An unnecessary controversy has arisen about the oath of the Quaid-e-Azam as governor-general of Pakistan. Lord Mountbatten tried his best to be the joint governor-general of the two dominions: India and Pakistan. Constitutionally, it would have been unworkable; among other reasons, on the number of issues the cabinets of the two Dominions would have given conflicted advice to him. Quaid-e-Azam, therefore, justified and insisted on a separate governor-general for each dominion. Quaid-e-Azam said that whatever decision he reached, the rule of his life was that he must always consider the interests of his people. At various times of his career he had to pass over those nearest and dearest to him (Transfer of Power, Vol. XI, pp 580-83).
On July 13, 1947, Mr Jinnah said, “Normally, the Governors General would have been appointed on the advice of the Ministers of the Cabinet. But then in the exceptional circumstances it had been arranged that the successor authorities should choose the Governors General and His Majesty accepted that arrangement and, therefore, I want to make it quite clear that the Governors General of Pakistan and Hindustan were chosen by the successor authorities namely the Muslim League and the Congress. Therefore, the Governors General are the chosen of the people and not, as it is ordinarily understood, appointed by the King as was the practice in India in the past. That is rather an important point I wish to make clear.”
Question: Does not the Governor General hold office during His Majesty’s pleasure?
Mr. Jinnah: It is purely a form and nothing but a form; the Governors-General are the chosen of the people that is the reason why I have accepted this honour.
As regards the fact of Pakistan, Mr Jinnah says it will be impossible to have the cross and the crescent on the same flag.
Question: Will the powers of Governor General of Pakistan be the conventional powers of the Dominion Governor General?
Mr Jinnah: It is all there in the wording of the Bill (India Independence Bill). There are going to be adaptations from the Government of India Act 1935.
Question: Does the adaptation refer to the present powers of the Governor General?
Mr Jinnah: To begin with it does. It will depend again upon the adaptation, which is now in the process of being drafted, which may be accepted by each state. The Bill itself says the present system of Government, administrative, legislative and so on, cannot be snapped straight away. Therefore, during the transitional period, certain adaptations have got to be made until the final constitution emerges from the Constitutional Assemblies of the two states. These adaptations are still being hammered out but it is all subject to the supreme powers of the Constituent Assemblies to change anything they like after August 15.
Reference may also be made to Lord Mountbatten’s record of his interviews with Mr Jinnah on July 12, 1947: “Finally, I discussed with him the matter of King’s signature. I told him that I had felt he had acted rather ungraciously at the partition Council at opposing the suggestion which I had put up and which had already been privately agreed to by the Congress leaders, namely the King should continue to sign George R.I.” Mr Jinnah said he was the last person to wish to indicate to his Majesty how he should sign his name and if the King elected to continue to sign his name George R.I. no one in Pakistan would object. If however, it was a question to ask Pakistan to agree to invite the King to continue with a legally incorrect signature, that was another matter and on one which he hoped I would not press him” (Transfer of Power, Vol.XII, pp 121-124).
Quaid-e-Azam took the oath of office of Governor-General of Pakistan on August 15, 1947, which was administered by Sir Abdul Rashid, Chief Justice of the Lahore High Court. It reads as follows: “I do solemnly affirm true faith and allegiance to the Constitution of Pakistan as by law established and I will be faithful to His Majesty (or her Majesty) his heirs and successors in the Office of the Governor-General of Pakistan.”
The oath was the subject of arguments in the appeal of the Federation of Pakistan vs Maulvi Tamizuddin Khan (PLD 1954 F.C.230). Chief Justice Munir having regard to the arguments of Lord Diplock, Counsel for Federation of Pakistan, gave a misleading interpretation to the Indian Independence Act and the oath. However, Mr Justice A R Cornelius in his dissenting judgment held as under:
There are however, two very precise acts of Pakistan’s Governor-General, which cannot be interpreted otherwise than as acts of denial of allegiance to the British Sovereign. The first such act was performed by the first Governor-General of Pakistan, the late Quaid-e-Azam Muhammad Ali Jinnah. When the time came for him to take the oath upon assuming office as Governor-General of Pakistan, he refused to accept the earlier form, which required the Governor-General to bear “true faith and allegiance to His Majesty”, and thereupon, by agreement with the British Sovereign, the oath which he took and which his successors after him have taken requires that he should bear true allegiance to the Constitution and be faithful to His Majesty. Nothing can indicate more clearly that appointment at the hands of the British Sovereign to the office of the Governor-General of Pakistan is accepted by the Governor-General of this country in a form vastly different from that which the Governors-General of the other Dominions are required to accept. In case of these latter Governors-General, they swear “true faith and allegiance to the British Sovereign.” That imports of necessity a disparity of position and acceptance of servitude. The Governor-General of Pakistan, when he swears to be faithful to the British Sovereign cannot be thought to accept any inferiority of position, much less of servitude in the feudal sense appropriate to the conception of royalty. At the highest, it is an undertaking of loyalty on equal terms, and entirely appropriate to the acceptance of the British Sovereign not as a Queen, but as a symbolic Head of the Commonwealth.
In R V Secretary of State for Foreign and Commonwealth Affairs, the Court of Appeal consisting of Lord Denning, Kerrand May LLJ, observed, “That the Canada Bill 1982, is designed to give complete independence to Canada. Dealing with s.7(b) of the Indian Independence Act, 1947, it was held that by these legislative provisions the Crown’s suzerainty of the Indian States was to lapse on the appointed day and with it, inter-alia, all obligations of the Crown in these states and their rulers at the same time. The Appeal committee of the House of Lords Lord Diplock and four law lords heard a petition by the applicants for leave to appeal. Lord Diplock, their Lordships do not grant leave to appeal in this case. Their refusal of appeal is because in their opinion, for the accumulated reasons given in the judgments of the court of appeal, it simply, is not arguable that any obligations of the Crown in respect of Indian people of Canada are still the responsibility of Her Majesty’s Government in the United Kingdom. They are the responsibility of Her Majesty’s Government in Canada (1982(2) AER 118).
It is submitted that the observations are contrary to the arguments advanced by Diplock QC in the Appeal and the Reference before the Federal Court of Pakistan. It is submitted that the judgments of the Court of Appeal and the House of Lords confirm the opinion of Justice A R Cornelius.
The writer is a Senior Advocate