Kazi Mukhlesur Rahman Vs. Bangladesh and another, 1974, 3 CLC (AD) WEDNESD AY, 28 NOVEMBER 2007 20:01
Supreme Court Appellate Division (Civil) Present: Sayem CJ AB Mahmud Husain J Abdullah Jabir J Ahsanuddin Chowdhury J Kazi Mukhlesur Rahman.........................Appellant Vs. Bangladesh and another ««««««««««Respondents Judgment September
3, 1974.
Cases Involved To: Banarasi Prashad vs. Kashi Krishna Narain, IR 28 IA 11; Radha Krishna Das Vs Rai Krishna Chand. Chand . LR 28 IA 182, Radhar Krishna Kri shna Ayyar Vs.
Swaminatha
31; Member, Board of Revenue Vs Akhtar Khan, PLD 1968
SC
Asgar Ali, 20 DLR ( SC) 217; McCabe Vs. Atchison 235 U
151; 151 ; 59 L. ed. ed . 169; 16 9; Mas -
S.
270;
Ayyar, LR 48 LA Shasi
Bhusan Vs
sachusetts Vs. Mell Mellon; on; Fronthingham Fron thingham Vs Mellon, 262 U. S. 447= 67 L. ed. 1078 and Joint Anti. Fascist Com V. McGrath, 31 U. S. 132s 95 L. ed. 817; Charanjit Lai V Union of India, AIR 1951
SC
41; Calcutta Gas Co. Prop.) Ltd. V.
State
of W Bengal, AIR 1962
Maganbhai Iswarbhai Patel P atel Vs Union of Ind In dia, AlE 1969
SC,
SC
1044;
789 , Anderson V.
Common wealth, 47 CLR 50; Mia Fazal Din Vs. Lahore Improvement Trust, 21 DLR ( SC)
225 ;
c
s
491 C;
s
179; C
s
s
Lawy
(1971) (1921) 2
-
1037;
C 262; 1937
ss
s
s -
1892)
C
(1970)
C
82
n
Ahmad Sobhan, Senior Advocate with Abdul Malek, Md. Amar Ali, A.Z.M. Khalilullah Md. Fazlul Karim, Md. Ruhul Amin, Advocates, instructed by S. M Huq, Advocat e-on-Record² For the Appellant. Syed Ishtiaq Ahmad, Additional Attorney-General with K.Z Alam, Dy, Attorney-General Ismailuddin Sarker, Mahmudul Islam, A W. Bhuiyan, Asstt. Attorney General, instructed by A. Rab, I. Advocate-on-Record²For the Respondents. Civil Appeal No 23 of 1974.
(F
m
m 559
Ju
H
C
s
20 -5-74
ss
1974)
en Sayem CJ.- This
is s
ic ion under Artic e
102(2)( )(ii) of the Constitution. It is by the applicant before the High Court Division. The application was summarily dismissed by the learned Judges of that Division, who however, granted the appellant certificate under Article 103(2)(a) of the Constitution. The certificate contains the following words: "Certificate for leave, as prayed for, under Article 103 (2) (a) of the Constitution is granted´ 2. In his application the appellant prayed before the High Court Division for a declara tion that the recent agreement between the Governments of the People's Republic of Bangladesh and the Republic of India signed on the 16th day of May, 1974 by the Prime Minister of the two countries (hereinafter referred to as the Delhi Treaty) which the appellant claimed, involved cession of Bangladesh territory was without lawful authority and of no legal effect. The declaration was sought with special reference to a part of what is known as Berubari Union No 12 and the adjacent enclaves that are under the administrative control of the Indian State of We st Bengal The relevant portion of the Delhi Treaty, including its title and the preamble, is set down below : ² " BETWEEN
THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANG LADESH
AND THE GOVERNMENT OF THE REPUBLIC OF INDIA CONCERNING THE DEMARCATION OF THE LAND BOUNDARY BETWEEN BANGLADESH AND INDIA ANE RELATED MATTERS.
"T he
Government of the People's Republic of Bangladesh and the Government of the
Republic of India, ³Bearing in mind the friendly relation existing between the two countries, " Desiring
to define more accurately a certain points and to complete the demarcation of
the land boundary between Bangladesh and India, " Have
agreed as follows: ²
**
**
*
* * **
**
"
Article 1
³T he land boundary between Bangladesh and India in the areas mentioned below shall be demarcated in the following manner: ³
14.
Berubari
India will retain the southern half south Berubari Union No. 12 and the adjacent enclaves, measuring an area of 2.64 square miles approximately, and exchange Bangladesh will retain the Dhagram and Angarpota enclaves. India will lease in perpetuity to Bangladesh area of 178 meters X 85 metres near ' T in Bigha' to connect Dahagram with Panbari Mouza (P.S. Patgram) of Bangla **
**
Article "T his
***
5
agreement shall be subject to ratification by the Governments of Bangladesh and
India and Instruments of Ratification shall be exchanged as early as possible.
T he
Agreement shall take effect from the date of the exchange of the Instruments of Ratification."
It will appear that the Delhi Treaty, prima facie, purports to determine the boundary between Bangladesh and India. 3. At the hearing of the appeal re spondents, namely, the Government of the People Republic of Bangladesh and the Prime Minister raised preliminary objections as to the competency of the appeal as well as the maintainability of the appli cation before the High Court Division presented under Arti cle 102(2)(a)(ii) of the Constitution.
