P L D 1993 Karachi 93 (PLP)

SYED HAIDER ALI PIRZADA, J.-The petitioners in the above petition have prayed for the following reliefs:-- (a) quash the letters/orders dated 14-1-1989 and 19-12-1989 and the relevant proceedings/orders of the respondent No.2 on which these are based and even of respondent No.1 if such orders originate from it; (b) direct the respondents Nos3 to 5 to perform their functions in respect of Afghan transit goods in terms of existing agreement and disregard to letters dated 14-1-1989 and 9-12-1989; (c) further direct respondents to clear the stock involved in this petition for immediate transit to Afghanistan; (d)grant any other more appropriate relief in the circumstances of the case; (e) direct issuance of delay detention certificate; and (f)grant costs." The facts leading to the filing of the above petition are that the petitioners in the course of their business placed orders for import of tyres of the Indian origin and established Letters of Credit on 15-9-1988 for use and consumption in Afghanistan. About 18 consignments of such tyres consisting of 19,690 reached Karachi port on various dates between 1-1-1990 to 27-3-1990. The balance quantity of tyres are reported to be ready for shipment. The details of the consignments with the dates of Bills of Lading, IGM and Bins of Entry are given in para 1 of the petition. All the said consignments were imported for use in Afghanistan and were notified as the goods in transit. It is the case of the petitioners that Customs Authorities at Karachi, however, refused clearance of the said consignments on the basis of a letter, dated 19th December 1989 allegedly received at the Customs House, Karachi on 1-1-1990 whereby the transit facility in respect of tyres for which letters of credit were opened on or before 15-12-1988 but had subsequently been amended, was discontinued. The letter dated 19-12-1989 was apparently issued in order to give effect to an earlier letter dated 14-1-1989 of the Central Board of Revenue purportedly issued in order to stop smuggling back to Pakistan of tyres and tubes going to Afghanistan in transit. The petitioners have filed the above petition and prayed to quash the letters/orders dated 14-1-1989 and 19-12-1989. The respondents filed parawise comments contending that the balance quantity of tyres ready for shipment abroad, transit facility pertaining to tyres could not be allowed in view of public notice issued by the Customs House, Karachi dated 27-7-1990 vide No.SI/Misc./16/90-TG in pursuance of Board's Letter C.No.3(11)Up/83, dated 18-7-1990. It is contended on behalf of the respondents that the Government after considering the misuse of Afghan transit goods smuggled from Afghanistan into Pakistan, imposed the present condition of withdrawing transit facility of tyres. ' We had allowed the petition and quashed the impugned letters/orders dated 14-1-1989 and 19-12-1989 vide judgment dated 24-3-1992. The Government of Pakistan and 3 others being aggrieved against the above judgment, filed petition for Leave to Appeal before the Honourable Supreme C ourt. The petition for Leave to Appeal was converted into regular appeal and was disposed of in terms of the following order:-- "The learned Deputy Attorney-General at the hearing of appeal contended before us that section 16 of the Customs Act was not applicable. in the present case as the cases of I goods in transit to Afghanistan were governed under section 129 of the Customs Act. Mr. Khalid Ishaque, the learned counsel for the private respondents conceded that section 16 of the Customs Act was not applicable in the instant case and as such the order of the High Court of Sindh declaring the 2 impugned letters as not valid and without lawful authority being violative of section 16 of the Customs Act .is not sustainable in law. Mr. Khalid Ishaque, the learned counsel for respondent, however, contended that the learned Judges of the High Court neither examined the merit of case in the light of section 129 of the Customs Act nor they considered the effect of the Afghan Transit Trade Agreement, 1965 dated 2-3-1965 executed between the Government of Islamic Republic of Pakistan and Government of Kingdom of Afghanistan for regulation of traffic in transit. Mr. Ikram Ahmed Ansai the learned Deputy Attorney-General conceded to the position that the learned Judges of the High Court neither considered the effect of section 129 of the Customs Act nor took into consideration the terms of the treaty agreement between the Government of Islamic Republic of Pakistan and Government of Kingdom of Afghnistan. Both the learned counsel agree that the case may be remanded to the High Court to re-determine the validity of the 2 letters in the above petition in the light of the above submissions of the parties. We, accordingly, by consent, accept this appeal, set side the order of High Court dated 24-3-1992 and remand the case with the direction that the petition may be re-heard and disposed of in terms of the above observations." We have heard Mr. Khalid M. Ishaque, learned counsel appearing for the petitioners in support of petition, Mr. Ikrani Ahmed Ansari, learned Dy A.-G. appearing for the respondents Nos.1 to 4 and Mr. Zahiruddin Khan, learned counsel appearing for the respondent No.4 We shall first examine if there is any mandate of international law or if the rules of international law afford us any guidance and if such mandate or guidance is perceptive under Pakistan Law. Two questions arise for our consideration. Firstly, whether international law is, of its own force, drawn into the law of the land without the aid of a municipal law and, secondly, whether so drawn, it overrides municipal 'law in case of conflict. It has been said in England that there are two schools of thought, one school of thought propounding the doctrine of incorporation and the other, the doctrine of transformation (per Lord Denning M.R. in Trendtex Trading Corpn. v. Central Bank of Nigeria ((1977) 1 AER 881). According to the one, rules of international law are incorporated into the law of the land automatically and considered to be part of the law of the land unless in conflict with an Act of Parliament. According to the other, rules of international law are not part of the law of the land unless already so by an Act of Parliament, judicial decision or long established custom. According to the one, whenever the rules of International law changed, they would result in change of the law of the land along with them, without the aid of an Act of Parliament. According to the other, no such change would occur unless those principles are accepted and adopted by the domestic law. Lord Denning who had once accepted the transformation doctrine without question, later veered round to express a preference for the doctrine of incorporation and explained how Courts were justified in applying modern rules of international law when old rules of international law changed. in fact, the doctrine of incorporation, it appears, was accepted in England long before Lord Denning did so. Lord De i himself referred to some of old cases. In West Rand Central Gold Mining Co. v. The King (1905) 2 KB 391 = Time Law Reports Volume XXI (1904-1905) 562, the Court said:-- "It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country and that to which we have assented along with other nations in general may properly be called international law and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant." Hersch Lauterpacht in International Law Collected Papers (General Works) refers to the position in Germany, France, Belgium and Switzerland. He also referred two German cases in this connection and quoted what a German Court said to meet an argument that the role of customary internal law conflicted with Article 24 of the German Code of Civil Procedure. The Court had said (page 223) that "The legislature of the German Reich did not and could not intend any violation of generally recognized rules of international law, when enacting Article 24 of the Code of Civil Procedure. Lauterpacht refers to another German case where the argument that there ought not be a direct recourse to the law of nations except in so far as there has been formed a German Customary Law, was rejected with the statement (page 223) that "the contention of the creditor that international law is applicable only in so far as it has been adopted by German Customary Law, lacks foundation in law. Such a legal maxim would, moreover, if generally applied, lead to the untenable result that in the intercourse of nations with one another, there would obtain not a uniform system

