P L D 1973 Lahore 817 (PLP)

SARDAR MUHAMMAD IQBAL, C.J.

‑This petition under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan has been moved by one Hakim Muhammad Anwar Babri of Lahore city, with a two‑fold prayer that this Court should, by means of a writ of prohibition, restrain the Central Govern ment of Pakistan from announcing the recognition of the so -called "Bangladesh" as a foreign sovereign and State, should also arrest by means of a similar writ all further proceedings which are under contemplation with the said Government to take this matter to the National Assembly of Pakistan.

2. It was stated in the petition that the impending recogui tion of "Bangladesh" as an independent foreign State of the world shall amount to cession of the territory of Pakistan, or, any rate, is tantamount to abandoment or transfer of sovers eighty over East Pakistan by the Government of Pakistan, and this the respondents have no authority to do. In Paragraph 1 of the petition it was alleged that according to some reports in the newspapers the President of Pakistan "has decided to resurrect the issue of the 'recognition' of 'Bangladesh' and that, in this connection, to a recent meeting of the ruling political party at Nathiagali, it has been decided to 'recognise' what is called 'Bangladesh'. A resolution to this effect has also been drafted by the parliamentary party of the ruling party and the Resolution is to be introduced in the current session of the National Assembly in the week beginning 18th June, 1973." Reliance in this behalf was placed on a news item published in the Daily "Nawa‑i‑Waqt" of Lahore, dated the 6th of June 1973, which attributed to Mr. Ghulam Mustafa Jatoi, Central Minister for Political Affairs and Communications, to have said at the Quetta Railway Station that though no date had been fixed for discussion of the question of recognition of "Bangladesh" by the National Assambly, but the question could come under discussion at any time.

3. The petition came up for hearing on the 20th of June 1973 when we pointed out to the learned counsel that the stand taken up by the petitioner in paragraph 1 of his petition about the decision of the Central Government to recognise "Bangladesh" ran counter to the news item on which he had placed reliance. He sought a short adjournment till date to clarify the position. Today, when the petition came up for hearing, learned counsel for the petitioner made a positive statement that the Government of Pakistan have taken a final decision to recognise the so‑called "Bangladesh" as an independent foreign State of the world. When asked as to the proof in support of his submission, learned counsel placed on record an affidavit of the petitioner wherein it is stated that the "Federal Govern ment of Pakistan has already decided to 'Recognise' 'Bangladesh' and that the Federal Government is only looking for an opportune moment to announce the decision of 'recognition'." With the affidavit, he placed certain reports from different newspapers of the country. For facility of reference, relevant parts, dealing with the question of recognition of "Bangladesh" are reproduced: ‑

