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Petitioner: HER HIGHNESS MUNAWAR JAHAN BEGUM OF JUNAGADH VS Respondent: CROWN
P L D 1952 Federal Court 120
P L D 1952 Federal Court 120
(Appellate Jurisdiction)
Before Abdul Rashid, C. J., A. S. M. Akram and A. R. Cornelius, JJ.
HER HIGHNESS MUNAWAR JAHAN BEGUM OF JUNAGADH‑Appellant
versus
CROWN‑Respondent
Criminal Appeal No. 7 of 1952, decided on 4th June, 1952
(On appeal from the judgment and order of the Chief Court of Sind at Karachi, dated 27th March 1952, in Criminal Miscellaneous No. 54 of 1952).
Foreign Sovereign-----
----‑Status to be determined only on infor mation supplied by appropriate Ministry of Government of Pakistan‑No other facts or documents may be considered (Per Cornelius, J. In proper cases some inquiry advisable‑Nawab of Junagadh, held, not foreign sovereign.
The question whether the Nawab of Junagadh is a foreign sovereign so far as Pakistan is concerned can be determined only on the information supplied by the appropriate Ministry of the Government of Pakistan and no other facts or docu ments can be taken into consideration in determining the status of the Nawab of Junagadh.
(Per Abdul Rashid, C. J.)‑The information supplied by the Government of Pakistan is conclusive on the subject. It must be held, therefore, that the Nawab of Junagadh is not a foreign sovereign. This question having arisen in the Courts in 1952, it is not open to us to determine this question on the interpretation sought to be placed on the Instrument of Accession executed by the Nawab of Junagadh in September 1947 and accepted by the Governor‑General of Pakistan.
The Nawab of Junagadh by entrusting the subject of External Affairs to the Government of Pakistan lost all international status and cannot, while in Pakistan, claim immunity from civil and criminal processes on the ground that he is a foreign sovereign. The State of Junagadh is now a part of the Federation of Pakistan, and all external sovereignty of the Units constituting the Federation has been absorbed by the Federal State, thus depriving the member states of their international status.
The Charkieh Law Rep. 4 A 8c E 59 ; Duff Development Company Limited v. Government of Kelantan (1924) 1 K ,B 797 ; The Republic of Spain and S. S Arantzazu Mendi (1939) A C 256 rel.
(Per A. S. M. Akram, J.)‑If a foreign Government or its sovereign is not recognised by the Government of a particular country, the Courts of that country will not recognise such foreign Government or its sovereign.
The statement by the Foreign Office relating to the question whether a foreign State or Government has been recognised is conclusive and final.
Aksionairnoys Obschestvo A. M. Luthen v. James Sagor & Co, (192L) 3 K B 532 ; Duff Development Co. v. Govern ment of Kelantan (1924) A C 797 at 814 rel.
A sovereign who is not a foreign sovereign is not entitled to rights and privileges suggested by the International Law.
Mere proof of status as a foreign sovereign is not sufficient to attract the rights and privileges of the International Law because it is further necessary to show (i) what actually the International Law is upon the subject, and (ii) whether it is recognised by the State in which it is sought to be enforced.
Whatever may be the International Law with regard to the question of immunity in capital crimes, the correct exposition of it seems to be that it cannot have any force or effect in any particular State unless the Government of that State assents to or recognises it. It is manifest that as none of the sovereign States will allow a superiority in the others, so neither can dictate or prescribe, and kind of law 'for the rest. The International Law, therefore, which originates "in the practice and usage long observed by civilised nations in their relations towards each other or in express international agreement" is given effect to by the Courts of Municipal Law only in so far as it is recognised either expressly or impliedly by the State from which those Courts derive their own jurisdiction and authority.
Oppenheim : International Law 6th (1947) Edn., Vol. I, p.678, Weste Rand Central Gold Mining Company v. Rex (1905) 2 K B 391 at p. 406 ref.
