Extension Of The Rule Of Law

EXTENSION OF THE RULE OF LAW EXTENSION OF THE RULE OF LAW By ZAKA-UR-RAHMAN KHAN LODI, Advocate B.Sc. (Med.), M.A. (Eng.), M.A. (Poi. Sc.), D.LA., D.LS., LL.B., The term `act of State' has caused difficulty for the constitutional lawyers in its interpretation. Justice B. Z. Kaikaus has explained it thus: "It is true that the State, like the King, is sovereign. Its will is supreme and is not subject to any other will . . . . The executive Government is only a part of the machinery by which the functions of the State are carried on. It is the agent of the State for certain purposes. The powers which this agent exercises fall in two spheres. One is the sphere of action with regard to other States and subjects of other States. In this sphere the powers of the agent are not limited by any law and the act of the Government is the act of the State itself. The other sphere is the one where the Government acts in relation to the subjects of the State. Here the powers of the Government are circumscribed by law and its acts in so far as they exceed the power given by the law cannot be said to be the acts of the State itself for they are in violation of the law, which is the will of the State. Instead of being acts of the State, they are in direct disobedience to the will of the State, and the Courts, when they step in to enforce the law, carry out only the will of the State." (P L D 1960 Lah. 1073 at 1077). To elucidate further the nature of the act of State, the Supreme Court of India, has said that: "An act of State, is an arbitrary act, not based on law, but on the modern version of `might is right'." (A I R 1964 S C at p. 1045). In the leading case entitled Salaman v. Secretary of State for India (1906‑1 K. B. 613 at 639) it was expressed that: "An act of State is essentially an exercise of sovereign power, and hence cannot be challenged, controlled, or interfered with by municipal Courts. Its sanction is not that of law, but that of sovereign power, . . ." SOVEREIGN POWER To appreciate the expression `sovereign power', one has to revert back to the legal history of the East India Company. The `Dewani' was conferred on the East India Company in 1765 by the Moghul Emperor Shah Alam. Alongwith it came the fiscal administration, and‑ the administration of civil justice for the territory it covered. So some sovereign activities were added to the commercial activities of the Company. Even by the Charter Act, 1833 which directed the Company to abstain from trading did not cease its all commercial business because an exception was made as to such as might be carried on for the purpose of Government. The Indian War of Independence (1857) led to the extinction of the East India Company and the new administration of British India came to be vested in the Secretary of State for India in Council acting in the name of Her Majesty. In pursuance of the Government of India Act, 1858, all the powers and property of the East India Company were transferred to the British Crown. This fact gave rise to far‑reaching effects in the later legal history of Indo‑Pakistan. As seen above the erstwhile East India Company had a dual legal status, namely‑ (a) as a delegatee of sovereign powers; holding the Government of British India in trust for the British Crown (by virtue of the Charter Act, 1833), and (b) as a person indulging in commercial activities. The Secretary of State for India in Council succeeded to these two‑fold functions and powers of the East India Company, and by virtue of section 65 of the Government of India Act, 1858 could sue and be sued as could the erstwhile Company. The same position continued in the Government of India Act, 1915. Section 32(2) of this Act read as follows: "Every person shall‑ have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858, and this Act had not been passed." In Mata Prasad v. Secretary of State (A I R 1931 Oudh., 29‑D. B), sovereign functions of the Government were explained thus: "It is a settled rule of law that the Secretary of State for India in Council can only be sued in respect of those matters for which the East India Company could have been sued, since the Crown in charge of the present Government of India is only the successor to the East India Company. It is a matter of history that the said Company exercised different functions. It was partly a trading company with the rights and liabilities of an ordinary commercial body and it also exercised sovereign powers delegated to it by the Crown. In respect of its acts in the former capacity it could be sued, but for its acts in the latter capacity it could not . . It would thus be clear that the Secretary of State for India in Council cannot be sued in respect of acts done by the Government as a sovereign power. One of the functions of the Government in this country as a sovereign power is to take cognizance of offences coming to its knowledge and to order the trial of such persons in accordance with law .... In this case the plaintiff was accused of embezzlement and of having made a false report as to dacoity and was duly tried for tile same. He was found guilty and was convicted for the said offence by a duly constituted tribunal. The plaintiff is therefore in our opinion not entitled to sue . . . for damages in respect of the act complained of since such act was an act of the Govern ment in exercise of its sovereign power." In Peninsular and Oriental Steam Navigation Co. v. Secretary of State (1868‑69) 5 Bom. H. C. R. App. 1 (F. B.) Sir Barnes Peacock made the following obiter dictum: "There is a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them." This dictum of the learned Chief Justice has been criticised, and B. K. Mukherjea, J. observed: "Much importance cannot in my opinion be attached to the observa tion of Sir B. Peacock . . . . In that case the only point for consideration was whether in the case of a tort committed in the conduct of a business the Secretary of State for India could be sued. The question was answered in the affirmative. Whether he could be sued in cases not connected with the conduct of a business or‑ commercial undertaking was not really a question for the Court to decide." (A I R 1950 S C 22 at page 249, para. 122) Chagla, C. J. as he then was, was only prepared to accept the dictum of Peacock, C. J. by giving his own interpretation to it thus "If the learned Chief Justice was referring to sovereign acts as acts of State, then with very great respect the observations are correct and must be accepted." (A I R 1949 Bom. 277 at 286‑87). In Secretary of State v. Cockcroft (1916‑I L R 39 Mad. 351) where the plaintiff had been injured by the negligent leaving of a heap of gravel on a military road which he was using, it was held that the Government was not liable because the military road was not a private undertaking. Similarly, in a Nagpur case, the brief facts of which were that the area on both sides of a track was used as a private bombing ground by the military authorities. A grenade fired from a rifle failed to explode. There was no notice on the spot to warn passers‑by of the lurking danger. The metal object picked by the plaintiff was this `blind', which then exploded depriving the plaintiff' of a portion of his hand. He sued the Secretary of State for damages. Pollock, J. observed "The provision of facilities for bombing practice is a public duty undertaken by the State in order to provide training for the army. Such duties are not exercised by the State for its own emolument or benefit but for (he benefit and protection of the entire population; and‑ they are therefore acts undertaken in the exercise of sovereign powers .. . . . There is no question here of the exercise of powers conferred by statute." (A I R 1943 Nag. 287). For the sake of clarity, here it may be reiterated that, as seen above, the East India Company enjoyed what have been termed the `sovereign powers', and 'commercial powers'. Courts of British India drew out a further distinction between the sovereign power exercised under the law and that outside the pale of law. For instance in the leading case called 'The Tanjore Case' (7 M I A 476) the position was accepted that where the act complained of is an act which was professedly done under the sanction of municipal law, the circumstance that it was an act done by the, sovereign power or by the deputy of that power did not cause the ouster of Courts jurisdiction. In the famous 'Hari Bhanji's Case'. Sir Charles Turner, C. J., explained thus " .. the decided cases show that in class of acts which are competent to the Government a distinction taken is between those which lie outside the province of municipal law and those which fall within that law ; and that it is of the former only that in this country the municipal Courts in British India cannot take cognizance. Acts done by the Government in the exercise of the sovereign powers of making peace and war and of concluding treaties obviously do not fall within the province of municipal law, and though in the administration of domestic affairs the Government ordinarily exercises powers which are regulated by that law, yet there are cases in which the supreme necessity of providing for the public safety compels the Government to acts which do not pretend to justify themselves by any canon of municipal law. For the exercise of these powers the Government, though irresponsible to the Courts is not wholly without responsibility. Under the Constitution of England it is more or less responsible to public through the responsible ministers of the Crown." (1882 I L R 5 Mad. 273) Commenting on the above case, a Full Bench of the Madras High Court said: "It was held in that case that where an act complained of is pro fessedly done under the sanction of municipal law and in the exercise of power conferred by that law, the fact that it is done by the sovereign power, and is not an act which could possibly be done by a private individual, does not oust the jurisdiction of the Civil Courts." (I L R 7 Mad. 466 at 473‑F B) The above position of law was maintained