The Supreme Court of Pakistan rendered two judgements recently that included substantial questions of international law: one was the case of Houbara bustard that had excited a lot of public interest and discussion, and at the heart of it was a jurisprudential question touching upon the area of the Public International Law; the other case related to a suit for succession rights of a property that was situated in the UK, and the question on which it hinged was from the domain of the area of the international law styled as the Private International Law (or the Conflict of Laws, as a conventional Oxford University Professor of Law would label it!).
The write-up will inform on the facts of the two cases briefly and then would touch upon the propositions of international law that came under discussion in each of the cases.
1. Houbara Bustard Case
Houbara bustard is a small migratory bird that travels to Pakistan from cold regions of Central Asia in winters. The bird is in Pakistan for few months and it is during this time that it becomes part of hunting adventures. The government issues licences to Arab royalty to hunt the bird. The legality of the licences (which are issued by the provincial governments) was at the nub of the litigation.
The facts leading to the litigation were that in 2014, the Government of Sindh while using its discretion under the Sindh Wildlife Protection Ordinance 1972, notified Houbara bustard as a ‘gaming animal’ instead of as a ‘protected animal’. This change of status from ‘the protected to gaming animal’ prompted citizens to challenge the notification in the Sindh High Court (SHC). The SHC struck down the notification. Alongside the SHC, the Balochistan High Court (BHC) also passed a judgement that was similar in effect to that of SHC. On appeal to the Supreme Court of Pakistan, the then Chief Justice Jawwad S. Khawaja upheld the decisions of the Sindh and Balochistan High Courts. The judgement was unanimous as JJ Dost Muhammad and Qazi Faez Isa, other members of the bench, agreed with the CJ. The judgement is well written and besides the four provincial laws on the subject, the federal law, the international treaties of the Convention on International Trade in Endangered Species of Wild Flora and Fauna 1973 (CITES), the Convention on Migratory Species of Wild Animals 1979 (CMS) and the International Union of Conservation of Nature (IUCN) Red List of Threatened Species were referred to. The most relevant reference (in connection with the instant write-up) was to Sections 58 and 59 of the Balochistan Wildlife Protection Act, 2014 that linked the national law to the international treaties of CITES and CMS. The judgement also relied on injunctions of the Quran that talk about the sanctity of nature. The CJ Jawwad S. Khawaja quoted Shah Abdul Latif, the famous sufi poet of Sindh, who said:
“The birds in flocks fly,
Comradeship they do no decry,
Behold, among the birds there is more loyalty
Than among us, who call ourselves humanity.”
Within four months of the judgement, a review was filed in the Supreme Court of Pakistan and a larger bench comprising Chief Justice Anwar Zaheer Jamali and four other judges reviewed the judgement. The reasoning of the review judgement was that there was an apparent error of law in the earlier judgement. The review judgement was authored by Justice Mian Saqib Nisar who examined the law in detail. Justice Qazi Faez Isa wrote a dissent, premising his disagreement on the reopening of the case in review jurisdiction. The matter is still open as the review judgement has ‘set aside’ the earlier judgement, and directed the office of Registrar to fix the case for hearing afresh.
Throughout the case, there were pivotal jurisprudential questions relating to the Public International Law, which were not considered by the court. In the interest of brevity and certitude, the questions are framed thus:
1. What is the procedure in Pakistan of giving legal effect to its international obligations undertaken by it through international treaties?
2. What is the implication of a provision in a provincial legislation (in this case Balochistan) that undertakes to give legal effect to treaty obligations? How this is going to work in a federation, where the federal government, not the provincial government, bound itself through formal processes?
3. What is the legal scope of applicability of the two treaties (CITES and CMS)? How the two complement each other or differ in applicability?
4. How, under the Public International Law, the IUCN Red List is prepared? Is it a manifestation of the international comity that entered into agreements/treaties, or is it based on the executive authority of the officials working in the secretariat of international organizations? What is the legality of the decisions of international executives?
5. How is the conservation status of a species determined under international law?
The above-stated questions beg research and legal analysis for clarity and for certainty. It is hoped that in the next round of hearing, these questions will be considered by the Court to set precedent for posterity to seek guidance from. The case is titled as the Government of the Punjab etc versus Aamir Zahoor-ul-Haq and others.
2. UK Property Case
The case related to succession rights of the parties with respect to an immovable property that was situated in the UK whereas the parties lived in Pakistan. The civil court declined to exercise its jurisdiction as the property was not in Pakistan, hence, it was out of its territorial jurisdiction. The appellate court and the High Court agreed with the civil court. The matter came in appeal to the Supreme Court and it held in its judgement that the civil court was right in not taking up the case as the extra-territorial jurisdiction of the courts in Pakistan did not extend to immovable properties situated out of its territorial jurisdiction. The judgement was authored by Justice Mian Saqib Nisar and the matter was heard by a three-member bench of the august court. Khalid Anwar and Makhdoom Ali Khan, Senior Advocates Supreme Court of Pakistan, assisted the court as amicus curiae. The reasoning provided by the court is elaborate. At the outset, it examined the civil procedure code of Pakistan on the issue. Later, it considered the international law on the point and held that the matter related to the Private International Law. It held that the movable property abroad will be subject to the rule of lex domicilli (law of the domicile of the person) and the immovable property abroad will be subject to the rule of lex situs (law of the venue). The court invoked the principles of the Private International Law by quoting from Ian Brownlie’s Principles of Public International Law. Ian Brownlie observed:
“… a state in normal circumstances maintains a system of courts empowered to decide civil cases and, in doing so, prepared to apply private international law where appropriate in cases containing foreign element.”
The case was titled as Muhammad Ramzan (decd) through L. Rs. etc versus Nasreen Firdous etc.
For those who tend to question the existence of the international law, and its applicability to Pakistan may find the judgements informative and indicative of the fact that international legal order and the national legal order do interact quite frequently.