Bangladesh and ors. Vs. Somboon Asavaham and others

Bangladesh and ors.(Appellants)

Vs.

Somboon Asavaham (Respondent) (in C. A. 82 of 1979)

Lee Mongkolnimite (Respondent) (in C. A. 83 of 1979)

Thai Ware Industry (Respondent) (in C.A. 84 of 1979)

Supreme Court

Appellate Division

(Civil)

JUSTICE

Kemaluddin Hossain, CJ

Fazle Munim, J

Ruhul Islam, J

K.M. Subhan, J

Badrul Haider Chowdhury, J

Judgment dated : Dec 4. 1979.

Lawyers Involved:

K. A. Bakr, Attorney-General with Sultan Ahmed, Deputy Attorney-General, and A. W.

Bhuiyan, Asstt. Attorney-General, instructed by B.Hossain, Advocate-on-Record—For the Appellants in all the appeals.

Asrarul Hossain, Senior Advocate, with A.M. Nooruddin Ahmed, Advocate, instructed by S. M. Huq, Advocate-on-Record—For the Respondents in all the appeals.

Civil Appeal Nos. 82, 83 & 84 of 1979.

(From the Judgment and order dated 15-3-79 passed by the High Court Division in writ petition Nos. 673, 674 and 850 of 1977).

JUDGEMENT

K. Hossain, CJ.—These three appeals were heard together as they were so heard in the High Court Division, which disposed of three Writ petitions in Writ jurisdiction, in which a common question of law of great public im­portance is involved. The matter relates to the capture of three Thai Fishing Trawlers within the territorial waters of Bangladesh and consequent order passed by the Customs autho­rities. The question is whether they were cap­tured within the territorial waters of Bangla­desh.

2. Facts are that the Bangladesh Navy captured three Thai Fishing Trawlers and they were handed over by the Navy to the Customs authorities at Chittagong, for necessary action. The Collector of Customs, