P L D 1973 Supreme Court 563 (PLP)

Paragraph 6 of the Reference reads as follows :‑ "The Government, therefore, finds it necessary to move resolution which would express the opinion of the National Assembly of Pakistan that the Government of Pakistan may accord formal recognition to Bangladesh at a time when, is the judgment of the Government, such recognition would be in the best national interest of the country and would promote a fraternal relationship between the two Muslim communities of the sub‑continent. The resolution would also seek a firm assurance from the National Assembly to take all legal and constitutional measures necessary to this end." This Reference was presented to the Court by the Law Secretary on the 3rd of July 1973. In the covering letter from the President, the Court bas been requested to report its opinion on the question referred before the 7th of July 1973, as the President is proceeding abroad on the 12th of July 1973. Since the Attorney‑General for Pakistan is out of the country, no notice could be served upon him to appear before the Court to take directions as to the persons to be served with notice of the Reference as required by Rule 1 of Order XLI of the Rules of this Court, but the Court directed that notices should be served on the Speaker of the National Assembly and Sardar Shaukat Hayat Khan, who, the Court was informed, teas the Leader of the Opposition in the House. These notices were served on the same day and the Reference was fixed for hearing on the 5th of July 1973. On this date, Mr. Manzoor Qadir entered appearance on behalf of the President of Pakistan, Mr. S. M. War on behalf of the Speaker of the National Assembly, and, Mr. saeed Akhtar on behalf of Sardar Shaukat Hayat Khan. A letter was also received from Sardar Shaukat Hayat Khan dated the 4th of July 1973, acknowledging receipt of the notice but pointing out that he was not the Leader of the Opposition in the National Assembly of Pakistan, although he admitted that he was the "spokesman of the Opposition". He had, it appears, also communicated the contents of the notice and the Reference to the leaders of all the parties comprising the Opposition In addition to the above, Mr. Mahmood Ali Qasuri and Mr. M. Anwar also appeared and claimed to be heard on behalf of some political parties. It was pointed out to them that since no notices had been issued to political parties as such, they could not claim to be heard as of right but we would be prepared to hear one learned counsel on behalf of the Opposition Parties if they could agree to this course. Mr. Mahmood Ali Qasuri also requested that notices should be served on the Lahore High Court Bar. Association and Mr. M. Anwar wanted that Mr. A. K. Brohi should requested to assist the court as amices curiae. These prayers were rejected. Then arguments. It was pointed fact that a report had been Court was closing from then adjournment could be granted. Mr. Manzoor Qadir then opened the case and made some general observations till 11 o'clock when he too requested that the arguments should be taken up on the next day. At his request the hearing was adjourned to the 6th of July 1973. On this date, Mr. Farooq Hassan filed an application on behalf of Maulana Shah Ahmad Noorani, claiming audience after being allowed "adequate time for preparation". His request was refused on the ground that in a reference of this nature no one was strictly a party. Hence, audience could not be claimed as of right. Only those to whom notices had been issued could be heard, others could address the Court only if so permitted by the Court as a matter of courtesy. Again, it was pointed out that the Court would be prepared to bear one learned counsel on behalf of all the Opposition Parties provided they confined their arguments to purely legal questions and did not bring in political issues before the Court. At this stage, Mr. Mahmood Ali Qasuri asked for at least 15 days' time to prepare the case. He also maintained that in Reference No. 1 of 1955, Mr. Hamidul Haq Chaudhry had been heard on behalf of various political parties. A reference to the printed report of the said Reference, however, shows that Mr. Hamidul Haq Chaudhry alone was heard for the United Front Parliamentary Party of East Bengal Legislative Assembly, which consisted of a number of other component political parties. Mr. Mahmood Ali Qasuri was informed that this Court was also prepared to follow the same procedure and to give him the same concession but it was unable to grant any adjournment. At this, Mr. Mahmood Ali Qasuri, dr. Mr. Anwsr, Mr. Farooq Hassan withdrew from the Court saying that unless they were given the time prayed for they would not be in a position to render any assistance to the Court. Mr. Saeed Akhtar, representing Sardar Shaukat Hayat Khan also followed their example. Mr. Manzoor Qadir has drawn our attention to the provi sions of sub‑clause (a) of clause (2) of Article 2 of the Interim, Constitution which reads as follows :‑ "(2) The Republic shall be a Federation wherein shall be united‑ (a) The Provinces as they existed immediately before the commencing day;". He very frankly conceded that reading this along with the, provisions of the Provisional Constitution Order of the 4th of April 1969, and the Constitution of 1962 it may well be argued that by implication the framers of the Interim Constitution accepted the Province of East Pakistan to be a constituent part of the federation referred to in the Interim Constitution. The said provisions were, however, equally susceptible of another interpretation. The words "the Provinces as they existed immediately before the commencing day", could well have reference to the actual state of affairs prevailing just before the commencing day, viz., the 21st of April 1972. He also referred to clause (3) of Article 1 of the Constitution of the Islamic Republic of Pakistan adopted on the 17th of April 1973, which is to come into force on the 14th of August 1973. This clause reads as follows: ‑ "(3) The