(Per Cornelius, J.)‑It is accepted in the practice of the British Courts that, when faced with a certificate of sovereignty, it is not open to a Court to examine other evidence in order to invalidate this certificate ; the certificate furnishes conclusive evidence upon which the Court must act. Yet instances are not wanting in the British case‑book perhaps the Kelantan case is a fair example‑where, despite the existence of patent drawbacks on the powers exercisable by a State, not only in the international sphere, but even in its domestic affairs, recognition of sovereignty has been accorded to it by the Government of the time, resulting in a complete denial of justice to the opponent, who was a subject.
Such cases appear to me to point to the advisability, in proper cases, of some enquiry by the Courts into the facts and circumstances underlying the claim of sovereignty, which has received Governmental recognition.
It is axiomatic that the expression `law' has no application in the case of unrestrained powers ; International Law only acquires meaning in relation to a society or comity of independent States, and therefore the first condition of its application in relation to a new State might, in the positivist sense, be thought to be the fact of recognition by other states already included in such society or comity. This view has been expressed by Oppenheim in his valuable work on International Law in the following terms :‑
"Through recognition only and exclusively, a State becomes an international person and a subject of Inter national Law".
A definition of the commencement of the existence of State has been attempted by J. L. Brierly, in his well‑known book "The Law of Nations", which appears to me to set out very satisfactorily the conditions necessary for the birth of a new international person. I quote from page 122 of the 4th Edition :‑
"A new State comes into existence when a community acquires not momentarily, but with a reasonably probability of permanence, the essential characteristics of a State, namely, an organised Government, a defined territory, and such degree of independence of control by any other State as to be capable of conducting its own international relations".
In actual fact each Indian State has, sooner or later, acceded to one or the other Dominion. No better proof is necessary or to be expected, having regard to the incidents of relations among States inter se, that such independent statehood as was acquired by the State of Junagadh by the lapse of British suzerainty, carried with it no "reasonable probability of permanence" and that from its inception, its expectation of life was what the event proved, namely, a merely momentary independent existence.
In this view of the matter; the references to sovereignty contained in the Instrument of Accession must be understood in a somewhat qualified sense. The acceptance of power in regard to external affairs qua the territory of Junagadh would not necessarily involve a concession that the Ruler possessed, much less that he exercised, any independent authority in the field of International Affairs.
As for the saving clause whereby the sovereignty of the Ruler of Junagadh was preserved, that too in my opinion must be understood in a strictly practical sense. It cannot, in any case, be construed as a concession that the Ruler of Junagadh wag to continue even after his accession to Pakistan, to enjoy the right to become an international person.
The sovereignty of the acceding States was intended to be merged in the sovereignty of the Federation.
The refusal of the Government of Pakistan to recognise the Nawab of Junagadh as a foreign sovereign is based on excellent grounds. No grounds appear for making any further enquiries on the subject.
M. Sleem, Senior Advocate, Federal Court, Hassanally A. Rahman, Senior Advocate, Federal Court (S. Khurshid Ahmad, Advocate, Federal Court With them) instructed by Muhammad Siddiq, Attorney, for Appellant.
Inamullah, Senior Advocate, Federal Court, (Sharif‑ud- Din, Advocate, Federal Court with him) instructed by Iftikhar‑ud‑Din Ahmad, Attorney.
Date of hearing : May 26th, 27th and 29th, 1952.
JUDGMENT
ABDUL RASHID, C. J.‑This is an appeal by special leave; preferred by Her' Highness Munawar Jahan Begum of Junagadh, from a decision of a Division Bench of the Chief Court of Sind, dismissing her application in the nature of habeas corpus.
The appellant was arrested on a charge of an offence under section 302 of the Pakistan Penal Code, committed in Karachi. She presented a bail application in the Chief Court of Sind, and in order to determine whether she should be granted bail, the following letter was addressed by the Chief Court to the Government of Pakistan
"Sir,
I am directed by the Hon'ble the Chief Judge to state that Her Highness Munawar Jahan Begum of Junagadh, having been arrested by the police in Karachi under a charge under sections 302 and 201 of the Pakistan Penal Code, has applied for bail on the ground, inter alia, that as a consort of a foreign sovereign she is entitled to immunity from arrest and from any other form .of criminal process provided by the domestic legislation of this country. I am therefore to enquire whether the Government of Pakistan recognises His Highness the Nawab of Junagadh as a foreign sovereign, and if so, whether the Government of Pakistan recognises Her Highness Munawar Jahan Begum as his consort".
