Law Writing

In the Womb of Time

By on January 28, 2019

“There are many events in the womb of time which will be deliver’d.”
Iago, Othello, Act I, Scene III. 369, William Shakespeare

The first few years of a person’s life often have a far-reaching impact on the course of the individual’s existence. The experience of nations can be similar. Dangerous precedents were set early on in the case of Pakistan, some even before she formally came into existence. 
   
When Lord Mountbatten, who himself was seeking joint Governor-Generalship of the two, new, independent dominions, attempted to explain to Mohammad Ali Jinnah that under the dominion constitution of Pakistan, real power would flow from the office of Prime Minister, Jinnah is reported to have said “In Pakistan, I will be the Governor-General, and the Prime Minister will do what I tell him.”1

Being an astute constitutional thinker, Jinnah was well aware, that under the scheme of the received constitution of Pakistan, the Government of India Act 1935 as amended by the Indian independence Act, 1947, the Governor-General, being an unelected official, was excluded from a share of political power. His actions as Governor-General lend credence to the view that he was willing to violate the constitution and constitutional conventions. Consider.   

In his controversial decision to select himself for the office of Governor-General, Jinnah disregarded the valuable Commonwealth constitutional convention that the post be filled by a non-political person. Jinnah was not only an active politician, he was Pakistan’s most influential and prominent.

In addition to assuming the office of the Governor-General, Jinnah also assumed the position of President of the Assembly and that of a Cabinet minister with multiple portfolios2 while retaining the presidency of the Muslim League. It was he, and not Prime Minister Liaquat, who selected the federal cabinet. These decisions were unprecedented within the Commonwealth and also in clear breach of constitutional conventions. Pakistan had, therefore, in Jinnah, a political Governor-General, who controlled the Executive, the Cabinet and the Assembly.

Within the first week of his Governor-Generalship, Jinnah instructed George Cunningham, Governor of the North-West Frontier Province (NWFP), to dismiss the Congress ministry of Khan Sahib. This action is purported to have been taken under Section 51 (5) of the Government of India Act which empowered a Governor-General to issue instructions to a Governor of a province. It is noteworthy that this was an unprecedented use of Section 51 (5) of the Government of India Act. Prior to partition, the British would employ Section 93 of the Government of India Act to dismiss a provincial ministry and extend central control over it. Section 93 of the Government of India Act was specifically omitted by the British at the time of their departure. According to Allen McGrath, who has written a coruscating account of the era,
“The instruction power granted in Section 51(5) of the Government of India Act did not enlarge the powers the Governor-General in provincial affairs. It made the Governor an agent of the Governor-General but did not increase the power of either the Governor as agent or the powers of his principal, the Governor-General. In the absence of Section 93, Jinnah lacked the power, even with the advice of his ministers, to remove the Khan Sahib ministry so long as Khan Sahib enjoyed the confidence of the provincial legislature.”3
Khan Sahib’s Congress ministry did enjoy the confidence of the provincial legislature though it must be remembered that while being Muslim, it had voted against the creation of Pakistan, while the people of the province eventually voted for it.

In April 1948, Section 51 (5) of the Government of India was once again similarly used by Jinnah to dismiss the Sind ministry of M.A. Khuhro through Governor Hussain Hidayatullah. The Khuhro ministry had come into conflict with the central government over the withdrawal of Karachi from Sind and its reconstitution as federal territory following Jinnah’s decision to make Karachi the capital. Officially, however, the grounds for dismissal were stated as “maladministration, gross misconduct and corruption in the discharge of his duties and responsibilities.”4 Khuhro was dismissed, despite the fact that the Sind assembly had only just expressed its confidence in him by having approved his budget. 
 
According to McGrath “Jinnah bestowed on the Governor-Generalship expanded unconstitutional powers which could be and later were used by a successor Governor-General, Ghulam Mohammad, for his own unconstitutional purposes.”5

Such accumulations of personal power soon became the norm and continue till today with Musharraf simultaneously holding multiple offices. 
   
There are those, however, that would argue that the chaotic conditions prevailing at the time can justify departures from constitutional law, convention and constitutional ‘niceties’. Pakistan was created amid bloodshed and its very existence was threatened. Desperate times call for desperate measures.

There are those that would argue that, Jinnah was, after all, the physical embodiment of Pakistan’s search for nationhood. Since the people needed a symbol of their identity and since Jinnah was the symbol of Pakistan, his simultaneous assumption of multiple offices was imperative and not a result of a personal thirst for power. 

Jinnah, however, failed to justify his breaches of convention on the grounds of exceptional circumstances or to exhort a strict adherence to constitutional practice in the future. It would be difficult to find that dangerous precedents were not set early on. In the years ahead, violations of constitutions and its conventions were to become a recurring feature in Pakistan’s Machiavellian politics.   

Numerous constitutional conventions were to be breached in the years to come. Nazimuddin’s appointment as Governor-General following Jinnah’s death in 1948 again breached the convention that a non-political person be appointed to the post of Governor-General6. In 1950, Liaquat, as Prime Minister, assumed the presidency of the League in breach of the convention of keeping the League and government offices separate. Following his assassination, the decision to appoint Nazimuddin (then Governor-General) as Prime Minister was taken without consulting the Constituent Assembly or the Mulsim League Parliamentary Party. Ghulam Mohammad’s contemporaneous appointment as Governor-General once again breached the convention of the office being filled by a non-political person and additionally, the convention of it not being filled by a former civil servant, as Ghulam Muhammad was.  Chief Justice Munir’s close contacts and meetings at various times with Ghulam Mohammad, Iskandar Mirza and Ayub Khan also breached the age-old convention of members of the judiciary remaining at a distance from members of government and the executive.

According to McGrath, “No one raised the point that, unless these formalities or constitutional conventions of the dominion constitution were adhered to, the constitution (would) become a largely meaningless document.”7The author is the Head of Legal, Wholesale Banking at Standard Chartered Bank (Pakistan) Limited. Comments may be directed to editors@counselpakistan.com

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Kamal K. Jabbar
Dubai

Kamal is a Partner with extensive banking, finance, corporate and commercial law experience in the MENA region. He is a barrister from the Honourable Society of Lincoln’s Inn, London, advises on contentious and non-contentious issues and multi-faceted, multi-jurisdictional matters.

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