Kazi Mukhlesur Rahman vs Bangladesh & Another 26 DLR (AD) 44

Case Name: Kazi Mukhlesur Rahman vs Bangladesh & Another 26 DLR (AD) 44

Court: Appellate Division, Supreme Court of Bangladesh

Date: 1974

Bench: ASM Sayem CJ, A.B. Mahmud Hossain J, Abdullah Jabir J, Ahsanuddin Choudhury J.

Introduction:

The case of Kazi Mukhlesur Rahman vs. Bangladesh and Another (26 DLR [AD] 44)[1] remains a significant milestone in the constitutional history of Bangladesh. This landmark case tested the limits of executive authority in treaty-making and raised critical questions about parliamentary sovereignty, fundamental rights, and the role of citizens in defending territorial integrity. The case arose in the context of the Mujib-Indira (Delhi) Treaty of 1974[2], which aimed to resolve long-standing territorial disputes between India and Bangladesh. The case remains a cornerstone in Bangladeshi constitutional jurisprudence, particularly concerning the doctrine of locus standi, the separation of powers, and sovereignty over national territory.

Facts of the Case:

The case of Kazi Mukhlesur Rahman v Bangladesh and Another arose from a constitutional challenge to a proposed international treaty concerning the territorial demarcation between Bangladesh and India. The origins of the dispute date back to 10 September 1958, when the Prime Ministers of India and Pakistan signed the Noon-Nehru Agreement[3] to resolve several border disputes, including the contentious area of Berubari Union No. 12. Under this pact, the Berubari Union was to be divided horizontally, assigning the southern portion and adjacent enclaves to East Pakistan. However, due to deteriorating political relations and escalating diplomatic tensions between the two nations, the agreed territorial exchange was never implemented in practice.

Following the independence of Bangladesh in 1971, the Constitution of Bangladesh came into effect in 1972 and defined the territory of the new Republic under Article 2(a)[4] as encompassing the areas that formed East Pakistan as of 26 March 1971. On 16 May 1974, the Prime Ministers of Bangladesh and India signed a new treaty in Delhi—commonly referred to as the Mujib-Indira Treaty or the Delhi Treaty—to settle the territorial ambiguities once and for all. Under clause 14 of Article 1 of the treaty, India was to retain the southern half of Berubari Union No. 12, while Bangladesh would retain sovereignty over the Dahagram and Angorpota enclaves, and India would grant a perpetual lease of the Tin Bigha corridor to allow access to these areas. Unlike the Noon-Nehru Pact, the Delhi Treaty was explicitly made subject to ratification by both states, following international treaty-making norms.

Concerned about the constitutional implications of this agreement, Kazi Mukhlesur Rahman, a Bangladeshi citizen and lawyer, filed a writ petition in the High Court Division of the Supreme Court of Bangladesh. He challenged the legality of the treaty because it amounted to a de facto cession of Bangladeshi territory without the constitutional amendment required under Article 142[5] and without legislation as stipulated under Article 143(2)[6] of the Constitution of Bangladesh. The High Court Division summarily dismissed the writ petition but granted a certificate under Article 103(2)(a)[7], allowing the matter to be appealed before the Appellate Division of the Supreme Court.

Legal Issues

1. Whether the appeal was maintainable despite a defective certificate.
2. Whether the petitioner had locus standi to file the writ.
3. Whether the Delhi Treaty, being an act of state, was immune to judicial review.
4. Whether the treaty caused cession of Bangladeshi territory and, if so, whether that required a constitutional amendment.

