Ivor Jennings
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Ivor Jennings
The Great Betrayal-Ii
In the last of the two-part series, A.G. Noorani concludes Sir Ivor Jennings’ falsification and perfidy to his client, Pakistan, to his own court — the UK.
The Governor-General sent the Law Secretary Sir Edward Snelson to Ceylon — as it was called then — to seek Jennings’ advice.
Maulvi Tamizuddin Khan, president of the Constituent Assembly, had decided to challenge the dissolution in court. His petition was drafted by Syed Sharifuddin Pirzada. Maulvi Saheb’s means were not modest.
McGrath writes, “Jennings agreed to return to Pakistan as an adviser on litigation and also to help prepare a new constitution for the Governor-General. Having access to public funds, Ghulam Mohammad did not have the same financial problem as Tamizuddin Khan and the assembly. He was able to offer Jennings a retainer which amounted to over seven times the annual compensation paid to Pakistan’s Chief Justice of the Federal Court, and in addition Jennings received a generous living allowance during his stay in Pakistan. The money was well-spent by Ghulam Mohammad, for Jennings proved to be the ideal person to mastermind Ghulam Mohammad’s court defence and to justify the assembly’s dissolution.”
McGrath cites Snelson’s letters to Jennings written on November 3 and 6, 1954 in a footnote. This writer has the full text and it makes dismal reading. The letter written on November 3 from Peradeniya records their talk earlier that day when Jennings asked for the queries in writing. The very next day Jennings replied to Snelson. He wanted formal instructions “as one of Her Majesty’s Counsel.” He must be “consulted professionally.” He had been engaged for a fee on the draft Constitution which was complete. This was a new matter. What does it matter if his advice was sought by the president of the assembly “whose instructions I have hitherto observed as to the present status of the assembly.” This surely disqualified him from accepting a brief from the president’s adversary who had dissolved the assembly and consigned the draft which Jennings regarded fit for the wastepaper basket.
Jennings’ desire for “formal instructions” (red: fat fee) drove him to propose a solution “That problem can be solved, if the government of Pakistan so desires, by making a clear distinction between the two transactions I remain bound to advise the Constituent Assembly about the Draft Constitution, but it would not be inconsistent with that duty to accept a further obligation to answer the questions put across to me.”
Those queries were not part of a tutorial which the Law Secretary sought from the academic. He wanted legal help to justify dissolution of the very assembly which had retained Jennings. If Snelson “called me in some innocuous (sic) formula I would get down to work forthwith” – that is, help me save face. Snelson was willing. On November 6, “a formal statement of case for your opinion” followed. Please indicate the fee. “It will be paid forthwith.” The astute – and erudite – Snelson had got the message behind Jennings’ coyness.
On November 10, Jennings replied, “I interpret your letter to mean that the government of Pakistan wants my opinion as soon as possible.”
Jennings said in his letter of November 10 that the Constituent Assembly, which he had served only four months earlier for a fat fee, “had no lawful authority. The Governor-General did not dissolve it: he declared that it could no longer function. He was right because it had no lawful authority… it was usurping a power which it did not possess, and accordingly that it was the duty of the Governor-General to forbid it to meet.”In this, he was being more of a royalist than the King. He made a weird assertion which even Snelson and other legal advisers never made. All this from Jennings who admitted in this very letter that, “I am not sufficiently familiar with the law of Pakistan to advise as to what form the legal proceedings would take.”
But he was very eager to please his clients and went so far as to write in conclusion: “I pay no attention to the order of the Governor-General of India on June 3, 1947. That order had no legal effect except in so far as it set up a Constituent Assembly defined in section 19. Section 19 does not authorise the Governor-General to go on issuing orders creating constituent assemblies. The whole thing can be settled eventually by an Act of the Parliament of the United Kingdom; but for that purpose the Prime Minister must have the support of a legislature.”
He was thus advising the Governor-General and the legislature that he would set up in order to demean them by asking the British Parliament to legislate in respect of Pakistan, which had won its independence only seven years ago. And he did this with crass professional incompetence. For, after the Indian Independence Act, 1947, the British Parliament lost all powers vis-à-vis India and Pakistan. Section 8(2) of the Act empowered the Constituent Assemblies of both countries to repeal that Act itself. What a shocking thing to advise.
Jennings’ detailed papers, The Status of the Constituent Assembly and his Note for H.M. Law on the Validation Bill are in the same vein. He harked back to the times of William and Mary and the flight of James II in 1688.
McGrath sums up his idea: “So strong did Jennings find this line of reasoning that it carried him to the point of asserting that the Queen had even greater power in independent Pakistan than she had in England, because Pakistan had been conquered territory and therefore the Crown was not faced with the traditional limitations placed on it at home. As satisfactory as Jennings found this theory, he was apprehensive about having to rely on the prerogative of the Crown, knowing that the argument contradicted the belief held by Pakistanis that they had won full independence and that the British were no longer involved in their government.
“Nineteen years earlier he had written in his Cabinet Government that conventions were not only followed but they have to be followed!. This was not the advice that he gave to Ghulam Mohammad. Instead, he considered Pakistan’s constitutional convention dealing with the Governor-General’s assent to legislation, but chose to override it with the English constitutional convention of Crown prerogative.”
Tamizuddin Khan was represented in the Sindh High Court by D.N. Pritt, Q.C. S.S. Pirzada and I.I.Chundrigar. Jennings appeared as adviser to Government’s counsel. The Court asked his opinion, unaware of his doings earlier. When he tried to continue, the Assembly’s lawyers demanded the right to cross-examine him on what he said. Rather than being subjected to cross-examination, Jennings refrained from making further statements to the court. As satisfied as Jennings was with the soundness of his position on assent, he was aware that no Governor-General from Jinnah to Ghulam Mohammad had ever raised the question.
The High Court upheld the petition but it was reversed by the Federal Court. Munir, in sheer bad taste, poured scorn on the High Court’s judgment. Jennings had, meanwhile, prepared documents to override its verdict had it gone against the Governor-General.
After the case was over, Jennings made a killing with a book he published in the very next years, Constitutional Problems of Pakistan.
“Although he leaves the impression that his book is another in his long line of objective scholarly works, it actually reflects the memoranda he wrote on behalf of his client, Ghulam Mohammad. As with the efforts of any lawyer serving the interest of his client in an adversarial situation, Jennings avoided facts and theories unfavourable to the client’s case and stressed those which were favourable. Because of his unrivalled reputation as a constitutional scholar, the length and complexity of the courts’ opinions, and the technical nature of the issues involved, Jennings’ interpretation of Tamizuddin has been left unchallenged.”But he was careful not to reproduce his paper on The Status of the Constituent Assembly, and least of all, the letter from the British High Commissioner in Colombo which is being published here for the first time. It reads thus:
“Dear Sir Ivor, Thank you very much. It is most kind of you to offer me a copy of your memorandum about the position in Pakistan and I should indeed be grateful if you would let me have it. It would be of the greatest interest to me personally, and I know that those at the top of the Commonwealth Relations Office in London would be equally interested in seeing the views of an acknowledged expert. I can assure you that we will all respect your confidence and see that no word about it gets back to the Government of Pakistan. With all good wishes, yours sincerely.”
Note that the “offer of a copy” of his confidential memorandum to his client came from Jennings which the envoy gratefully accepted. It was made at the very outset on November 4 and in gross breach of his duty of confidentiality to his clients. He bound the envoy to ensure that his impropriety is kept a secret, and “no word about it gets back to the Government of Pakistan”.