The following reply was received from the Government of Pakistan :‑
"Sir,
With reference to your letter No. C/326, dated the 2nd February, 1952, I have the honour to state as follows :‑
(a) The Government of Pakistan does not recognize His Highness the Nawab of Junagadh as a foreign sovereign.
(b) The Government of Pakistan. recognizes Her Highness Munawar Jahan as His Highness' consort".
It will be noticed from the letter of the Chief Court of Sind and the reply received from the Government of Pakistan that immunity from arrest was claimed by the Begum of Junagadh solely on the ground that she was the consort of a "foreign sovereign".
The first question for determination, therefore, is whether the Nawab of Junagadh is a foreign sovereign so far as Pakistan is concerned. In my opinion, this question can be determined only on the information supplied by the appro priate Ministry of the Government of Pakistan and that no other facts or documents can be taken into consideration in determining the status of the Nawab of Junagadh. Reference may be made in this connection to the case of Mighell v. Sultan of Johore (a) 1894 1 Q B E 149. The following passage from the judgment of Lord Esher, M R may be reproduced with advantage :‑
"The first point taken was that it was not sufficiently shown that the defendant was an independent sovereign power. There was a letter written on behalf of the Secretary of State for the Colonies on paper bearing the stamp of the Colonial Office, and which clearly came from the Secretary of State for the Colonies in his official character. He is in colonial matters the adviser of the Queen, and I think the letter has the same effect for the present purpose as a communication from the Queen. It was argued that the judge ought not to have been satisfied with that letter, but to have informed himself from historical and other sources as to the status of the Sultan of Johore. It was said that Sir Robert Phillimore did so in the case of The Charkieh Law Rep. 4 A & E 59. I know he did ; but 1 am of opinion that he ought not to have done so : that when once there is the authoritative certificate of the Queen through her Minister of State as to the status of another sovereign, that in the Courts of this country is decisive. Therefore this letter is conclusive that the defendant is an independent sovereign".
This question was also considered by the House of Lords in the case of Duff Development Company Limited v. Govern ment of Kelantan. 1924 1 K B 797. The following observations of Lord Finlay have an important hearing on the question that we have to decide :‑
"The question put was as to the status of the ruler of Kelantan. It is obvious that for sovereignty there must be a certain amount 'of independence, but it is not in the least necessary that for sovereignty there should be complete independence . . . . We were asked to say that it is for the Court and for this House in its judicial capacity to decide whether these restrictions were such that the Sultan had ceased to be a sovereign. We have no power to enter into any such inquiry. The reply of the Colonial Office to Master Jelf on October 9, 1922, states that Kelantan is an independent State in the Malaya Peninsula and that the Sultan is the sovereign ruler, that His Majesty's Government does not exercise or claim any rights of sovereignty or jurisdiction over Kelantan, and that the Sultan makes laws, dispenses justice through Courts, and, generally speaking, exercises without question the usual attributes of sovereignty.
"In the face of this statement, it is hopeless to contend that the Colonial Office, by appending to its letter the agreements with Siam and with Great Britain, referred it to the Courts to decide upon these documents whether the Sultan was sovereign or not".
It was urged that the reference to the executive govern ment was only one of the methods of determining the status of the husband of the appellant, but that a reference to the Government concerned does not deprive this Court of jurisdiction to determine this question by examining other documents on the record such as the Instrument of Accession.