Constitution shall be appropriately amended so as to enable the people of the Province of East Pakistan, as and when foreign aggression in that Province and its effects are eliminated, to be represented in the affairs of the Federation." Although this contains an express reference to the Province of East Pakistan and to the possibility of the people of that Province being represented in the affairs of the Federation after the elimination of the foreign aggression in that Province, yet the learned counsel maintains that the operative provisions of the said Constitution do not apply of their own force to that Province. In order to make them applicable appropriate amendments will have necessarily to be made in the said Constitution and until that is done it cannot be said that this a Constitution also for the Province of East Pakistan. For these reasons the learned counsel was of the view that it could equally plausibly be urged that notwithstanding such references, the recognition of what is now called Bangladesh was not prohibited by anything contained either in the Interim Constitution the Constitution of 1973. Neither of the above‑mentioned provisions was according to him, a binding or enforcible provision on the basis of which these act of recognition could be validly assailed. Having said this, however, the learned counsel for the President did not press this argument any further; nor did he wish to enter into the question whether a State could recognize as an independent sovereign legal entity, any portion of its territories which it had either expressly or impliedly accepted as its integral part. He, on the other hand, requested the Court to confine itself to the scope of the Reference now before it and not to launch upon any academic or wholly premature exercise of examining the validity of either the recognition or the contemplated legislative measures or amendments to the Constitution if any. According to him, the only question now before this Court was as to whether a resolution of the type suggested In Para. of the Reference could competently be passed by the National Assembly. The question of the vires of future amendments, if any, or the validity of executive acts to be performed under those amendments for the recognition of Bangladesh was not in issue at the present juncture. The recognition of a State, it is contended, is a purely executive act within the exclusive competence of the executive Government. As pointed out by Willoughby in his book `On The Constitution of the United States', Vol. 1, 2nd Edition, p. 536 "The recognition of the sovereignty and Independence of a foreign Government are political acts, not subject to judicial review and are performed by the President. At times the claim has been made that this power of recognition is one to be exercised at the dictation of Congress, but precedents are against the claim . . . . . . it is the proper province of the Executive to refuse to be guided by a resolution on the part of the Legislature if, in his judgment, to do so will be unwise. The Legislature may express its wishes or opinions, but may not command. " What is sought to be done at the present moment, therefore, by the executive is merely to ascertain the wish of the National Assembly and tae resolution proposed even if passed, will be no more than a mere wish or a mere expression of opinion having no binding force or legal efficacy. It will not and cannot alter either the law or the Constitution, for the National. Assembly under the Interim Constitution is not only no longer competent to amend the permanent Constitution by reason of the provisions of clause (2) of Article 95 of the Interim Constitution, but is also not competent to pass a law by its resolution alone. At the present moment, the organs necessary for amending the Constitution of 1973 have also not yet come into being. Therefore, the resolution suggested in the Reference even if passed will be nothing more than a mere expression of opinion by the Members of the House binding no one. In support of this contention, reference ha3 also been made to the opinion of Lord Denman, C. J., in the case of Rockdale v. Hansard (1) as quoted in Keir and Lawson's 'Cases in Constitutional Law', 4th Edition, p. 127 :‑ "That sovereign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary the resolution of any one of them cannot alter the law or place any one beyond its control." The Legislature under the Interim Constitution consists of the President and the National Assembly. To pass a legislative measure it has to act in a certain prescribed manner. Unless this procedure is followed, i.e., the bill is presented, it goes through the first reading, the committee stage, the second reading and the third reading and then receives the assent of the President, it cannot become a legislative enactment. The mere passing of the resolution, therefore, cannot possibly have the same effect. A.V. Dicey, in his book on 'The Law of the Constitution', 10th Edition, at p. 54, is of the same opinion for he states :‑ "The House of Commons, at any rate, has from time to time appeared to claim for resolutions of the House, something like legal authority. That this pretension cannot be supported is certain, but there exists some difficulty in defining with precision the exact effect which the Courts concede to a resolution of either House." The difficulty alluded to arises from the fact that the House of Commons though not a Court of Justice has the exclusive privilege of regulating its own internal proceedings and, in exercise of that power, it has often claimed that it has the right to protect itself by committing for contempt any person who offers any affront to the House. The learned author 5s, however, clear that the resolution of neither the House of Commons nor the House of Lords is a law. This Court also in the case of Superintendent, Land Customs, Torkhom v. Zewar Khan and 2 others (1) at p. 509 expressed the following view :‑ "Both under the International law as well as the Municipal