international law

but a series of more or less diverse municipal laws". He summarises the position at page 227 as under:-- "While it is clear that international law may and does act directly within the State, it is equally clear that as a rule that direct operation of international law is within the State subject to the overriding authority of municipal law. Courts must apply statutes even if they conflict with international law. The supremacy of international law lasts, pro foro interno, only so long as the State does not expressly and unequivocally derogate from it. When it thus prescribes a departure from international law, conventional or customary, Judges are confronted with a conflict of international law and municipal law and, being organs appointed by the State, they are compelled to apply the latter." We are of the view that nations must march with the international A community and the municipal law must respectrules of international law, even as nations respect international opinion. The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted Legislatures in making laws, may not be subjected to external rules except to the extent legitimately accepted by the constituted Legislatures themselves The doctrine of incorporation also recognizes the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament, comity of nations and municipal law must prevail in case of conflict. National Courts cannot say "yes" if Parliament has said "no" to a principle of international law. National Courts will endorse international law but not if it conflicts with national Law. National Courts being organs of the National State and not organs of international law, must perforce. apply national law if international law conflicts with it. But the Courts are under an obligation within the legitimate limits, so to interpret the municipal statute as to avoid confrontation with the comity of nations or the well-established principles of, international law. But if conflict is inevitable, the latter must yield. The proposition has been well established. In Bloxam v. Favre (1883) 8 P.D. 101 Sir James Hannen approved the statement of Sir Lenon Maxwell on Interpretation of Statutes (page 107) that "every statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law." Latham, C.J. in politics v. The Commonwealth, 70 CLR 60 said:-- "It must be held that Legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity. The question, therefore, is not a question of the power of the Commonwealth Parliament to legislate in breach of international law, but is a question whether in fact it has done so." In Halsbury's Laws of England (4th Edition), Volume 44, para.908 at page 559, it is stated that "there is a presumption that Parliament does not assert or assume jurisdiction which goes beyond the limits established by the common consent of nations, and, provided their language admits, statutes are to be interpreted so as not to be inconsistent with the comity of nations or with the established principles of international law". But this principle applies only where there is an ambiguity and must give way before a clearly expressed intention. It is further stated that "if statutory enactments are clear in meaning, they must be construed according to their. meaning even though they are contrary to the comity of nations or international law".