"President Zulfikar Ali Bhutto, In a "rime' magazine interview published today, said his country would consider recognising Bangladesh provided Pakistani prisoners of war are returned." The Dally "Dawn", February 27, 1973 :-- President Zulfikar All Bhutto has said that Pakistan wants a comprehensive settlement of the Prisoners of War Problem and all other major issues before it can move towards recognition of Bangladesh. The President was discussing the implications of the recognition of Bangladesh with Mr. Hasnain Haykal Edit‑in- Chief of "At‑Ahram' in Rawalpindi recently. . . . . . . . . . . . . . . . . . . . . The President said apart from every other consideration it was in Pakistan s interest to have links again with the Muslin Bengal and these links, he realized, could only come by recognition. They must swallow the bitter pill in order to move on the next stage. Pakistan was therefore prepared to negotiate and come to a settlement with them and the sooner it is done the better." (TheDally "Dawn", March 3, 1973). Replying to a question, Mr. Jatoi said that no date had yet been fixed for discussing the question of recognition of Bangladesh by Pakistan in the current session of the National Assembly. This question may come up at arty time, he added. (The Daily "Dawn", June 16, 1973). Air Marshal (Retd.) Asghar Khan, President of Tehri‑i- Istiqlal, threatened on Thursday that the Tehrlk's workers would 'gherao' the National Assembly if it discussed any Government move to recognise Bangladesh. Addressing a joint meeting of the Pakistan Muslim Students Federation and the Pakistan Youth Force in Lahore on Thursday the Tehrik Chief said that the National Assembly was not competent to discuss the question of the recognition of Bangladesh. He said that not only the National Assembly but the hostels of MNAs and their houses would also be 'gheraoed' if they debated the issue." (The Daily "The PaklstatvTimes", June 22, 1973). A special session of the National Assembly will be summoned for June 29 to consider the matter of recognition of Bangladesh. According to an evening newspaper published from Karachi, a source close to the ruling party has disclosed that this matter will be debated in the Assembly for two days, after which a resolution will be passed. The ruling party is trying to muster maximum support in the matter. The ruling party intends to pass a resolution empowering the President to recognize Bangladesh so that the President may, in the interest of the country, recognize Bangladesh at any appropriate time. It is learnt that the President has met Mir Ghaus Bakhsh Bizinjo and tried to secure help from NAP in this connection. The ruling party apprehends that NAP will not support the Government in the matter. NAP now forms a party of Democratic Front and NAP Government in Baluchistan was undemocratically dismissed. It could not be learnt whether or not the Front will adopt a joint approach in this respect. It is expected that the decision to summon the session of the National Assembly will be announced on the return of the President to the Capital. (English rendering of an Urdu news published in the daily "Jassarat" of June 22, 1973). None of the reports, extracted above, shows that the Government of Pakistan has itself taken a final decision to recognize "Bangladesh" as a sovereign. State of the world. On the other hand, all these reports suggest that the Government of Pakistan is contemplating to take the matter to the National Assembly of Pakistan. In these circumstances since there is no order of the Central Government of Pakistan recognizing "Bangladesh", no writ can issue against the Central Government, at this stage. Judicial review is premature where the Administrative intention though expressed but has not yet come to fruition. This rule is founded upon the principle that an administrative authority which has been entrusted with the determination of administrative or political questions should be free to dispose of them without Interference from the Courts until some legal or constitutional question presents itself for a judicial determination. Even if the administrative authority commits an error at an intermediate stage, there is no reason to presume that it will not correct itself before the proceedings fire completed.

4. Learned counsel next contended that "Bangladesh" could not be recognised under any circumstance and that the Court could, therefore, grant a declaration to that effect. Article 201 of the Interim Constitution does not empower the Courts to grant such a declaration. The judicial power does not extend to the determination of abstract questions. In Role Co. (Australia Proprietary Ltd. v. Commonwealth (1969 Com. S L R 183) it was held: "The true function of judicial power is to investigate, declare and enforce rights and obligation present or past acts, by whatever authority such facts are ascertained or determined, and under law supposed already to exist". The Courts have always declined to anticipate a question of constitutional law in advance of the necessity of deciding it. The Courts abstain even from adjudicat ing claims against a statute on the ground of the same being ultra vires the Constitution, before the statute presently and effectively impinges on his rights.

