Monday, December 26, 2011

Court's powers

The Pakistani judiciary granted the Governor-General the power to dissolve the Constituent Assembly.

From here:

The controversial role of judiciary in politics can be traced back to 1955 when Chief Justice Mohammad Munir backed Governor General Ghulam Mohammad's action to dissolve the first  Constitutional Assembly of Pakistan that curtailed the Governor General's powers. On 21 September 1954, the Constituent Assembly amended the Government of India Act. The amendments precluded the Governor General from acting except on the advice of his ministers. All ministers were to be members of the Assembly at the time of their selection and continue to hold office only so long as they retained the confidence of the legislature. [2]

Justice Munir, in Molvi Tamizuddin Khan's case,  declared that the Assembly was not a sovereign body. Munir declared that the Constitutional Assembly had 'lived in a fool's paradise if it was ever seized with the notion that it was the sovereign body of the state.'

Munir was not able to find in the dominion constitution any empowerment of the Governor General which allowed his dissolution of the Constitutional Assembly. But this he dismissed as a 'lacuna' in the Independence Act. He insisted that to understand the role of Pakistan's Governor-General it was necessary to go 'far back in the history and to trace the origin and development of the British Empire itself.'

According to Munir, the independence Jinnah gained  for his country was restricted by the prerogative rights of the English Crown. He adopted the argument made to the court by Lord Diplock (a government attorney) that Pakistan did not become independent in 1947.  It had attained a status like the senior dominions, 'virtually indistinguishable from independence.

The conclusion reached by Justice Cornelius in his dissenting opinion was entirely different. He answered 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 not just a dominion but an independent dominion.

According to Allen McGrath, author of the Destruction of Pakistan's Democracy, when Munir denied the existence of the Assembly's sovereignty, he destroyed Pakistan's existing constitutional basis. He did further harm when he did not indicate where sovereignty resided. He thereby created a vacuum which was an opportunity for Ghulam Mohammed. The absence of a constitutional foundation is a harm which has lived on in Pakistan since Ghulam Mohammad left office.

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