Law, therefore, the tribal territories became part and parcel of Pakistan and were duly recognised as such by the United Kingdom and the member Nations of the South East Asia Treaty Organization. The Dominion of Pakistan through its Constitutional Assembly also formally accepted it as such. In the circumstances it was not for the Municipal Courts to hold otherwise. It is important to remember that in such matters of a political nature, namely; accession or cession of territory it is not for the Courts to take a different view. The executive authority of the State has in the exercise of its Sovereign power the right to say as to which territory it has recognised as a part of its State and the Courts are bound to accept this position." In the same judgment, this Court further pointed out than the expression "Act of State" in its wider sense denotes "those acts of the Crown which are done in the exercise of its prerogative powers in the sphere of foreign affairs, such as, the making of war or peace, the accession or cession of territory, the recognition of a new State or the new Government of an old State" and that Acts of the latter kind are not justiciable 1n the Municipal Courts. If the act of recognition is exclusively an executive act and the true legal position of a resolution of the House is that it is a mere expression of a wish then the next question that arises is, whether there is any legal impediment to the House passing such a resolution?-- According to the Interim Constitution itself, there are certain resolutions, which are specifically contemplated, as for example resolutions for the impeachment of a President or a Vice President and resolutions for the disapproval of Ordinances and/or proclamations, but the House, it appears, possesses the power? also of passing resolutions not mentioned in the Constitution Indeed, the Rules of Procedure and Conduct of Business in the National Assembly 1972, framed in exercise of the powers given by Article 91 of the Interim Constitution, defines a 'resolution ‑in rule 2 as meaning "a motion for the purpose of discussing and expressing as opinion on a matter of general public interest and includes a resolution specified in the Constitution", Chapter IX lays down the procedure for moving such resolutions not specified in the Constitution and rule 86 says that "subject to the provisions of these Rules, any member may move resolution relating to a matter of general public interest Rule 88 prescribes the form of the resolution and indicates as to what should be the contents of the resolution. It is significant that sub‑rule (PLD 1969 SC 458) of this rule also clearly provides that "a resolution shall be in the form of a declaration of opinion by the Assembly". Under these Rules of Business, therefore, any member has the right of moving any resolution he likes provided it relates to a matter of general public interest. This is the only limitation as to the subject‑matter of the resolution but it has to be in the form of a declaration of opinion by the Assembly. Can it then have any higher efficacy? Rule 90 gives to the Speaker the power to disallow any resolution or any part of it which, in his opinion, is not in compliance with any of the rules or is in abuse of the right of moving a resolution, or is calculated to obstruct or prejudicially affect the procedure of the Assembly, or if its discussion is detrimental to the public interest. In the light of all these provisions it cannot, in our opinion be said that there is any legal bar to the moving of a resolution of the kind contemplated in Para. 6 of the Reference. This is a part of the legitimate functions of the National Assembly and, therefore, the passing of such a resolution cannot also be questioned by a Court by reason of the provisions of Article 93 of the Interim Constitution. Such a resolution would be a matter relating to the internal proceedings of the House, which as held by this Court, in the cases of Pakistan v. Ahmad Saeed Kirmani (P L D 1958 S C (Pak.) 397) and Lt.‑Col. Farzand Ali v. The Province of West Pakistan (P L D 1970 S C 99) are immune from challenge in the Courts. The learned counsel has also divided the resolution in two parts. The first part, he says, relates to according approval to the Government of Pakistan's proposed intention of formally recognising Bangladesh at a time when, in the judgment of that Government, such recognition would be in the best national interest of the country and would promote the fraternal relationships between the two Muslim communities of this sub‑continent. This part, as already pointed out, is a bare expression of opinion and has no legal consequence at all apart from giving support in advance to the executive Govern ment in regard to its proposal regarding the recognition of Bangladesh. The second part of the resolution, according to the learned counsel, which seeks to obtain a firm assurance from the National Assembly to take all legal and Constitutional measures necessary to that end, is also nothing more than a pious wish, for, according to him, acts of one Parliament cannot bind future Parliaments. In support of this argument he has cited an observation of Blackstone to the effect that "acts of Parlia ment, derogatory from the power of subsequent Parliaments, bind not" (vide Cooley's 'Constitutional Limitations', Vol. I, 8th Edition, p, 247). Mr. S. M. Zafar, appearing for the Speaker, supports the contentions of Mr. Manzoor Qadir and he too maintains that it is the right of every member to move any resolution he likes on the floor of the House provided it concerns a matter of public interest and it is the right of the Assembly to discuss it and then either to reject or to accept it. This right cannot be curtailed. The Legislature is not confined to making laws only, for one of the most important functions of the Legislature is to act as a check on the executive Government and it is, in a parliamentary system, the main forum which can guide the executive in its action. This check on executive actions is exercised through questions, adjournment motions, out motions in the budget and by resolutions of the House. The Rules of Business recognise these rights and these different forms of activities are validly within the normal functions of the Legislature under a parliamentary system. A passing of a resolution or the type contemplated in Para. 6 of the Reference would therefore, be a valid and legitimate exercise of one of its functions. Mr. Zafar too has conceded that the recognition of a sovereign State is an Act of State falling exclusively within the executive competence of the Government but there is no bar to the executive seeking the approval in advance of the Legislature of its contemplated acts. Indeed, as pointed out in Halsbury's Laws of England, 3rd Edition, Vol. VII, pp. 285 and 287, H Paras. 