4. The first objection raised on behalf of he re spondents was that the learned Judges of the High Court Division having failed to specify the question or questions re lating to the interpretation of the Constitution which arose for consideration, the certificate was plainly defective and consequently the appeal was incompetent. Reliance w as placed in this connection on Banarasi Prashad V Kashi Krishna Narain, (L R. 28 I ndian Appeals 11) Radha Krishan Das v. Rai Krishan Chand (L R. 28 Indian Appeals 182) and Radha krishna Ayyar V. Swaminatha Ayyar (L R. 48 Indian Appeals 31) as well as Member Board of Revenue V Akhtar Khan (P.L.D. 1968 S C 270) and Sashi Bhusan V. Asghar Ali [20 D.L.R (S.C.) 217.].
5. The three aforementioned Privy Council cases related to certificate under rule 3 of Order 15 of the Code of Civil Procedure. It will suffice to refer to the case of Radhakrishna Ayyar (L R. 48 Indian appeals 31) in which the other two Privy
Council cases have been relied upon. In this case the certificate granted by the High Court of Madras was in the following terms; ³It is hereby certified that, as regards the value of the subject-matter and the nature or the que stion involved, the case fulfils the requirements of ss 109 and 110 of the Code of Civil Procedure, and the case is a fit one for appeal to hi s Majesty in Council". The Judicial Committee observed that when a certificate is granted it i s of the utmost importance that the certificate should show clearly upon which ground it is based. The Judicial Committee proceeded thereafter to say: "T here
is no indication in the certificate of what the nature of the question is that it is
thought was involved in the hearing of this appeal, nor is there anything to show that the discretion conferred by s. 109(c) was invoked or was exercised.
T heir
Lordships think
is should be brought to the attention of the Indian Courts that these certi ficates are of great consequence, that they seriously affect the rights of litigant parties, and that they ought to be given in such a form that it is impossible to mistake their meanin g upon their face" .
The appeal was dismissed, the Judicial Committee having also found no reason to grant special leave to appeal. 6. The other two cases relied upon by the respondents, namely, Member, Board of Revenue V Akhtar Khan and Sashi Bhusan V Asgar Ali related to certificate of
fitness for appeal to the Supre me Court of Pakistan under Article 58(2) (a) of the Constitution of 1962. In the case of Member, Board of Revenue the certificate did not specify as to what if any, question of law as to the interpretation of the Consti tution was involved in the case. Being itself unable to discover any such question, the Supreme Court regretted that the High Court should have granted the Certificate without
specifying the question of law relating to the interpretation of the Constitution which i t thought arose in the case. Since, however, no objection was taken as to the validity of the certificate; the appeal was disposed of on merits. In Sashi Bhusan's case S.A R ahman CJ, who delivered the main judgment referred to the above Privy Council
decisions as also some other cases and repelled an argument that the mere physical fact of the granting of certificate by the High Court should preclude the Supreme Court from examining the propriety of the certificate on which the appeal was based. The learned Chief Justice was of the opinion that thi s would lead to the ab sur d conclusion that the jurisdiction of the Supreme Court was subject to control by the High Court. In his supporting judgment Sajjad Ahmed Jan, J added that the grant of a certificate of fitness for appeal was judicial function, which should be performed pr operly with the care and certitude of a judi cial mind and not as a mechanical act; and further shat it a fitness certificate did not di sclose a valid basis and found to have been granted in di sregard of the constitutional condition which regulates it. Namely, that the case must involve a substantial question of law as to the interpretation of the constitution, the Supreme Court would strike it down in ter mination of the proceeding which had been allowed to commence without any foundation and on a wrong lead". 7. We are in respectful agreement with the above view s Article 103 (2)(a) of our Contribution, inter alia, provides that an appeal to the Appellate Divi sion of the Supreme Court from the judgment, decree, order and sentence of the High Court Division s hall lie as of right where the High Court Division certifies that the case involves a substantial question of law as to the interpretation of thi s Constitution. In the instance case a certificate purported to be under Arti cle 103 (2)(a) is there, but it gi ves no indication of application of the judi cial mind to the question as to whether the case is a fit one for appeal to this Division. It is not only that the question or questions of law as to the inter pretation of the Constitution which the learned Judges might have thought needed our consideration have not been mentioned; the certificate speaks of 'leave' which did not concern that Division at all. Strangely enough, the learned Judge s thought the points raised in the application were so simple as to merit summary disposal and yet they granted the certificate. Such a mechanical approach cannot but call for strong disapproval. Indeed it was not that the appellant alone who felt aggrieved by the summary dismissal of his application by the High Court Division, the respondents also made the grievance that they were prejudiced by the summary disposal of the application since be cause of this they were denied the opportunity of filing an affidavit in that Division incorporating material facts. 8. In view, however, of the obje ction raised by the respondents against the form of the certificate, by way of abundant caution, the appellant filed a petition for special leave to
appeal in which he raised the question whether Article 55 (2) of our Constitution, by virtue of which the Prime Minister exercises the executive power of the Republi c, authorises him to enter into an international agreement of the kind as Delhi Treaty. This is a constitutional question which also floats on the surface of the brief judgment of the High Court Division, summarily dismissing the appellant's application. We are, therefore, of the opinion that the appeal before thi s Division is not incompetent, on the score of detective certificate. 9. The second objection raised on behalf of the re spondents relates to standing or l ocus standi of the appellant to move the High Court Division under Article 102 (2) (a) (ii) of
the Constitution which runs as follows : ² " (2) T he
High Court Division may, if satisfied that no other equally efficaciou s remedy is
provided by law² (a) on the application of any person aggrieved, make an order(i) ......... ............... (ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has done or taken without lawful authority, and is of no legal effect."
