Dissenting Opinion on Maulvi Tameez-ud-din Vs Federation of Pakistan Case

School of Social Sciences & Humanities (S3H)

Department of Law

Constitutional development
Assignment 1

Submitted by
Name: Arsalan Ahmed Khan
CMS: 367719
 Dissenting Opinion on Maulvi Tameez-ud-din Vs Federation of Pakistan Case

Tameezuddin v. Pakistan, is a landmark case which hold a significant role in setting decisive
precedent in the judicial history of the country. After the partition a constituent assembly was
made. Quaid e Azam Muhammad Ali Jinnah was the first President of the constituent assembly
after which Moluvi Tameez Uddin was appointed as the second President of the constituent
assembly and also prime minister of Pakistan. Governor general of Pakistan Gulam Muhammad
khan dissolved the constituent assembly on 1954. Moluvi Tameez Uddin filed a writ petition
before the High Court Sind to look into the matter. The facts of the case were. Governer general
dissolved the constituent assembly in Oct, 24 1954. Governer general also dissolved the cabinet
of Nizam Uddin in 1953 before dissolution of constituent assembly. The council ministers were
reconstituted after the dissolution. Moulvi Tameez Uddin filed two writ petitions before the High
court Sind namely writ of Mandamus inorder to stop the administration from interfering in the
performance of his powers and writ of Quo Warranto which demanded under which authority
the governor generals council of ministers was holding the offices. The chief court of the sind
declare null and void the step taken by the Gulam Muhammad governor general and assembly
was restored. After which the federation and council of ministers appealed before the federal
court against the decision of the chief court. A federal court ruled that the Constituent Assembly
also fulfilled its legislative duties and determined that all legislation passed required the
governor's approval. Further, the Federal Court found that Section 223-A of the Government of
India Act, 1935 was not law because the Governor-General disagreed. It was also noted that
because Section 223-A is not a law, the federal court does not have jurisdiction to issue writs.
According to the federal court constituent assembly is not sovereign but governor general is a
sovereign authorityi. The most significant point in the judgment of the Federal Court was that it
did not go into the question whether the Constituent Assembly was rightly dissolved by the
governor-General.

Dissenting Opinion

In the case of Tameezuddin Khan v. Pakistan, A.R. Cornelius disagrees with the majority,

arguing that not all laws enacted by the Pakistan Constituent Assembly require Governor-

General approval for validity and application. He gave several reasons to support his dissenting

opinion. First, Justice Cornelius argued that the practice in Pakistan constituted a denial of
 Dissenting Opinion on Maulvi Tameez-ud-din Vs Federation of Pakistan Case

allegiance to British sovereignty, as evidenced by Muhammad Ali Jinnah's refusal to take an oath

in British tradition. , Governor General Ghulam Muhammad, as is traditional, did not convey his

approval of Queen Elizabeth II's succession to the British throne. Justice Cornelius believed that

this showed that Pakistan was governing independently without British influence. Second,

Justice Cornelius argued that the powers of the Constituent Assembly he derived from Section

6(1) of the Indian Independence Act, 1935. However, he points out, this derivative overlooks the

fact that the Constituent Assembly is a creation of the rule of law and has the power to perform

the extralegal function of preparing Pakistan's constitution. He believed, therefore, that the

Constituent Assembly should be placed above the governor-general, the chief executive of the

state. Third, Justice Cornelius argued that the Constituent Assembly was a sovereign body. For

the statutes to which the governor-general must obey fall within the jurisdiction of the

Constituent Assembly, which amends them. Therefore, the Constituent Assembly should be

placed above the Governor-General. Finally, Justice Cornelius pointed out that neither the British

nor the governor-general was a member of the Constituent Assembly. Therefore, he said that the

validity and application of laws made by the Constituent Assembly did not require the approval

of the governor-general. The leading judgment was that of Chief Justice Muhammad Munir with

which three other judges concurred. This judgment in Tamizuddin Khan’s case paved the way

for future justifications by the judiciary of patently arbitrary, malicious and capricious acts of the

executive on hyper technical grounds of self-serving theories or conceptsii.

i
https://thelawstudy.blogspot.com/2015/01/case-maulvi-tameez-ud-din-khan-vs.html
ii
https://www.thelawstudies.org/2017/01/maulvi-tamizuddin-khan-case.html