603 and 607, a general practice seems to be growing up for the executive, as a matter of abundant caution, to get such approval of the legislature even for acts which are purely within its executive competence. This is exactly what is now sought to be done and there can be no legal objection to this. In Para. 603 ibid it is stated that "whether and when a particular Government is to be recognised as the Government of an independent State" is a fact of State "solely in the hands of the Crown or the Government" and that "the Court takes judicial notice of such facts of State, and for this purpose, in any case of uncertainty, seeks information from a Secretary of State; and the information so received is conclusive." Again in Para. 607, ibid is stated that "though treaties relating to war and peace, the cession of territory, or concluding alliances with foreign powers are generally conceded to be binding upon the nation without express parliamentary sanction, it is deemed safer to obtain such sanction in the case of an important cession of territory." The learned counsel contends that in the same way an important question like the recognition of a State in the circumstances in which Bangladesh has come into existence is eminently a subject on which the executive Government might well consider it safer to obtain such approval through a resolution of the House. Upon instructions of the Speaker, he also gives the assurance that if the resolution is not in conformity with the rules or is not desirable for any of the reasons mentioned in rule 93 of Chapter IX of the Rules of Business of the House, the Speaker will exercise his power of disallowing the resolution. Both the learned counsel, therefore, suggest that the answer to the question should be in the affirmative. We have examined with care the arguments advanced before us by the Learned counsel and have come to the conclusion after examining the relevant Constitutional provisions as also the provisions of the Rules of Procedure and Conduct of Business in the National Assembly, that every member of the House has a right to move a resolution in respect of a matter of public interest. If a member of the Opposition so desires, he too, may move a resolution to the effect that the Government of Pakistan should never recognise Bangladesh at any time. He would have a perfectly legitimate right to move such a resolution and no one would be able to prevent him from doing so. In the same way, any member of the House be‑longing to the party in power or the Government Party, has also the right to move a resolution of the kind suggested in Para. 6 of the Reference. There can be no legal objection to the moving of such a resolution, particularly, since no one can dispute the such a resolution would be in respect of a matter of great public interest. Since such a resolution will be nothing more than the mere expression of the will of the Legislature and will have no legal repercussions or efficacy being a resolution of only one of the component parts of the Legislature, it will not be in violation of any provision of the Constitution. There can be no legal objection to such a course being adopted. The form of the resolution proposed to be placed before the House, itself contemplates that legal and Constitutional measures may be necessary to give effect to the object sought to be achieved. It is for this reason that a "firm assurance" is being sought from the Assembly. No violation of any provision of any Constitution is, therefore, even contemplated. Such an assurance too will be nothing more than a pious wish, for legally it would not bind any future Parliament or present Parliament, for when the legislative measure or the Constitu tional amendment is brought before a House, the House will be free to consider it uninhibited by any assurance that it may have given earlier. No Legislature can legally abrogate its sovereign right to legislate as and when a legislative measure is brought before it in the light of its own provisions. The Legislature cannot be bound by any previous promise or assurance to legislate in a particular manner. Such a promise or as durance will neither be legally binding nor enforcible. Be that as it may, there can be no legal or Constitutional bar to the resolution being taken by the House to the effect that it would support the Government's future proposals for Constitutional amendments and/or legislative measures. This does not, however, mean that the validity of the legislative measures and/or the Constitutional amendments, if and when made, will not be amenable to a challenge in the Courts of law upon valid grounds, if any available. In this view of the matter, although we are unanimously of the opinion that there is no legal bar to the National Assembly considering or adopting a resolution of the purport described in Para. 6 of the Reference, yet as suggested by Mr. Manzoor nadir, we wish to make it clear that we express no opinion at this stage as to the constitutionality or the validity of the measures, legislative or executive, that may have to be taken before the according of formal recognition. We answer the Reference accordingly. Reference answered accordingly.