5. The next question which arises for consideration is whether this Court can, by mean,; of a writ, prohibit the National Assembly of Pakistan to discuss in the House the question whether or not the so‑called Bangladesh be recognised. Firstly, no Resolution of the kind as alleged by the petitioner, has so far been moved in the National Assembly of Pakistan. Secondly, even if the Resolution is moved, it will not be competent under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan to restrain consideration of such a question or resolution in the House on the ground of a supposed or threatened Injury. If the Courts were to arrest by a writ prohibition the proceedings of the National Assembly it shall be tantamount to interfering with the freedom of the Legislature. The Legislature in a democratic State are sovereign and supreme within the sphere of their powers. It is clearly provided in the rules of the Assembly to move a resolution on any question of public importance. The resolution when passed is only an expression of opinion by the legislative body, and does not create a right or impose a liability. The Legislature itself is not bound by its own resolution in any subsequent legislative proceeding for making a law or constitutional provision. Claims based merely on assumed invasion of rights are not enough to warrant judicial Intervention. In Fairchild v. Hughes ((1922) 258 U S 126) it was held that though every citizen possesses the right to require that the Government be administered according to law but this general right alone does not entitle a citizen to institute a suit to secure a determination whether a statute, if passed, will be valid or to obtain an injunction against the passage of the bait. Even In the case of an enactment of the Legislature till such tune it is placed on the statute book, there can be another before the Court upon which it may pronounce its judgment. The Legislature has been entrusted with the duty of legislating and considering the resolution sir the adjournment motion, it must have, in the very nature of things Inherent power of preventing any outside interference with the exercise of its functions. In view of the extraordinary nature of the relief which the petitioner claims from this Court, we asked the learned counsel to produce before us any authority or case in support of his submission that we can step in to arrest a proceeding of the Legislature, the progress of a Bill, or a piece of legislation, before it actually becomes the law of the land and Is challenged in proper proceedings. He has failed to bring any authority or case having a direct bearing can the proposition he has advanced. However, he placed reliance on Attorney-General for New South Wales v. Trethowen and others (1932 A C 527). The facts of that case were that under section 5 of the Colonial Laws Validity Act, 1865, the Legislature of the State hart full power to make laws respecting the constitution, powers and procedure of the Legislature, provided that the laws should have been passed in such "manner and form" as might from time to time be required by any Act of Parliament, Letters Patent, Order in Council, or colonial law in force in the colony. Ire 1902 the Legislature of New South Wales enacted Act No. 32, called the Constitution Act, which consolidated and amended the Constitution of that State. The said Constitution Act was amended by the Constitution (Legislative Council) Amendment Act, 1929, by adding section 7‑A. which providers that no Bill for abolishing the Legislative Council should be presented to the Governor for His Majesty's assent until it had been approved by a majority of the electors voting upon a submission to them made in accordance with the section ; and that the same provision was to apply to a Bill to repeal the section. In 1950 both Houses of the Legislature passed two Bills, one repealing section 7‑A aforementioned, and the other abolishing to the Legislative Council. Neither of the two Bills had been approved in accordance with section 7‑A. On the 10th of December 1930, Trethowan arid another, who were the members of the Legislative Council brought on behalf of themselves and all other members, a suit in the Supreme Court of Now South Wales claiming a declaration that the two Bills could not lawfully be presented to the Governor for assent until approved by the electors in accordance with section 7‑A of the Constitution Act, 1902, as amended. The Supreme Court granted a decree on the 23rd of December 1930 accordingly, and issued injunction restraining the presentation of two Bills until the same had respectively been approved by the electors in accordance with the said section. The High Court of Australia dismissed tae appeal. The matter was taken up to the Privy Council to no avail. A perusal of the judgment of the Privy Council reveals that the only question in that case was whether the repealing Bill which had, in fact, been passed by both the Houses of the Legislature, could be lawfully presented for the Royal assent without having first received the approval of the electors in the prescribed manner and the answer returned was that the Bill was ultra vires section 5 of the Act of 1865 and, therefore, its presentation to the Governor without such approval would be the commission of an unlawful act. Thus, in that case there was a condition precedent in presenting the Bill and since that was not satisfied, the matter became justiciable. The facts of the case its hand are quite different. It is not the case of the petitioner herein that the National Assembly of Pakistan is under any such restraint. He has prayed for a writ to prohibit the National Assembly to consider and discuss a resolution which may, perhaps, be moved In future. In the very mature of things a writ cannot lie to restrain a legislative power. Moreover, the Courts do not enjoy the power of general superintendence and control over the Legislature, nor can the Legislature exercise such a power over the Courts. The Courts, therefore, have no jurisdiction to interfere with the performance of its functions by the Legislature. One organ of the Government cannot, and should not, encroach on the domain of another without danger, and a strict observance of this principle can, to a great extent, ensure the safety of our institutions. In Egerton v. Lord Brownlow and others (1902 A C 484) it was observed: "It is the province of the statesman, and not the lawyer, to discuss and of the Legislature to determine, what is aloe beat for the public good, and to provide for it by proper enactments. It is the province of the Judge to expound the law only: the written from the statutes the unwritten or common law from the decisions of our predeces sors and of our existing Courts, from text‑writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference ; not to speculate upon what Is the best, in his opinion, for the advantage of the community Again in Janson v. Brisfontian Consolidated Mines Limited (1902 A C 484) It was held that "it is the province of the Judiciary only to expound the law as it is and not to speculate upon what is best for the community which is the function purely of the Legislature"

6. For the foregoing reasons, we are clearly of the view that the petitioner has followed a course of action not known to the law and would, therefore, dismiss the petition in limine. K.B.A. Petition dismissed.