courts to release political prisoners (notably Jamat-i-Islami and those
caught in the Rawalpindi Conspiracy such as poet Faiz Ahmed Faiz).
The Governor General called a state of ‘grave emergency’ and started making changes
through ordinances (which would last for 6 months). In an act called the Usif Patel v. The
Crown the Federal Court decided that the Governor General had no right to make
provisions for the constitution and that this power rested with the Constituent Assembly
only.
The Court stated:
“This Court held in Maulvi Tamizuddin Khan’s case that the Constituent Assembly was
not a sovereign body. But that did not mean that if the Assembly was not a sovereign body,
the Governor General was…. On principle the power of the Governor-General to legislate
by ordinance is always subject to the control of the federal legislature and he cannot
remove these controls merely by asserting that no federal legislature in law or in fact is in
existence. No such position is contemplated by the INdian Independence Act, or the
Government of India Act, 1935.
The Doctrine of the “Law of Necessity”
The doctrine of necessity is the basis on which extraordinary actions by administrative
authority, which are designed to restore order or uphold fundamental constitutional
principles, are considered to be lawful even if such an action contravenes established
constitution, laws, norms, or conventions.
In a controversial 1954 judgment, Pakistani Chief Justice Muhammad Munir validated the
extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad.
In his judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not
lawful is made lawful by necessity', thereby providing the label that would come to be
attached to the judgment and the doctrine that it was establishing.
“The moral of the entire exercise is that one step taken in the wrong
direction, for whatever reason can hardly be corrected by the subsequent
steps taken in the right direction because one such wrong step lets loose so
much of negative energy and creates so much chaos and confusion that all its
ramifications and consequences cannot be later curtailed, contained or
corrected. The corrective measures required are like putting the genie back
into a bottle.”
- Hamid Khan
The Second Constituent Assembly and the problems of ‘Parity’
After having established that the Governor General could not ‘impose’ a constitution on
the country and that a Constituent Assembly was necessary (Usif Patel v. The Crown) the
G.G. called a meeting of a Constituent Convention of 60 members made of the provincial
assembly.
A.K. Fazlul Haq, leader of the United Front was threatening to boycott the Constituent
Convention because it wasn’t giving East Pakistan populational representation. However,
Prime Minister Bogra struck a deal to reinvigorate the parliamentary institutions of East
Pakistan, and then Fazlul Haq agreed to join. Law Minister Suhrawardy (leader of Awami
League) had already accepted the invitation.
The League Displaced
● The Assembly had 80 members (40 from each ‘unit’)
● Out of 309 seats in the provincial assembly of East Pakistan, the League only won 10
seats in the elections (partly because it didn’t want to contest elections from there) and
only 1 for the central assembly. Prime Minister Bogra (who was also the President of the
All-Pakistan Muslim League) persuaded it to give him a ticket.
● The United Front and Awami League shared the rest of the seats.
● Divisions in the League arose in West Pakistan due to the one unit scheme and Malik
Feroz Khan Noon led a dissident group, whereas the leftist Mian Iftikharuddin kept his
seat.
● Even though the Muslim League won the most seats it did not hold simple majority. It
was thus expected to form a coalition government.
Iskander Mirza
● During this time, Ghulam Muhammad's health began to
deteriorate, and paralysis spread through his whole body,
forcing him to take a 2 month leave of absence in 1955 to
seek treatment in the United Kingdom. Iskander Mirza was
appointed as acting governor-general on 7 August 1955.
● Soon after the appointment, Acting Governor-General Mirza
began having confrontations with Prime Minister Bogra on
regional disparity though both were Bengali and were from
Bengal, and Mirza forced Prime Minister Bogra to resign,
Iskander Mirza
appointing him as the Pakistan Ambassador to the United
States.
Cont’d
● On 12 August 1955, he invited Muhammad Ali, the Finance Minister, to take over the
government as a prime minister. The One Unit policy was passed on 30th September
1955 by the new Prime Minister Chaudhry Muhammad Ali. Mirza dismissed Malik
Ghulam to take over his post on 6 October 1955 (just one day before his acting
capacity ended), supported by the Constituent Assembly's legislators (as Ghulam
Muhammad was seen as despotic).
Coalition Government
1. Chaudhri Muhammad Ali (Former Finance Minister) became the next Prime
Minister, with the United Front lead by A.K. Fazlul Haq (16 seats) and the Muslim
League (25 seats) forming a Coalition government. This meant the Awami League
(12) under Suhrawardy, became the opposition.
2. There were no women in this assembly, and prominent members like Khwaja
Nazimuddin, Sardar Nishtar, Qayyum Khan and Akram Khan had not been elected.