Arguments:

Appellant’s Arguments-

The appellant, Kazi Mukhlesur Rahman, challenged the constitutional validity of the 1974 Delhi Treaty between Bangladesh and India, which sought to resolve territorial disputes through mutual adjustments, including India’s retention of the southern portion of Berubari Union No. 12. He argued that this amounted to a de facto cession of Bangladeshi territory, and thus contravened Article 2(a) of the Constitution of Bangladesh, which defines the territory of the Republic as that which constituted East Pakistan on 26 March 1971. He contended that altering this constitutional definition requires both an Act of Parliament under Article 143(2) and a constitutional amendment under Article 142.[8]

Rahman also contended that his fundamental rights, especially under Article 36 of the Constitution—the right to move freely and reside in any part of the country—were threatened by the treaty’s implementation. Although he was not a resident of the affected area, he argued for a liberal interpretation of “person aggrieved” under Article 102(2), asserting that the issue was of such grave constitutional significance that strict personal standing requirements should not bar access to justice. He emphasized that the matter implicated national sovereignty and that, in such cases, even a remotely connected citizen should be allowed to approach the court in defense of the Constitution.

Furthermore, the appellant rejected the argument that the petition was premature. He asserted that the mere signing of the treaty had already created an imminent threat to the Constitution and the rule of law. He stressed that the judiciary must be proactive in scrutinizing executive actions that bear the potential to alter the structure of the state, especially when such actions are taken without parliamentary oversight.

He also opposed the classification of the treaty as a non-justiciable act of state, arguing that no act of the executive could override the supremacy of the Constitution. Citing the constitutional duty of the judiciary to uphold fundamental rights and the rule of law, he insisted that the courts could and should review such executive agreements when they implicate constitutional boundaries and citizens’ rights.

Respondents’ Arguments-

The respondents, representing the Government of Bangladesh, argued primarily on procedural and constitutional grounds. They asserted that the appellant lacked locus standi, as he was not directly affected by the treaty’s provisions. In their view, the term “person aggrieved” in Article 102(2) should be construed narrowly, allowing only those with a direct, personal interest to bring constitutional challenges. They argued that the petitioner’s interest was too speculative and generalized to warrant judicial review.

The respondents further maintained that the petition was premature, as the treaty had not yet been ratified or implemented. They explained that under international law and constitutional practice, a treaty has no legal effect until ratified, and therefore, the petitioner could not claim to have suffered any injury requiring redress at that stage. The mere signing of the treaty, in their view, constituted a non-binding political act that did not invoke the court’s jurisdiction.

A critical part of the State’s argument revolved around the doctrine of the act of state. Treaty-making, they argued, is an executive function exercised in the realm of foreign affairs and national policy, and thus falls outside the jurisdiction of the judiciary. Citing established principles of international law and constitutional practice, they contended that courts have no authority to examine or invalidate such sovereign acts, especially when they involve negotiations with another state.

Finally, the respondents challenged the validity of the certificate issued under Article 103(2)(a) by the High Court Division. They claimed it was mechanically granted without judicial reasoning and therefore defective. Since such a certificate is a condition precedent to filing an appeal before the Appellate Division, the respondents argued that the appeal itself was procedurally incompetent and should be struck down.

Court’s Analysis:

The Appellate Division of the Supreme Court undertook a meticulous analysis of the constitutional questions raised in this case, particularly focusing on the procedural validity of the appeal, the petitioner’s standing, the scope of judicial review over treaties, and the constitutional implications of ceding territory.

Regarding the “defective certificate,” the court acknowledged that the High Court Division should have specified which Articles of the Constitution were involved for interpretation when granting a certificate under Article 103(2)(a). However, it also noted that the appeal was not incompetent because it involved significant constitutional questions On the issue of locus standi, the Court adopted a liberal interpretation of the term “person aggrieved” under Article 102(2). Although the petitioner was not a resident of the affected territory, the Court recognized the exceptional nature of the case. It noted that the matter involved a proposed change in the constitutional territory of Bangladesh and implicated the rights of every citizen, including the right to freedom of movement, residence, and franchise under Articles 36 and 122 of the Constitution. Therefore, the Court held that the petitioner’s standing should not be narrowly construed. It ruled that standing is a matter of judicial discretion, to be exercised based on the significance and context of the constitutional issue at hand.

