The Constitution of Pakistan, 1973 Developed by Zain Sheikh

SPECIAL REFERENCE UNDER ARTICLE 187 OF THE INTERIM CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN BY PRESIDENT ZULFIKAR ALI BHUTTO         

Per Hamoodur Rahman, J.

(a)     Constitution ofPakistan(1973) Art. 50, 51, 69 & 186
Constitution ofPakistan(1972) Art. 67, 93 & 187

[PRESIDENT’S REFERENCE UNDER ARTICLE 187 OF THE INTERIM CONSTITUTION OF THE ISLAMICREPUBLICOFPAKISTAN]

Since the tragic events of December 1971, which rent as under the two parts of Pakistan and severed all contacts between them, the question has been of prime importance to the Government as to how fraternal relations in accord with present and future realities can be re-established between the two Muslim communities. It has become increasingly obvious that the mutual isolation of the two communities is in the interest of neither and only strengthens the hands of forces hostile to the stability and well-being of both.

The Government, therefore, finds it necessary to move a 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, 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 his end.

As questions have been raised with regard to the validity of the proposed Resolution and the issue involves a question of law of public importance, the following reference is made for the opinion of the Supreme Court under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan.

“Can the Resolution of the purport described in paragraph 6 above, and envisaging such constitutional measures as may be necessary before the according of formal recognition, be validly adopted by the National Assembly?

The recognition of a State, it is contended, is a purely executive act within the exclusive competence of the executive Government. As pointed out byWilloughbyin his book ‘On The Constitution of theUnited 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 wished or opinions, but may not command.”

This Court also in the case of Superintendent, Land Customs, Torkham 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 recognized as such by theUnited Kingdomand the member Nations of South East Asia Treaty Organisation. 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 t which territory it has recognized as a part of its State and the Courts are bound to accept this position.”

In the same judgment, this Court further pointed out that 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 in the Minicipal 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 ere 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. 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 purpose of discussing and includes a resolution specified in the Constitution”. Chapter IX lays down the procedure for moving such resolutions to the provisions of these Rules, any member may move a resolution relating to a matter of general public interest”. Rule 88 prescribes the form of the resolution and indicates as to that sub-rule (1) 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 declaration of opinion by the Assembly. Can it then have any higher efficacy?

Rule 90 give 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 opinions be said that there is any legal bar to the moving of a resolution of the kind contemplated inPara. 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 (1) and Lt.-Col. Farzand Ali v. TheProvinceofWest Pakistan(2) are immune from challenge in the Courts.

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 actions. This check on executive actions is exercised through questions, adjournment motions, cut motions in the budget and by resolutions of the House. The Rules of Business recognize 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 of the type contemplated inPara. 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, 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.

We have examined with care the arguments advance 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 recognize 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 belonging 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 that 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 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 Constitutional 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 assurance 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 Qadir, 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.