10. Admittedly the appellant not being a re sident of any part of the territorie s involved in the Delhi Treaty, the respondents contended that the appellant could have no interest therein which could be affected by the treaty and as such he was not a µperson aggrieved¶ within the meaning of Article 102 (2) of the Constitu tion entitling him to apply thereunder. In this connection the respondents referred to several decisions of the American and Indian jurisdictions, as well as one decision of the Australian High Court. The American decisions are McCabe V. Atchison (235 U. S.151:59 L. ed 169) Massachusetts V. Mellon; Fronthingham V. Mellon (262 US 447 ; 67 L. ed 1078) and Joint Anti Fascist Com V McGrath (31 U.S. 123: 95 L. ed. 817). The Indian
decisions are Charanjit Lai V. Union of India (AIR. 1951 S C 41), Calcutta Gas Co, (Prop) Ltd.; V. State of West Bengal (AIR 1962 SC 1044) and Maganbhai Ishwarbhai Patel V. Union of India (AIR 1969 SC 783. The lone decision of the
Australian jurisdiction is Anderson V. The Commonwealth (47 C.L. R 5 0). 11. McCabe V. Atchison arose out of a suit for injunction restraining the defendants from complying with the provi sions of a Statute for reasons that it was repugnant, inter alia, to the commerce clause of the Constitution of the United States as well as the 14th
Amendment. The relief asked for by the plaintiff s was refused, on the ground of ab sence of standing or locus standi . The Supreme Court observed: ²
" It
is an elementary principle that, in order to justify the granting of this extra ordinary
relief, the complainant's need of it, and the absence of an adequate remedy in law, must clearly appear. T he complainant cannot succeed because some one else may be hurt. Not does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant²not to others²which justifies judicial intervention. "
12. In Massachusetts V. Mellon the constitutionality of an Act of Congress viz , the Maternity Act; which provided for appropria tions to be apportioned amongst such several states as might accept and comply with its provisions, was challenged. It was pointed out that the relation of a tax -payer of a municipality to the municipal corporation was different from the relation of a tax -payer of the United State s to the Federal Government, since the interest of a tax-payer of the United States in the monies in the Treasury²partly realised from taxation and partly reali sed from other sources²is shared with millions of others; is comparatively minute and determinable; and the effect upon future taxation of any payment out of funds so remote, fluctuating, uncertain that no basis is afforded for an appeal to the preventive power s of a Court of equity. Thereafter the following observation was m ade:² '' Th e party who invokes the power must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement and not merely that he suffers in some indefinite way in common with the people generally ". Joint Anti-Fascist Refugee Com V. McGrath rose out of suits for declaratory and
injunctive relief s by three organisations seeking removal of their names from a list of groups designated by the Attorney -General as communist, raising various constitutional objections and asserting that they were organi sed for a permissible purpose only. The defendant Attorney-General's motion to dismiss the suits were granted by Courts below, in two cases on the ground that the plaintiff s failed to state a cause of action and in the third case on the ground that the plaintiff had no standing to sue. The majority of the Justices including
Mr.
Ju
ice Frankf urter agreed, though on different grounds that the
Complaining organisations had standing to sue. Our attention was drawn on behalf of the respondents to certain observations of Mr. Ju
tice
Frankf urter to the effect that the
simplest application of the concept of "standing" is to situations in which there is no real controversy between the parties, that a petitioner does not have a standing to sue unless he is "interested in and affected adversely by the decision" of which he seeks review, that his "interest must be of a personal and not of an offi cial nature". That his interest must not be wholly negligible as that of tax -payer of the Federal Government is considered to be; and further that a litigant must show more than that "he suffers in
some infinite way in common with people generally". He, however, added that adver se personal interest even of such an indirect sort as arises from competition is ordinarily sufficient to meet institutional standards of justifiability.
Mr.