On the question of whether the courts could review the treaty, the respondents invoked the doctrine of the act of state, arguing that treaties lie beyond the reach of judicial scrutiny. The Court firmly rejected this argument. It clarified that while the executive has the authority to negotiate and sign treaties, it cannot do so in a manner that circumvents constitutional limits. The judiciary, as the guardian of the Constitution, must intervene where treaties implicate citizens’ rights or alter the structure of the Republic. The act of state doctrine, the Court reminded, does not operate as a shield against accountability, especially in times of peace when the rights of citizens are at stake.

The Court also considered whether the petition was premature, given that the treaty had not yet been ratified. Here, the Court took a balanced view. It agreed that the treaty was not yet legally effective and thus could not be declared void at that stage. However, it acknowledged that the treaty’s terms posed an immediate constitutional concern, particularly because they pointed toward the potential cession of Bangladeshi territory without the required constitutional processes. The Court thus justified proceeding with a full analysis of the legal implications, even if the petition could not succeed on technical grounds.

Finally, the Court addressed the fundamental constitutional issue of whether the Delhi Treaty’s transfer of the southern half of Berubari Union No. 12 constituted a cession of Bangladeshi territory. It ruled that, despite the area not being under Bangladesh’s control, sovereignty over it was constitutionally established under Article 2(a) and recognized in international law. As such, the treaty did amount to a cession, which could not be effected through executive action alone. The Court affirmed that only Parliament, through a constitutional amendment under Article 142 and legislation under Article 143(2), has the authority to alter the Republic’s territorial boundaries.[9]

Decision:

The Appellate Division dismissed the appeal on the procedural ground that the Delhi Treaty had not yet been ratified. However, it emphasized that:

• Any cession of territory must follow the due constitutional process involving the Parliament.
• The Prime Minister cannot unilaterally alter national boundaries through executive action alone.

Significance:

The Kazi Mukhlesur Rahman judgment is a landmark in Bangladeshi constitutional law. The Court held that cession of national territory via treaty requires a constitutional amendment under Article 142 and legislation under Article 143(2), reinforcing parliamentary supremacy. It adopted a liberal interpretation of locus standi, allowing citizens to challenge executive actions implicating fundamental rights and national sovereignty. The Court also rejected the “act of state” doctrine, affirming judicial review over executive decisions in peacetime. The ruling directly led to the Third Constitutional Amendment in 1974[10] and laid the foundation for public interest litigation (PIL) in Bangladesh’s legal framework.

Conclusion:

The decision in Kazi Mukhlesur Rahman v Bangladesh & Another reinforced the supremacy of the Constitution by affirming that any cession of territory requires both a constitutional amendment and legislative approval. It clarified the limits of executive power in treaty-making and expanded the interpretation of locus standi in matters of public interest. The case also rejected the blanket application of the act of state doctrine, setting a precedent for judicial scrutiny of executive actions that impact constitutional rights and national sovereignty.

Reference(S):

Cases:

• Kazi Mukhlesur Rahman v Bangladesh (1974) 26 DLR (AD) 44

Legislation:

• Constitution of Bangladesh, art 2(a)
• Constitution of Bangladesh, art 36
• Constitution of Bangladesh, art 102(2)
• Constitution of Bangladesh, art 103(2)(a)
• Constitution of Bangladesh, art 142
• Constitution of Bangladesh, art 143(2)
• Constitution (Third Amendment) Act, 1974

Treaties and Agreements:

• Delhi Treaty (1974)
• Mujib-Indira Treaty (1974)
• Noon-Nehru Pact (1958)

[1] Kazi Mukhlesur Rahman v Bangladesh (1974) 26 DLR (AD) 44

[2] Delhi Treaty (1974)

[3] Noon-Nehru Pact (1958)

[4] Constitution of Bangladesh, art 2(a)

[5] Constitution of Bangladesh, art 142

[6] Constitution of Bangladesh, art 143(2)

[7] Constitution of Bangladesh, art 103(2)(a)

[8] The Constitution of the People’s Republic of Bangladesh 1972, arts 2(a), 36, 102(2), 103(2)(a), 142, 143(2).

[9] n8

[10] Constitution (Third Amendment) Act, 1974