Background of the Case
In the case of Kazi Mukhlesur Rahman v. Bangladesh, the appellant challenged the legality of the Delhi Treaty of 1974 on the ground that the Treaty involved cession of territory of Bangladesh and was entered into without lawful authority by the executive head of the government. The Court set a precedent by liberalizing the interpretation of locus standi, occurring eight years before India’s liberalisation of locus standi in S.P. Gupta v. President of India. The appeal in this case arose out of an application under Article 102(2)(a)(ii) of the Constitution, a cornerstone for judicial review, under which a person can seek redress if any governmental action exceeds lawful authority.
Arguments Presented by the Respondent
The appeal was filed to the Appellate Division after the High Court Division (HCD) granted the appellant certificate to appeal under Article 103(2)(a) of the Constitution. The first objection of the respondent was that the HCD failed to specify in the certificate the question which arose for consideration relating to the interpretation of the Constitution, making the certificate defective and the appeal incompetent. In support of this contention the respondent cited a number of Indian and Pakistani cases such as, Radha Krishna Ayyar v Swaminatha Ayyar; Sashi Bhusan v Asghar Ali etc. Here, the respondent utilized comparative constitutional law to their advantage as a ‘borrowing’ or ‘transfer’ oriented comparison can be found. The objective of this kind of comparison, according to Rosalind Dixon, is to find constitutional language, structure or doctrines from other jurisdictions that could be applied to one’s own jurisdiction. The respondent’s second objection was that since the appellant is not a resident of any of the territories involved in the Delhi Treaty, he had no interest therein that could be affected by the treaty and was not a person aggrieved under Article 102. The third objection of the respondent was that, treaty making being an act of state, the Delhi Treaty is not subject to judicial review.
Application of Comparative Constitutional Law
As regards the first objection of the respondent concerning the ‘defective certificate’, the Court after clarifying that ‘they are in respectful agreement with the decisions cited by the respondent’, explained why, even on the score of a defective certificate the appeal before the Court was not incompetent. The reasoning was, the appellant filed a petition for special leave to appeal in which he raised the question whether Article 55(2) of the Constitution authorizes the Prime Minister to enter into a Treaty like the Delhi Treaty involving cession of territory. According to the Court, this is a constitutional question which floats on the surface of the brief judgment of the HCD. Therefore although the certificate was defective, the appeal was not incompetent. By doing so, the Court engaged in ‘deliberative’ comparison because despite agreeing that a certificate to appeal is defective if it does not mention the question of interpretation of constitution, the Court did not declare the appeal incompetent for this reason, thus being persuaded by a comparative argument without fully adopting the doctrinal resolution. Deliberative comparison enables a judge to be influenced by arguments presented in a comparative context without entirely embracing the doctrinal resolution or formulation established by the foreign court or to adopt a specific doctrinal resolution for somewhat different reasons that were decisive elsewhere.
On the issue of locus standi, the appellant asked for a liberal interpretation of locus standi, although, quite surprisingly, did not refer to the landmark case of Blackburn. However, the Court referred to the case of Blackburn v Attorney General where Mr. Blackburn challenged the Treaty of Rome as a citizen of the United Kingdom. In this case the court did not dismiss the case on the ground that Mr. Blackburn did not have locus standi, but on the ground that the court will not impugn the treaty making power of Her Majesty. The court noted that, it can be implied that Mr. Blackburn did have locus standi to challenge the Rome Treaty. Basing on this precedent, the court granted locus standi to the appellant on two grounds, i.e. he was under an impending threat of deprivation of his fundamental rights under Article 36 and his right to franchise and he raised an extraordinary constitutional issue involving an international treaty affecting the territory of Bangladesh. To reach this conclusion the Court borrowed a constitutional doctrine from the British jurisdiction that a citizen has the standing to challenge a treaty entered into by the executive. The Court also engaged the functionalist mode of comparison which was transfer oriented since it has borrowed or transferred arrangements from another jurisdiction i.e. ‘the standing of a citizen to challenge a treaty entered into by the executive’, so that it can ‘improve the way’ in which the relevant constitutional functions are performed domestically. Functionalism is one of the methods of constitutional comparison according to which particular constitutional provisions create arrangements that serve particular functions in a system of governance. Comparative constitutional analysis can identify those functions and show how different constitutional provisions serve the same purpose in different systems.
On the issue of cession of territory involved in the Delhi Treaty and the treaty making power of the executive, the court cited the case of Belgium v Netherlands decided by the ICJ. In Belgium v Netherlands the court determined that the title to the disputed land vested in Belgium by virtue of the 1843 Boundary Agreement, despite Netherlands’ sovereignty over the contested territory for most of the period after the 1843 Agreement. Drawing on this authority the court noted that by virtue of the Noon-Nehru Pact of 1958, Pakistan’s sovereignty over the southern half of south Berubari union no. 12 was permanently settled and was recognised by India. Therefore, the fact that even after the Pact the actual physical possession of the land continued to lie with India is of no consequence. At this point, the court again referred to comparative constitutional law materials and noted that even the Crown was obligated to obtain Parliamentary approval for the cession of Heligoland to Germany in 1890. Since then, it has been customary to seek Parliamentary confirmation for cessions, as demonstrated by the following instruments: the Anglo-Venezuelan Treaty (Island of Patos) Act, 1942; and the Anglo-French Convention, 1904, among others. The Court here was involved in a thick form of doctrinal comparison as it explored the formal development of constitutional doctrine in a foreign system.
The Court noted that even in a country like England, which lacks a written constitution, the norm is to secure parliamentary approval for cession of territory. The Court concluded that the Prime Minister, as the head of the government, cannot unilaterally establish the limits of Bangladesh, which must be determined by a statute enacted by Parliament under Article 143(2). If the treaty involves cession of territory, in order to implement it, it will be necessary to take recourse to Article 142 which a view to amending Article 2(a) which defines the territory of Bangladesh. As such, the court held that any treaty entered into by the Prime Minister without the sanction of the Parliament shall be ultra vires and cannot pass title.
At this point it is pertinent to note that in view of the definition of ‘law’ provided in Article 152, any treaty relating to the cession of territory must come within the meaning of ‘other legal instrument’ as mentioned in the Article, and hence such treaty will have the force of law in Bangladesh under Article 152. According to Article 7(2), any law inconsistent with the constitution shall be void to the extent of such inconsistency. The court clearly noted in para 35 that any treaty involving the cession of territory, if entered into without parliamentary assent, shall be ultra vires the constitution. Hence if Articles 152 and 7(2) are read together, the Court could have declared the Delhi Treaty void and ultra vires the Constitution solely based on the text of these two Articles. There was no need for the court to rely on comparative constitutional law materials, as Mark Tushnet observed, ‘to know what we can learn from elsewhere, we must first find out how far we can go using only domestic resources.’. Unfortunately, nowhere in the judgment the court referred to either Article 7(2) or 152.
Final Judgment and Legal Implications
The appeal was dismissed on the ground that the application under Article 102(2)(a)(ii) was premature, as the Treaty will only take effect following a future event, i.e. after ratification and the exchange of instruments. This decision, nonetheless, has been pivotal in shaping our legal landscape, as the ‘liberalization agenda’ undertaken in this case subsequently influenced a broader liberal interpretative approach to various constitutional provisions and it also set a precedent showing the significant role of comparative constitutional law in shaping constitutional interpretations in Bangladesh.
About the author :
Oishe Rahman is an Apprentice Lawyer and LL.M. student at the University of Dhaka. Her research interests include human rights law, public international law, and comparative law.