Ju tice Frankf urter
decided that the plaintiff s had standing to sue and the action presented a justiciable controversy; because the plaintiff s objected to the validity of the exe cutive order which , apart from principle of Governmental immunity, would be clearly actionable in common law. As to the constitutional issues he held that due pro cess was violated. 13. Of the three Indian decisions in Charanjit Lal¶s case the principle quoted above from McCabe Vs. Atchison was referred to and concurred in by Fazal Ali, J. In the case of Calcutta Gas Co. what was held was that the right that can be enforced under Article 226 of the Indian Constitution must ordinarily be the per sonal or individual right of the petitioner hi mself though it need not be so in the case of Habeas Corpus or Quo Warranto. We will refer to the third Indian de cision after having considered the Australian case of Anderson V. The Commonwealth (47 C L R 50) in which an agreement between the Commonwealth of Australia and the State of Queen sland was involved. The
substance
of
the
agreement
was
that
the
Government
of
the
Commonwealth prohibited i mportation of certain kinds of sugar upto a certain date, while the Government of Queensland would acquire raw sugar in Queensland and New South Wales for certain specified prices. This increased the cost of sugar. It was held that the plaintiff, who had no intere st in the subject-matter beyond that of any other member of the publi c, had no right to bring the a ction which was for a declaration that the agreement in question was illegal and invalid. It was, however, pointed out that the "public is not or should not be without remedy, for the Attorney -General of the Commonwealth or of any of the states sufficiently interested, might take proceedings; necessary to protect their rights and interest". 14. The appellant did not di spute the prin ciples enunciated in the aforesaid case; nor there do any reason for differing fro m those principles, generally. The question, however, is whether regard being had to the special features of the instant case, the appellant could be given a hearing under Arti cle 102(2) of the Consti tution. 15. The instant case involves an outstanding Constitutional issue relating to an international treaty concerning an alleged cession of territory and affe cting the rights of the people of Bangladesh as a whole. It cannot be expected that any person residing in the territory involved in the Delhi Treaty would move such an application since admittedly it is under the administrative control not of Bangladesh but of India. In none of the above mentioned decisions the question of international treaty came in for consideration, far less a treaty involving cession of territory. The only decision cited by
respondents that approximates the instant case and which remains to be considered is Maganbhai Ishwarbhai Patel V Union of India (A.I.R. 1969 S C 783) in which an
international arbitration came up for examination relating to what i s known as the Rann of Kutch, a marshy waste land which was in some seasons under water and in other s muddy desert without any habitation. Admittedly, neither India nor Paki stan had any control or possession in any part of the Rann. There was a long standing dispute over this area between India and Pakistan which resulted in border clashes and
ultimately
culminated into open armed hostilities in April, 1965. A ceasefire was arranged followed by a joint proposal for arbitration. The arbitrators having given an award dividing the Rann between Pakistan and India by a boundary line, some persons moved the High Court under Article 206 of that Indian Constitution and having lost there, took appeal s to the Supreme Court of India. Some others moved the Su preme Court direct under Article 32 of the Constitution, None of the petitioner s could claim to be a resident of the Rann of Kutch. All of them, however, claimed locus standi to move the court on the basis of their fundamental rights, to travel, to reside or settle down and to acquire and hold property in the Rann by virtue of clauses (d),(e) and (f ) of Article 9(1) of the Indian Constitution. One of them named Madhu Limaye put forward an additional plea that he had attempted to penetrate the Rann to re connoiter the possibility of settlement but was turned back. The Supreme Court heard Mr. Madhu Limaye as well as the other petitioners, Mr. Madhu Limaye for his additional plea and the rest because they might also contribute to the result of the hearing. The Suprem e Court observed:"T he
only person who can claim deprivation of fundamental rights is Mr. Madhu Limaye,
although is his case also the connection was temporary and almost ephemeral. However, we decided to hear him and as we were to decide the question, we heard supplementary arguments from the others also to have as much as assistance as possible. But we are not to be taken as establishing a precedent for this Court which declines to issue a writ of mandamus except at the instance of party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. From this point of view we would have been justified in dismissing all petitions except perhaps that of Madhu Limaye."
16. On the question of locus standi the appellant contended before us that since the remedies available under Article 102(2) of our Constitution are discretionary, the words "any person aggrieved'' should be construed liberally and given a wide meaning, although in the facts and circumstances of a particular case the Court may regard the personal interest pleaded by a petitioner as being slight or too remote. In support of thi s contention the appellant relied upon
Mia Fazl Din Lahore Improvement Trust
(1969) 21 DLR (SC) 225 . In delivering the unanimous judgment of the Supreme Court
of Pakistan,
Hamoodur
R ahman, CJ. , had occasion to say that the right considered
sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he has personal interest in the matter which involves loss of some personal benefit or advantage or the curtailment of a privilege or liberty of fran chise 17. We have given the respondents objection as to the appellant ¶ s locus standi to move the High Court Division our anxious consideration. It appears to us that the question of locus standi does not involve the Court's jurisdiction to hear a per son but of the
competency of the person to claim a hearing so that the question is one of discretion which the Court exercises upon due consideration of the facts and circumstances of each case. The appellant has complained that he is under an impending threat of deprivation of his fundamental rights under Article 36 of the Constitution and his right of franchise. Because of this as well as of the exceptional and extraordinary constitutional issue raised in this case involving consideration of an international agree ment between this country and the friendly Republi c of India, we decided to bear the appellant. In the re cent case of Blackburn V. Attorney. General (1971) I WLR 1037 involving a treaty, namely. the Treaty of Rome for being a member of the European E conomic Community which was yet to be signed by the United Kingdo m and on which no agreement bad yet been reached, one Mr. Blackburn challenged the treaty seeking a declaration to the effect that by signing the treaty of Ro me the Government "will surrender in part the sovereignty of the Crown in Parliament and would surrender it for ever". Mr. Blackburn pointed out that regulations made by the European Community would become automatically binding on the people of the Union Kingdo m and that all the Courts, including the House of Lords, would have to follow the decisions of the European court in certain defined respects, such as the construction of the treaty. Thu s Mr Blackburn challenged the treaty of Ro me in of a capacity of a citizen of the United Kingdom and a member of the general public. A point was raised as to whether Mr. Blackburn had the standing or locus standi to come before the Court Lord Dennin "T hat
M.R.
observed as follows:²
is not a matter which we need rule upon today. He says that he feels very strongly
and that it is a matter in which many persons in this country are concerned " I would not myself rule him out on the ground that he has no standing. But I do rule him out on the ground that these courts will not impugn the treaty-making power of Her Majesty, and on the ground that insofar as Parliament enacts legislation we will deal with that legislation as and when it arises."
