P L D 1956 Dacca 119 (PLP)

The principle underlying the immunities was expressed by Chief Justice Marshal in his very illuminating judgment in The Schooner Exchange v. M. Faddon and others (7 Cranch 116 (Fenwick Cases on International Law 326)) " The jurisdiction of Courts is a branch of that which is possessed by the nation as an independent Sovereign power. " The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it; deriving validity from an external source, would imply a diminution of its own Sovereignty to the extent of the restriction, and an investment of that Sovereignty to the same extent in that power which could impose such restrictions. " All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced upon to the consent of the nation itself. They can flow from no other legitimate source. " This consent may be either expressed or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood not less obligatory. The world being composed of distinct Sovereignties, possessing of equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by, an interchange of those good offices which humanity dictates and its wants require, all Sovereigns, have consented to a relaxation in practice, in cases under certain peculiar circumstances of that absolute and complete jurisdiction within their respective territories which Sovereignty confers. " This perfect equality and absolute independence of Sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every Sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation:- The term " exterritoriality " is thoroughly inconsistent with the true nature of the immunities and is misleading. They arise out of a background of national Governments, who recognise the Sovereignty of each other, and are necessary to facilitate dealings between them as independent Sovereign States. They rest on mutual consent and not on any right of exterritoriality, and their enjoyment is afforded not by the sacrifice of Sovereignty but by voluntary waiver of jurisdiction in consideration of a similar waiver on the part of the other State. Having discussed the principle underlying the privileges, which one Sovereign State enjoys in the territory of another, I have next to consider whether a private merchant vessel and its crew and contents are within the ambit of this principle. My conclusion is that they are not. In The Parliament Belge (L R 5 P H 197), after reviewing many cases, including The Schooner Exchange v. Faddon and others, the Court said: " The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every Sovereign authority, and of the international comity which induces every Sovereign State to respect the independence and dignity of every other Sovereign State, each and every one declines to exercise by, means of its Courts, any of its territorial jurisdiction over the person of any Sovereign or Ambassador of any other State or over the public property of any State which is destined to public use, or over the property of any Ambassador, though such Sovereign, Ambassador, or property be within its territory, and, therefore, but for the common agreement, subject to its jurisdiction ". Smith (The Law and Custom of the Sea, 2nd Ed., p. 26) has condensed it into a formula: " The true basis of the immunities lies in the principle that one Sovereign State will not assert any coercive jurisdiction over the public agencies of another which are within its territory by mutual consent ". The words "public agencies" make it clear that the doctrine of immunity has no application to private individuals or their properties. Their position has been stated with utmost clarity in the Schooner Exchange. "The preceding reasoning, has maintained the propositions that all exemptions from territorial jurisdiction must be derived from the consent of the Sovereign of the territory; that this consent may be implied or expressed; and that when implied, its extent must be regulated by the nature of the case, and the views under which the parties requiring and conceding it must be supposed to act. "When private individuals of one nation spread themselves through another as business or caprice may direct, ming ling indiscriminately with the inhabitants of that other or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the Government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign Sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are bound, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption ". I may state in this connection that even in the sphere of public agencies, where the principle applies, there is a growing opinion shared by most of the countries and the business world that the principle of immunity should not extend to public vessels engaged in commercial undertakings. [Smith: The Law and Custom of the Sea, p. 32 ; Brierly ; The Law of Nations, p 179 ; Compania Naviera Vascongado v. S. S. Cristina (1938 A C 485 (521))]. The reason is that the doctrine of immunity was developed at a time when States normally confined their activities to political and military matters. In recent years national trading has become so common that their exemption from the jurisdiction of the national Courts sometimes works gross injustice. It is abundantly clear that a private merchant vessel of a foreign country and its crew and contents are not exempt from the jurisdiction of the Courts of this country. It should be observed that the petitioners have mis conceived their position. They are subjects of Pakistan. By reason of its personal supremacy this State exercise jurisdiction over its subjects wherever they may be. If they are in a foreign country, they become also subject to the jurisdiction of the Courts of that country for the time being ; but they continue to be subject to the jurisdiction of their own country. There is nothing wrong or unjust in this, for the nationals of a State, wherever they go, enjoy the protection of their own Government, and it is quite right that they should continue correspond ingly to be subject to its jurisdiction. The act complained of against the petitioners, is alleged to have been done by them in Pakistan. The fact that they committed it in or by using a merchant vessel of a foreign country, or as servants of, or in alliance with, a foreign Company, does not entitle them to any exemption from the jurisdiction of the Courts. It is next contended that the facts alleged do not constitute any offence. The argument is that as the goods were not landed, there was no importation. It is said that to constitute importation there must be landing. I find no authority for this view and none indeed placed before me. In Cunard Steamship Co., Ltd., Etal v. Mellon, Secre tary of the Treasury, Etal it was observed that importation is to be taken in its ordinary sense. " Importation ", says the learned Judge, "in a like sense, consists in bringing an article into a country from the outside. If there be an actual bringing in it is importation regardless of the mode in which it is effected. Entry through a Custom house is not of the essence of the act ". Section 2 (c) of the Import and Export (Control) Act of 1950 lays down that "import" and "export" mean respectively bringing into, and taking out of, the Provinces or the Capital of the Federation, or any acceding State by sea, land or air. What is essential is the bringing into the country. A commodity is brought into the country, if it is brought into its land or into its rivers, for the rivers are as much part of this State as its lands are. To constitute importation by river, it is not necessary that goods should be put on land. In the ship's book and the manifest her destination is shown as Jagannath Ghat to Narayanganj‑Dhubri. Jagannath Ghat and Dhubri are both in India. Mr. Murshed has laid considerable stress on this fact and has contended that the vessel was proceeding from India to India, and that, as such, there was no importation of any goods into this country. But the real question is not what was the desti nation of the vessel; the real question is what was the destination of the 1,626 bags of salt which were not accounted for in the ship's papers, nor mentioned in the manifest. This salt was not meant for anybody's personal consumption. The quantity itself makes that clear. There can be hardly any doubt that it was. meant for sale. The question is : sale to whom and where? The obvious answer is : to an undisclosed accomplice or any customer, wherever available, either in this country, or outside. True if the manifest is believed, the vessel, was going to Dhubri ; but that is no proof that the salt, which is the subject‑matter, of this case, was also going there. The vessel had another destination also, namely, Narayanganj, and the significant fact is that, while the purpose of going to Dhubri is disclosed in this ship's papers, the purpose of going to Narayanganj is not. Two things are concealed: One is the purpose of going to Narayanganj and the other is the destination of the salt. Are these concealments pur poseless ? Is there no reason to think that they are inter related ? I do not see how it can be said on the materials now before us that there has been no importation. The salt was not in innocent passage. The concealment of their destination makes this evident. They were meant for sale either to undisclosed accomplices or to customers, wherever available, in this country or outside. Now if goods are brought into this country for sale, should customers be available, it constitutes their importation into this country, and it makes no difference that they are intended to be carried beyond the country, in ‑case no customer is avail able here. That such is not the case is not clear to me, and I do not think that the exercise of inherent power to quash the proceeding is warranted on the materials now on record. The Rule must be discharged. ISPAHANI, J.‑I agree that there is no substance in this Rule. The Rule must be and is discharged. K. B. A./M. S. Rule discharged.