I find myself unable to accept this argument. Lord Finlay, in the judgment already referred to above, pointed out that even if the Colonial Office had sent certain documents to the Court together with its reply about the status of a foreign sovereign, it was not open to the Court to examine those documents for the purposes of determining the status of the person con cerned: The Court must regard the certificate as conclusive. This has been put even more explicity by Lord Atkin in his speech in the House of Lords in the case of Government of the Republic of Spain and S. S. Arantzazu Mendi 1939 A C 256. The following observations from the judgment deal effectively with the question at issue in the present case :‑
"The question is whether the Nationalist Government of Spain represent a foreign sovereign State in the sense that entitles them to immunity from being impleaded in these Courts . . .On the question whether the Nationalist Gov ernment of Spain was a foreign sovereign State Bucknill, J. took the correct course of directing a letter, dated May 25th, 1938, to be written by the Admiralty Registrar to the Secretary of State for Foreign Affairs, asking whether the Nationalist Government of Spain is recognized by His Majesty's Government as a foreign sovereign State. I pause here to say that not only is this the correct procedure, but that it is the only procedure by which the Court can inform itself of the material fact whether the party sought to be impleaded, or whose property is sought to be affected, is a foreign sovereign State. This, I think, is made clear by the judgments in this House in the Kelantan case. With great respect d do not accept the opinion implied in the speech of Lord Sumner in that case that recourse to His Majesty's Government is only one way in which the judge can ascertain the relevant fact. The reason is, I think, obvious. Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States ; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone".
I respectfully agree with the opinions expressed in the three judgments to which reference has been made above. In my opinion, the information supplied by the Government of Pakistan is conclusive on the subject. It must be held, therefore, that the Nawab of Junagadh is not a foreign Sove reign. This question having arisen in the Courts in 1952, it is not open to us to determine this question on the interpretation sought to be placed on the Instrument of Accession executed by the Nawab of Junagadh in September 1947 and accepted by the Governor‑General of Pakistan.
As the greater part of the argument of Mr. Sleem, on behalf of the appellant, was based on the terms of the Instru ment of Accession, I would like to state it as my opinion that the Nawab of Junagadh by entrusting the subject of External Affairs to the Government of Pakistan lost all international status and cannot, while in Pakistan, claim immunity from civil and criminal processes on the ground that he is a foreign sover eign. The State of Junagadh is now apart of the Federation of Pakistan, and all external sovereignty of the Units constitut ing the Federation has been absorbed by the Federal State, thus depriving the member States of their international status. The Nawab of Junagadh cannot, while in Pakistan, enjoy immunities which might be available to foreign sovereigns in Pakistan.
As I have held the certificate of the Pakistan Government to be conclusive on the question of the status of the Nawab of Junagadh, it follows that he cannot be regarded as a foreign sovereign. The question whether his consort can claim any immunities that might be available to a foreign sovereign in Pakistan does not arise.
The fining given above is sufficient to dispose of the appeal, It is, therefore, unnecessary for me to deal with a number of supplementary, questions that were raised by the parties at the time of the hearing. I would accordingly dismiss this appeal.
AKRAM, J.‑This is an appeal with our special leave obtain ed by the Senior Begum of Junagadh against an order of the Chief Court of Sind, rejecting her application under section 491 of the Criminal Procedure Code for her release from illegal custody and detention in connection with a charge for murder.
It appears that the appellant who is residing at present in Pakistan has been committed to the Court of Sessions at Karachi to stand her trial for causing the death of one of her maid‑servants within the Pakistan territory.
The ground urged in support of her application before the Sind Chief Court was that under the International Law she was immune from the jurisdiction of the Courts of Pakistan, being the consort of His Highness the Nawab of Junagadh. who possesses the status of a foreign sovereign.
It may be mentioned here that prior to the present applica tion under section 491 Cr. P. C. there was a previous application for obtaining bail for her and in connection there with the Chief Judge had made a reference to the Central Government of Pakistan asking for information on the follow ing points :‑
(a) Whether the Government of Pakistan recognises His Highness the Nawab of 'Junagadh as a foreign sovereign, and if so,
(b) whether the Government of Pakistan recognises Her Highness Munawar Jahan (appellant) as his consort.
The reply received in answer was :‑‑
(a) The Government of Pakistan does not recognise His Highness the Nawab of Junagadh as a foreign sovereign.
(b) The Government of Pakistan recognises Her Highness Munawar Jahan as His Highness's consort.
Acting on the basis of that information, the Chief Court of Sind dismissed the application under section 491, taking the view that as His Highness the Nawab of Junagadh was not a foreign sovereign he had no international status and conse quently no rights or privileges under the International Law.
It is the above dismissal of the application under section 491 Cr. P. C. which has given rise to the present appeal.