18. The fact that the appellant i s not a resident of the southern half of South Berubari Union No. 12 or of the adjacent enclaves involved in the Delhi Treaty need not stand in the way of his claim to be heard in thi s case We heard him in view of the constitutional
issue of grave importance raised in, the instant case involving an international treaty affecting the territory of Banglade sh and his complaint as to an impending threat to hi s certain fundamental rights guaranteed by the constitution, namely, ro move freely throughout the territory of Banglade sh, to reside and settle in any place therein as well as his right of franchise. Evidently, these rights attached to a citizen are not local. They pervade and extend to every in ch of the territory of Banglade sh stretching upto the continental shelf. 19. The respondent's third objection was that the treaty-making being an act of state, the Delhi Treaty was not amenable to judicial review. Our attention was drawn in this connection to Halsbury's Laws of England (3rd Edition), Vol. 7, page 279, where an act of state has been defined as an act of the executive as a matter of policy in the course of its relations with another state, including its relations with the subjects of that state, unless they are temporarily within the all egiance of the Crown At page 281 it has been stated that typi cal acts of state
are
the making and performance of treaties, the
seizure or annexation of land or good s in right of conquest, or the declaration of war, or of blockade. It has also been pointed out in that volu me at page 280: "There can be no act of state against my one who owes allegiance to the Crown." This principle was propounded by Lord Herscheil in Walker V Baird (1892) A C 491 P.C and followed by the House of Lords in John-stone V Pedlar (1921) 2 A.C 262. This principle as again recently been reiterated by Lord Reid in Nissan V. Attorney-General (1970) A.C.179.
We are clearly of the opinion that, in pea ce time the plea of act of state is not available in an action involving deprivation of rights and liberties of the citizen. The Courts have always intervened with a view to examining if the plea of act of state could be taken in defence against a citizen. The jurisdiction of courts cannot be excluded by merely raising a plea of act of state. 20. The fourth and the last objection raised by the respondents is that the appli cation before the High Court Division was pre mature. In support of thi s objection, the respondents contentions were two-fold, Reference was made to Attorney-General of Canada V. Attorney-General of Ontario (A.I.R. 1937 P C 82) where Lord Atkin
observed that it was essential to keep in mind the distinction between (1) the formation and (2) the performance ''of the obligation s constituted by a treaty u sing the word as comprising any agreement between two or more sovereign sates; and further that the question is not 'how is the obligation formed, that is the function of the executive; but how is the obligation to be perfor med and that depends upon the authority of the competent legislature or legislatures. The respondents contended befor e us that the
mere making of a treaty does not affect the citizen who must wait till the perfor mance of the obligations of the treaty. There can be no dispute as to what Lord Atkin said But we are unable to accept the contention of the respondents that a citizen cannot be allowed to move the court before the obligation s under the treaty are perfor med. In the instant case the mere signing of the treaty has resulted in an impending threat to the appellant's rights as a citizen. 21. The second branch of the respondent¶ s contention in support of the fourth obje ction appears, however, to have substance. We have quoted above the last article in the Delhi Treaty which says that it is subject to ratification and chat it would take effe ct "from the date of the ex change of the Instruments of Ratification". The respondents contended that since the Delhi Treaty was in terms stipulated to come into effect only upon the happening of the event of ratifi cation, and exchange of the instruments of ratification, the application before the High Court Division seeking a declaration that the Delhi Treaty was without lawful authority and of no legal effect was premature. True it is that though the Delhi Treaty i s dispositive in nature, in the face of the express stipulation just referred to, it cannot be said to be an executed treaty. Something is yet to be done before it can be so we. therefore, agree with the re s pondents that she application before the High Court Division out of which his appeal has arisen was premature, because there can be no question of a document being declared to be without lawful authority and of no legal effect when the document itself stipulates that it will be effective only on the happening of a certain event in future, namely, the exchange of instruments of ratification. This would suffice for disposing of the appeal which is liable to be di smissed on this ground alone. 22. Since, however, we have heard the par ties on merits in relation to the question of interpretation of Arti cle 55 (2) of our Constitution; we feel that we should express our opinion on this question. 23. It may be mentioned at thi s stage that the appellant did not di spute the proposition that treaty-making is an executive act and so also ratification, if a treaty contains provision for ratification and that both fall within the a mbit of the executive power of the State. Let us now examine Article 55(2) of our Constitution. 24. Article 55(2) of the Constitution says: "The executive power of the Republi c shall, in accordance with this Constitution, be exercised by or on the authority of the Pri me Minister." The Prime Minister, or one in hi s authority, is thus required to exer cise the executive power in accordance with the Constitution and not otherwi se. This is in keeping with the settled principle that Parliament has constitutional control over the Executive. Clause (2) of Article 143 of our Continuation says: "Parlia ment may from time
to time by law provide for the deter mination of the boundaries of the terri tory of Bangladesh and the territorial water s and the continental shelf of Bangladesh´. The Prime Minister cannot, therefore, unilaterally determine the boundaries of the country. This can only be done by law enacted by parliament in that behalf. We have earlier set out the fourteenth paragraph of Arti cle 1 of the Delhi Treaty whi ch, inter alia, says that India will retain the southern half of south Berubari Union 2 and the adjacent enclaves. 25. It is worth noting that as early as on September 10, 1958 there was a treat y between Pakistan (of which this country was then a province named East Pakistan) and India resolving certain territorial disputes. Pakistan claiming sovereignty over
those
territories on the basis of the Radcliff Award which was given on the eve of the partition of India under section 3 of the Indian Independence Act, 1947. The treaty was known in this country after the names of the then respective Prime Ministers of Pakistan and India as Noon-Nehru Pact. It contained several items of dispute between the two countries including enclaves. As to Berubari Union No. 12 and the enclaves the agreement arrived at by the High Contracting Parties was recorded in Noon -Nehru Pact, which contained no provision for ratification and was duly signed and executed by th eir respective accredited agents, in the following manner:² (3) Berubari Union No. 12.
