Monday, December 26, 2011

Jinnah's powers

Yasser Latif Hamdani makes the claim
There are many myths that are woven around Jinnah’s period as Governor-General of Pakistan, one of which was forwarded by Campbell Johnson who inaccurately claimed in his book Mission With Mountbatten that Jinnah applied for powers under the Ninth Schedule of the Government of India Act 1935 (GOIA 1935). It was the Ninth Schedule of the GOIA 1935 that strengthened the Governor-General and gave him powers to ensure passage of bills in a form that had been recommended by the Governor-General. From July 19, 1947 onwards, the Ninth Schedule was no longer available.
(Also see this on the Cabinet Mission Plan web-site)
Of interest then is this note from Mountbatten about Jinnah's assumption of dictatorial powers:

Transfer of Power Papers excerpts (The Transfer of Power 1942-7, Volume XII covering 8 July - 15 August 1947,  Editors Nicholas Mansergh, Penderel Moon).

Mountbatten to the Earl of Listowel, July 12, 1947
#86, page 127-128

No. 1926-S. I must warn you that Jinnah has told draftsmen who are preparing adaptation orders that he would prefer adaptation order for Pakistan to be based on the Ninth Schedule rather than on Part II of 1935 Act.

2. The effect of this will be apparent to you.  Adaptation based on the Ninth Schedule would give Governor-General the following powers among others.

(1) To appoint members of Government
(2) To settle number of members
(3) to appoint a vice-president
(4) to overrule majority opinion of Government
(5) to frame rules of business.

3. The adaptation order would also have to be based on assumption that Governor-General would ordinarily preside at Cabinet meetings.

4. Thus Governor-General would effectively be his own Prime Minister, but with special powers. This would give Jinnah position of a dictator.

5. Two alternative adaptation orders have been prepared, one on basis of Ninth Schedule (but omitting power to overrule a majority decision), and the other based on Part 2 of the Act.

6. I should be grateful for advice what I should do in event of Jinnah insisting that the adaptation order should be based on the Ninth Schedule, whether with or without the overruling power.

7. I am very doubtful of approving an Order in Council of this kind before August 15th, but there must be some adaptation order, and it would be embarrassing to adopt the alternative against the advice of Moslem League who will certainly support Jinnah.

8. I take it this matter might cause embarrassment in Parliament, and that you will want to consult Cabinet, but I should be grateful for a very early reply as time is short.

The Earl of Listowel to Mr Attlee, India Office, July 15, 1947
#117, page 173-174

Prime Minister, I attach a telegram from the Viceroy in which he says that Jinnah wishes the adaptation of the 1935 Act in respect of Pakistan to be based on the 9th Schedule, i.e. the provisions under which the Executive Council Government at the Centre is set up. I attach a draft reply to this telegram for your consideration.

2. The Viceroy urged us during the drafting of the Bill {Independence of India Act} to do it on the basis that the existing Government of India Act would remain in force in each of the two Dominions. It is as a result of this that Mr. Jinnah is able to do what he now proposes to o. If an accusation is made that we are helping to set up a dictatorship, the answer is that the Constituent Assembly of Pakistan is vested with sovereign legislative powers and can rescind orders of the Governor-General and also make a new Constitution. In practice, however, in view of the dictatorial position which Mr. Jinnah holds in the Muslim League the Pakistan Constituent Assembly is likely to be docile and it may be that Mr. Jinnah will be able to establish himself as a virtual dictator instead of being constitutional Governor-General of the kind customary in British Dominions. This will be an embarrassing situation but it is one which can only come into being if the Pakistan Constituent Assembly so desires and, if that is the position, it is likely to arise in any event.

3. The only alternative to the line taken in reply would be to amend the Bill  to require that adaptation of the Government of India Act should be based on part II of the Act and not on the 9th Schedule. This would, however, be a substantial modification of the Bill and we should have to explain why we were doing it.   It could only be done in the Lords and then at very short notice and probably at the cost of re-arranging the Parliamentary programme.   There is not time to take the matter to the India and Burma Committee as the Lords are taking second reading and all other stages tomorrow afternoon.

The Earl of Listowel to Mountbatten, India Office, July 15, 1947
#122, page 179-180

No. 9108. Your telegram 1926-S. The Bill (Clause 8) says that until other provision is made by Constituent Assembly each of the new Dominions shall be governed as nearly as may be in accordance with Government of India Act. Jinnah is therefore perfectly entitled to proceed under 9th Schedule and has he can do what he pleases by Order on the 16th August, it would seem useless to resist his wishes in regard to adaptation right now. I consider, however, that it would be right and proper to exclude in adaptation Governor-General's power to override his Council under 9th Schedule on ground that this was part of machinery of British control.

2. As regards your paragraphs 6 and 7, therefore, we consider that you should prepare Adaptation Order in form desired by Jinnah but excluding over-riding power of Governor-General whatever his wishes on this point may be. If it is necessary on administrative grounds that this Order be issued before 15th August we consider it should be issued with a statement that it is in the form desired by Muslim League. Otherwise we consider that it should be prepared in readiness and left to be promulgated by Jinnah upon his appointment.

3. It would be inadvisable to make this order until after the Bill has been passed.

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