Counsel for the appellant contended before us :‑
(a) That the Court below was in error in acting solely upon the information supplied by the Central Government of Pakistan with regard to the status of His Highness the Nawab of Junagadh ; that whatever may have been the position prior to the creation of the two Dominions, subsequent thereto the British suzerainty lapsed and the Nawab of Junagadh, therefore, acquired full and absolute sovereignty in and over his State ; that his status, therefore, depended on a proper construction of the Instrument of Accession and not on any view of it taken by the Executive Authorities of the Dominion of Pakistan ; that it was for the Courts alone to construe and interpret the said Instrument of Accession.
As regards the above contention, the decided cases clearly lay down that if a foreign Government or its sovereign is not recognised by the Government of a particular country, the n Courts of that country will not recognise such foreign Govern ment or its sovereign. Aksionairnoys Obschestvo A. M. Luther v. James Sagor and Co. 1921 3 K. B. 532. Also that the state ment by the Foreign Office relating to the question whether a E foreign State or Government has been recognised is conclusive and final. Duff Development Co. v. Government of Kelantan 1924 A. C. 797 at 814.
Reference in this connection may also be made to Martin Wolff's Private International Law 1945 Edn., p.55, and Oppenheim's International Law 6th (1947) Edn., Vol. I, p 684.
But if in spite of the above decisions and authorities one is inclined to advert to the Instrument of Accession one would find that the Schedule thereto clearly shows that all external affairs of the State have been made over and entrusted to the Dominion of Pakistan.
I am therefore, of opinion, that the Chief Court of Sind, pursuant to the information furnished by the Government of Pakistan, acted rightly in not recognising the claim that His Highness the Nawab of Junagadh was a foreign sovereign.
(b) That the Court below was in error in holding that the sovereign should be a foreign sovereign before he can avail himself of the rights and privileges suggested by the Interna tional Law : inasmuch as mere sovereignty was quite sufficient 'to attract the principles of the International Law. Reliance in support was placed on the following passage in the case of Statham v. Statham and the Gaekwar of Baroda L R (1912) p. 92.
"Grotius (De Jure Belli ac Pacis) says unequal leagues are made not only between the conquerors and the conquered, but also between peoples of unequal powers even such as never were at war with one another. Grotius, Pufendorf, and VattA agree that in unequal alliance the inferior power remains a sovereign State. Its subjects or citizens owe allegiance only to their own sovereign. Over their disputes and internal dissensions the suzerain power as such has no jurisdiction. In short, the weaker power may exercise the rights of sovereignty so long as by so doing no detriment is caused to the interests or influence of the suzerain power. It follows that the inferior power must in all alliance with other States be controlled by its suzerain. Vattel says a weak State which in order to provide for its safety places itself under the protection of a more powerful one and engages to perform in return several offices equivalent to that protec tion, without, however, divesting itself of the right of government and sovereignty, does not cease to rank among the sovereigns who acknowledge no other law than the law of nations."
But the above observation does not seem to me to lend support to the contention that even ‑sovereigns who occupy a some what subordinate position are entitled to an international status and the rights and privileges of the International Law. All that it implies is that by surrendering some of their powers the sovereigns do not necessarily cease to remain a sovereign.
It may be interesting here to note that in the same report at p. 94 occurs the following passage :‑
"Several weak but troublesome princes succeeded in succes sion to the throne of Baroda, and in 1874 the then‑reigning Gaekwar was by order of the British Government brought to trial on a charge of attempting to poison the British resident at his Court. The trial was conducted before a mixed commis sion of eminent British officers and natives of the highest rank. A unanimous verdict was not obtained, and in the result the then Viceroy of India, Lord Northbrook, deposed the Gaekwar and appointed another member of the royal house of Baroda to reign in his place."
It is apparent that this was neither a judicial trial nor a judicial order, but I have referred to the proceeding merely to point out that if the real purpose of immunity from local jurisdiction is to maintain royal prestige and dignity how then that purpose can be served if the sovereign remains amenable to the jurisdiction of a political commission, though not of a judicial tribunal. The true position, therefore, seems to me to be that sovereigns of this class, who…
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