under the Government of India Act, 1935. The section 176 of it was as follows "The Federation may sue or be sued . . . as the Secretary of State in Council might have sued or been sued if this Act had not been passed." In A I R 1949 Bom. 277 (287), Chagla, C. J., as he then was, distinguished between `sovereign act' and `act of State', and expressed thus: "An act of State is different fundamentally from an act of a sovereign authority. Its legal title is not any municipal law but the overriding sovereignty of the State. It does not deal with the, subjects of the State but deals with aliens or foreigners who cannot seek the protection of the municipal law. It is difficult to conceive of an act of State as between a sovereign and his subjects . ... In this case the Province of Bombay is justifying its requisition order under the Ordinance which is a municipal law, and therefore it cannot claim as a sovereign authority to be exempt from a municipal Court and cannot claim immunity from having to justify its act in a municipal Court." (Emphasis is added). As seen above this case was decided in 1949. But when the Constitution of India was enacted in 1950 there again was reversion to the old state of law under the East India Company. Article 300 of that Constitution lays down inter alia that: "The Government of India may sue or be sued . . . . and the Government of a State may sue or be sued . . . . in the like cases as the Dominion of India and the corresponding Provinces . . . might have sued or been sued if this Constitution had not been enacted." Another article of that Constitution continues in force the `Existing Law', which includes case law. (See A I R 1964 Cal. 396, para. 15) The position under the Indian Constitution was lucidly laid in 1954 by a Division Bench of the Patna High Court as follows: " . . . as regards liability to be sued the Secretary of State for India was and the present Government of India is in no way different from the old East India Company before the passing of the Government of India Act, 1958, and even now a plaintiff who comes forward with a suit of the nature which has been instituted . . . has to show that he had a cause of action against the East India Company if the case had arisen before 1858; and on the decisions there does not also seem to be any doubt that the Government of India cannot be held liable for wrongs committed by its servants while they were performing a statutory duty." (A I R 1954 Pat. 529 at 539). In A I R 1965 Andhra Pradesh 457, a Tahsildar in the discharge of the duties imposed on him under the Statute, viz., the Madras Revenue Recovery Act, for non‑payment of tax by the plaintiff effected the attachment of latter's immovable property in an illegal manner inasmuch as be followed the procedure laid for attachment of movable property, by which the plaintiff suffered great pecuniary loss. The learned counsel for the plaintiff-appellant urged that the immunity of the Government for torts committed by its servants in the exercise of sovereign powers must be confined only to the acts of State. The contention was repelled in view of the long catena of decisions from which the following principle was drawn out by the learned Judges: "The Government cannot be sued in respect of acts done by its servants in the exercise of its `sovereign powers' or `Sovereign Acts', e.g., the maintenance of a military road, or a national highway, or a hospital out of State revenue, as they are all acts done in the discharge of sovereign or Governmental functions. In the case of "Acts of State", i.e., acts done by a Government servant under the authority of the Government, with respect to a non‑resident foreigner, and which are Hot justiciable in the ordinary Courts of law also, the Government would not be liable, e.g., making of war or treaty, annexation of, property belonging to an enemy country or national. That is not because the act is one committed by the public servant in the exercise of sovereign powers, but because it is in respect of a non‑resident foreigner who cannot invoke the jurisdiction of the Courts of this country and for an act which is not justiciable in the municipal Courts. (See para. 31) PAKISTAN CONSTITUTIONAL LAW: In contradistinction to Art. 300 of the Indian Constitution, Art. 136 of the quondam Constitution of Pakistan laid that: "The Federal Government may sue and be sued by the name of Pakistan, and the Government of a Province may sue and be sued by the name of the Province." Art. 213 of our new Constitution surrenders the State sovereignity with respect to suability, thus: "The Central Government of. Pakistan may sue and be sued by the name of Pakistan, and the Government of a Province may sue and be sued by the name of the Province:" Therefore it is clear that the 1956 and 1962 Constitutions have dispensed with the limitations of suability with respect to the Secretary of State for India and the East India Company., This change is of very great importance for the citizens who have been put effectively under the Rule