"
"T his
will be so divided as to give half the area to Pakistan, the other half adjacent to
India being retained by India.
T he
division of Berubari Union No 12 will be horizontal,
starting from the north-east corner of Debiganj thana.
T he
division should be made in
such a manner that the Cooch Behar enclaves between Pachagar thana of East Pakistan and Berubari Union No 12 of Jalpaiguri thana of West Bengal will remain co nnected as at present with Indian territory and will remain with India.
T he
Cooch Behr enclaves lower
down between Boda thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan."
26. Consequent upon the conclusion of Noon -Nehru Pact the southern half of south Berubari Union No. 12 together with the adja cent enclaves, thus fell in the share of erstwhile East Pakistan. Noon-Nehru Pact did not contain any provision for ratification, evidently signifying a manifest intention on the part of the High Contracting Parties that the details of the treaty settling the disputes between the two countries would immediately come in to effect upon its execution by their accredited agents. It was accordingly a dispositive treaty, and as such internationally binding. No ques tion of a fresh boundary dispute could, therefore, ari se. Besi des, soon after the execution of Noon-Nehru Pact, Constitution (Ninth Amendment) Act. 1960 was enacted by the Indian
Parliament on the advi ce tendered by the Supre me Court of India under Arti cle 143 of the Indian Constitution: See AIR 960 S.C. 845. In the Ninth Amendment the manner in which disputes relating to Berubari and the en claves were resolved by Noon -Nehru Pact were incorporated. Actual physical possession of the portion of Berubari and the en claves that were given to Pakistan could not be made over to bet owing to certain litigations pending in the Indian Supreme Court and due to hostilities that broke out, between India and Pakistan in September, 1965. That cannot, however, be of any consequence since the question of sovereignty over that portion of territory had already been settled and recognised by the common consent and conduct of Pakistan and India demonstrated by Noon-Nehru Pact, which was again followed the aforesaid Constitutional amendment in India, incorporating the detail s of Noon -Nehru Pact. The southern half of south Berubari lion No. 12, together with the en claves, thus formed an inseparable and integral part of the territory of Bangladesh in view of Article 2 (a) our Constitution which defined the territory of the People' s Republic of Bangladesh as comprising "the territories which immediately before the pro clamation of independence on the 26th
day of March, 1971
constituted East Pakistan". Agreeing to their retention by India stipulated in the Delhi Treaty cannot but, therefore, involve cession of territory by Banglade sh. In this connection we will content ourselves by referring to three leading cases, namely, Columbia V Venezuela (U. N Rep, Vol. I, page 223), Belgium V. Netherlands reported in (1959) I. C. J Reports page 209 and Ca mbodia V. Thailand reported in (1962) I.C.J. page 6.
27. In Columbia V. Venezuela (U. N Rep., Vol. I, page 223),
which involved a
boundary dispute between the two countries, at page 279. It has been noticed that the Swiss Federal Council refused to accept the view that sovereignty does not pass until delivery in its award in 1922 in the dispute in question and made the following observation:² A "
state which occupied a territory the sovereignty over which has been recognised as
belonging to another State has no right to insist on formal delivery of territory which it retains without legal rights; its holding of the territory in question has ceased to be legitimate with the entry into force of the sentence.