“One Unit to Rule them All…”
There were 3 ministries which needed to be placated:
1. Feroze Khan Noon’s Ministry in Punjab
2. The Rashid ministry in NWFP
3. The Pirzada ministry in Sindh.
Even though Chaudhri Muhammad Ali and Iskander Mirza had
placated these ministers by promising to make them Chief Minister of
the united whole, they chose Dr. Khan Sahib as the Chief Minister of
West Pakistan.
In October 1955, he became the first Chief Minister of West Pakistan
following the consolidation of the provinces and princely states under
the One Unit Scheme. However, after differences with the ruling
Muslim League over the issue of Joint versus Separate Electorates, in
the same month he created the Republican Party with the help of then
Governor-General of Pakistan Iskander Mirza.
The 1956 Constitution
1. The newly constituted Electoral College unanimously elected Mirza as the first
president upon the promulgation of the first set of the Constitution on 23 March
1956. The coalition of the Awami League, the Muslim League, and the Republic
Party endorsed his presidency.
2. Pakistan was declared an ‘Islamic Republic’.
Chaudhri Muhammad Ali Dismissed
1. Due to the growth of the Republican Party in the centre (commanding 22 seats) the
Muslim League.
2. Chaudhri Muhammad Ali, despite being a Leaguer lost the confidence of the League
due to the division of the League into the Republican Party and Muslim League.
3. Chaudhri Muhammad Ali called for a Coalition Parliamentary Party on 27th August,
1956, the Muslim League refused to attend until the Republican Party was disbanded.
4. Chaudhri Muhammad Ali resigned on 8th September, 1956.
Suhrawardy’s Ministry, September 1956-October 1957
● Iskander Mirza invited the opposition leader Hussein Shaheed Suhrawardy to set up a
government.
● He formed a coalition between the Awami League and the Coalition Party.
● On 20th March, 1957 before the budget was passed thirty members of the republican
Party crossed over to the opposition benches (making the League the majority party again
and thus, in a position to elect its own Prime Minister). Iskander Mirza was able to
preserve the Republican majority in the Assembly by using all fair and foul methods.
● Suhrawardy’s own Awami League formed a left wing Bhashani asking for full financial
autonomy from West Pakistan for the East and letting go of the principle of parity.
● Thus he was against dismantling One Unit in the West, and for dismantling it in the East.
● 10th October, 1957 after a request for a vote of confidence was turned down by Mirza,
Suhrawardy was forced to resign.
I.I. Chundrigar’s Ministry, October-December 1957
● I.I. Chundrigar had been the head of the Muslim League during this time.
● He was insistent on topic of separate electorates which no party was willing to settle
on.
● Jawaharlal Nehru stated that during this period of the ousting of Prime Ministers left
and right he did not know who to even talk to.
● “Pakistan changes its Prime Ministers more frequently than I change my pyjamas”-
Nehru.
Noon’s Ministry, December 1957-October 1958
1. Feroze Khan Noon was at this time the Leader of the Republicans in the assembly.
2. He formed a coalition with 5 different political parties: Awami League, National
Awami Party, Krishak Sramik Party, the National Congress, and the Scheduled Caste
Federation.
3. Elections were scheduled to be held during this period. The Republican Party was
full of landlords, on the other hand Bhashani (from the Awami League) was leading a
movement in support of evicted tenants and thousands of landless agricultural
laborers (making him the popular leader). They demanded a change of the Chief
Minister of West Pakistan to Muzaffar Ali Qazilbash. This demand annoyed the
Muslim League which led a campaign against Iskander Mirza.
Martial Law
1. Along with growing pressure on Iskander Mirza, East Pakistan had 4 ministries in 6
months.
2. There was constant bickering between the coalition led by the Krishak Sramik Party and
the Awami League in East Pakistan to set up ministries. In the middle a state of
emergency was also announced under Article 193 of the 1956 Constitution. After that the
Awami League set up its ministry headed by Ata-ur-Rehman.
3. On 20th September 1958, a motion was brought by the Deputy Speaker to the Assembly
that a motion had been passed declaring the Speaker of ‘unsound mind’ (possibly
brought by the Awami League). This led to pandemonium in the East Pakistan Assembly.
Someone threw a paperweight at the Deputy Speaker Shahid Ali’s head and he perished
a few days later.
1. On 6th October 1958 the Khan of Kalat declared secession of Kalat from Pakistan
because of the military bases being established in Balochistan. This revolt was
quashed by the army.
2. In the early morning hours of 8th October, 1958 Iskandar Mirza proclaimed martial
law throughout the country. He had assured the American Ambassador and British
High Commissioner that the new government would be even more ‘pro-West’.
3. He abrogated the Constitution, dismissed the central and provincial governments,
dissolved the National Assembly, and the Provincial Assemblies of the East and West
Pakistan, banned all political parties and postponed the general elections indefinitely.
Noon and his cabinet were put under house arrest.
Reflection Question
What broad problems of statecraft did Pakistan face in the first decade of its existence?
What systemic and practical issues caused these problems?