of Law. The learned counsel in A I R 1965 A P 457, strove unsuccessfully, because, in the words of the learned Judges: "equates the phrase `sovereign acts' with `acts of State'. The decisions cited above do not give any room for such an argument . . . . This contention has therefore, to be rejected". (See para. 37) What the counsel there did not achieve, has been now an accepted proposition under Pakistan law. Mr. Justice B. Z. Kaikaus spoke thus: "An argument was put forward that all acts of a Government which are not of such a nature that they can be performed by a private person are sovereign acts. A distinction was drawn between acts of State and sovereign acts and it was contended that although the acts of the Government may not be acts of State, they are sovereign acts and are not liable to be challenged. No authority was cited in support of the distinction between acts of State and sovereign acts, or for the proposition that acts which are not acts of State are not liable to be challenged in Courts. If the proposition was accepted, there would be no remedy at all against the acts of Government. The Government could realize any illegal tax, could seize any property or detain any person without legal sanction anti in fact could do any other act with impunity. The contention is an impossible one and hardly deserves serious attention." (P L D 1960 Lah. 1073 at 1078; see para. 8) Again in P L D 1964 Lah. 729 (D B), it was maintained that: " . . . the expression `sovereign act' has no application to cases where a Government deals with or acts in relation to its own subjects." Mr. Justice B. Z. Kaikaus had another occasion to point out in P L D, 1963 S C 627 (630) that: "It maybe stated, however, that there should be no dispute about the expression "sovereign act" being applicable only to acts committed in relation to other states or aliens and being inapplicable to a case where the Government is acting in relation to its own citizens. In the latter case the Government has authority to act only in accordance with the Municipal Law." Yet at another occasion in 1966 our Supreme Court through Mr. Justice B. Z. Kaikaus spoke thus: " Representative Governments too have been claiming that in some spheres they possess powers of action which are not subject to law. We are quite familiar with the expression "act of State". In pre‑Partition India and in Pakistan there have been a number of cases where a plea was taken on behalf of the Government that the action it took was an act of State and therefore not subject to the municipal law (which only means the law of the country) . . . . There undoubtedly is a sphere, Government action in which is not subject to law. Generally speaking the acts of the Government in relation to foreign affairs and defence are not subject to legal control. There is no law which governs the action of the Government when it deals with other Governments or prisoners of war or citizens of any enemy country. Even when it deals with foreigners outside Pakistan its action may not be subject to law." (P L D 1966 S C 1 at 52) Art. 2‑---1962 Constitution.---‑Article 2 of our new Constitution enshrines the constitutional right to the Rule of Law, not only for the citizens of Pakistan but also for all alien‑residents. Beyond fear of any genuine contradiction it can be said that it is an unparalleled and novel provision in the constitutional history of Indo‑Pakistan. It runs as follows: " 2.‑---(1) To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In Particular‑ (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) * * * * * (c) * * * * * Explaining the object of Art. 2, Justice Kaikaus observed thus: " let me state what I believe to be the object of Article 2. I have little doubt that its object was to negative any claim by the Government that it had inherent power to take action which was not subject to law or that it could deal with individuals in any manner which was not positively prohibited by law. Governments have frequently been making such claims." (P L D 1966 S C 1 at 52) CONCLUSIONS In Pakistan case‑law, the scope of Rule of Law has been extended by equating the terms `sovereign act' and `act of State'. The Rule of Law has been further extended by curtailing the scope of act of State in view of the enactment of Art. 2 of our new Constitution. It appears that now an act of State cannot be directed against alien or foreign subjects owing temporary allegiance to the State during their temporary stay in Pakistan. Although it is clear that there can be no act of State between the sovereign and his subjects, yet, can there be an act of State directed by the sovereign against his own subjects in times of war? Mirza Ali Akbar Khan, J. answers in the affirmative, as an obiter, in A I R 1934 Born. 277. Act of State is generally directed against a foreign territory but by incidental consequences of it, the citizens of the State concerned might be affected and that fact does not prevent the action to be called an act of State. (See Cook v. Sprigg L J R P C‑1899, 144).