T he
State which continues to occupy
the territory in contradiction to the terms of the award has only one duty, that is to say, to evacuate the territory in question. T he other State has the right to proceed to occupation subject to such duties of country as may be required by the necessity to avoid conflicts and to inform inhabitants.´
28. In Belgium vs. Netherlands (1959) I.C.J Reports page 209 , certain parcels of land lying between Belgium and Netherlands remained of uncertain sovereignty for many years since 1843. By special agreement between the two states, the International Court
of Justice was asked to deter mine which of the two states had sovereignty over those parcels of land. The controversy arose in connection with an error in the Boundary Convention of 1843. The Court determined that the title to the disputed land vested in Belgium by virtue of the 1843 Boundary Agreement, despite the fact that dur ing most of the period following the boundary agree ment Netherlands officials had assumed that the area in question formed part of their state inconsequence of the exercise of their authority in the area through the i mposition of taxes and taking other administrative routine acts. The Court took the view that if possession is adverse, the display of acts of sovereignty which are "largely of a routine and administrative charter performed by local officials are insufficient to display Belgium sovereignty established by that convention." In Cambodia vs. Thailand (1962) I.C.J. page 6, a controversy of exceptional interest arose involving the boundary between the two countries and the territorial sovereignty over the area in which the Temple of Preah Vihear was located. The controversy was submitted to the International Court of Justice in 1959. Until Cambodia attained her independence in 1953 she was part of French Indo-China. It was common ground that the boundary dispute was settled in the period 1904-1908 between France and Siam (as Thailand was then called) and, in particular, that the sovereignty over Temple of Preah Vibear depended upon the boundary treaty dated February 13, 1904, and upon events subsequent to that date. As late as in 1962 the Court decided on the basis of a map pre pared by the Boundary Commission in 1907 that the Temple was situated in the territory under the sovereignty of Cambodia 29. By virtue of Noon -Nehru Pact of 1958 earlier we have shown, Pakistan¶ s sovereignty over the southern half of south Berubari Union on No. 12, together with some other lands including the adjacent enclaves was permanently settled and recognised by India, though their actual physical possession continued to lie with India. That al so appears to be the reason why the Delhi Treaty says that India will 'retain' the "southern half of south Berubari Union No. 12 and the adjacent enclaves". Agreeing to such retention of the portion of Berubari by India, in our view, cannot but entail peace time cession of territory by Bangladesh to India. Even if the Delhi Treaty had re sulted only in the settlement of boundary between thi s country and the neighbouring friendly Republi c of India, Article 143 (2) of our Constitution would intervene and require ena ctment by Parliament determining the boundary. Cession of territory however, being involved in this case, the question of taking recourse to Article 142 will ari se. 30. We cannot help mentioning that the Delhi Treaty contains some reference also to perpetual lease, exchange of enclaves along with exchange of territories under ''adverse possession" of the parties. All these will create difficulties in implementati on of the provi -
sions of the Delhi Treaty, necessitating a very close examination of the detail s thereof vis-a-vis Noon-Nehru Pact.
31. On the question of necessity of the assent of Parliament to treaties involving cession of territory, even in countries without written constitution, reference may be made to certain standard treaties on the subject. In Hood Phillips Constitutional and Administra tive Law, 4th Edition the following passage occurs at page 267"T he
Crown was persuaded to seek Parliamentary approval for the cession of Heligoland
to Germany in 1890 (Anglo-German Agreement Act, 1890), and since then it has been the practice to ask Parliament to confirm cessions e g., Anglo-Italian (East African tories) Act 1925. Dindigs Agreement Approval Act, 1934; Anglo-Venezuelan (Island of Patos) Act, 1942. T he Anglo -Irish
"T reaty " confirmed
T erri-
T reaty
by the Irish Free State
(Agreement) Act, 1022 was in a special category. Whatever the law may be, this seems to be now the convention Indeed, convention pr obably demands that Parliament should be consulted beforehand, as in the case of the cession of Jubaland to Italy in 1927. "
Wade and Phillips in their work Constitutional Law, 8th Edition, 1971, at page 278 say as follows:² ³It is the practice, and probably by now may be regarded as a binding constitutional convention, that treaties involving the cession, of territory require the approval of Parliament given by a statute."
32. Peter G Richards in his Parliament and Foreign Affairs, 1st Edition, 1971, at page 42 says:² ³Whether the Crown has the right under the Royal Prerogative to cede territory without Parliamentary consent is a matter of legal argument. Holdsworth was of the opinion that it has such power. But since the cession of Heligoland to Ge rmany in 1890 there have been many cases in which treaties involving territorial transfer have been approved by Parliament in subsequent legislation. It is thus regular practice, if not a bind ing constitutional convention, for legislative sanction to be obtained. "
In the Law of Treaties by Lord McNair, 1961 Edition, at page 96 the following passage occurs:² " (iv)
Certainly upto half a century age minor cessions of British territory frequently took
place without Parliamentary sanction, though many of them were not true cessions but either a withdrawal of protectorate or a relinquishment of a doubtful claim. But, at any rate from 1891 onwards, there are several precedents of treaties of cession receiving Parliamentary sanction in the form of a statute.
T hese
are the Anglo-German Agreement
Act 1890, sanctioning the cession to German of Heligoland; the Anglo -French Convention Act, 1904, where the treaty for the cession of certain British territory to France was made 'subject to the approval of their respective Parliaments¶; the Anglo-Italian (East African
T erritories
Act, 1925, which gave approval to a treaty
involving, as a
consequence of the rectification of a frontier a cession of British-protected territory; the Striates Settlements and Jchore
T erritorial
Waters (Agreement) Act, 1928; the Dindings
Agreement (Approval) Act, 1934; an the Anglo-Venezuelan (Island of Patos Act, 1942, approving a treaty of scession by Great Britain. T here
is, every reason to expect th these recent precedents will be follows in the future,
whatever may be the mode by which the territory was originally acquired: and it is unlikely that the Crown will agree by treaty to cede any territory without being sure that Parliament would approve, or, if in doubt, without inserting a clause making the cession dependent upon Parliamentary approval " .
33. In his Introduction to International Law, 7th Edn, page 90. J G. Starke has also said that it has been established that "treaties involving the cession of British territory require that approval of Parliament given by a Statute" 34 It will be evident from the above (tracts from works of authors of repute on International law that even in a country like England which is not governed under a writConstitution, the modern trend is to obtain the assent of Parliament in case of cession territory. 35. Ours is a written Constitution. We ye already seen that the head of the Executive namely, the Prime Minister cannot laterally determine the boundaries of Bangladesh which has to be done by a law of under Arti cle 143 (2) of our Constitution. It cannot but be more so when cession of territory i s involved. This limitation on the part of the head of the Executive Bangladesh is on the face of it such a ³manifest and notorious" restriction on his treaty-making power that any such treaty entered in to by a foreign state with Bangladesh without the sanction of the Parliament of Bangladesh will be ultra vires and cannot pass title. This view finds authoritative support from authors of
international repute on subject. 36. In his International Law, Second Edition, while dealing with countries having written Constitution, Professor D. P. O. Con -has observed at page 437:² "T he
capacity to transfer territory is absolute in International Law, but the latter
obviously cannot ignore the question of capacity of the acting autho rities in Municipal Law. T he Constitution determines the agency that is competent to dispose of national territory, and if a purported transfer is ultra vires no title is acquired internationally " .
Such is also the opinion of Oppenhei m in his work International Law, Vol. I, 8th Edition. It has been observed at page 547: "T he
Constitutional Law of the different States may or may not lay down special rules for
the transfer or acquisition of territory. Such rules can have no direct influence upon the rules of the Law of Nations concerning cession, since Municipal Law can neither abolish existing nor create new rules of International Law. But if such Municipal rules contain constitutional restrictions on the Government with regard to cession of territory, these restrictions are so far important that such treaties of cession concluded by Heads of States or Governments as violate these restrictions are not binding´.
Charles G. Fenwick in his work International Law, Third Indian Reprint, 1971, after having examined the views of standard authors has observed at page 524 under the heading "Effect of failure to ob serve Constitutional procedures´ :² " What
is the validity of a treaty which has been ratified by the Head of the State without
submission to the Legislature in accordance with the provisions of the Constitution? A number of authors have held that foreign governments are justified in considering the act of the Head of the State as definitive, leaving it to Constitutional Law to deter mine whether he has acted within the scope of his
powers. Constitutional processes, they
hold, vary in the different states: and it is sufficient that the Head of the State shall declare that they have been fulfilled to consider them as fulfilled. however, maintain that foreign Constitutional prerequisites of
T he
majority of writers,
governments should be held to a knowledge of the ratification is each country with which they are dealing;
and they insist that a treaty which has been ratified without the proper observance of the requirements is ipso facto invalid, whatever, the proclamation of the Head of the State may assert in that respect."
We will conclude this chapter by a" referen ce to the Vienna Convention on the Law of Treaties, 1969 to be found in Basic Docu ments in international Law, Edited by Brownlie, Second Edition (1972) at page 251 Article 46 of the Convention which is un der section 2 (Invalidity of Treaties) runs as follows:² Article 46. " Provisions
of Internal Law regarding competence to conclude treaties.
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its Internal Law regarding competence to conclude treaties as invalidating its consent unless that vio lation was manifest and concerned a rule of its Internal Law of fundamental importance.
2. A violation is manifest if it would be o bjectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. "
37. It may be also mentioned that in India too there can be no cession of territory with out amendment of the Constitution. The latest pronouncement of the Indian
Supreme
Court on this question is to be found in Maganbhai Iswarbhai Patel vs. Union of India (A.I.R 1969 S.C. 783) earlier noticed in another context.
38. There can thus be no escape from the position that though treaty-making falls within the ambit of the executive power under Article 55 (2) of the Constitution, a treaty involving determination of boundary, and more so involving cession of territory, can only be concluded with the concurrence of Parliament by necessary enactment; in case of determination of boundary by an enactment under Article 143(2) and in case of cession of territory by amending Article 2(a) of the Constitution by taking recourse to Article 142. 39. Had the Delhi Treaty involved a mere determination of the boundary between thi s country and our friendly neighbour India, it could be implemented by a single enact ment under Article 143 (2) of the Constitution. In view, however, of our conclusion that it involves cession of territory by Bangladesh, we are clearly of the opinion that in order to implement this treaty, prior to ratifi cation thereof it will be ne cessary to take recourse to Article 142, with a view to amending Article 2(a) which defines the territory of the People's Republic of Bangladesh. 40. This appeal is, however, liable to be and i s dismissed in view of our finding that the application under Article 102(2)(a)(ii) of the Constitution, out of whi ch it has arisen, was premature. There will be no order as to costs. Before parting with the case we would like to place on record our appreciation of the able assistance rendered to u s by Counsel on both sides. Ed. This Case is also Reported in: 26 DLR (AD) 44.
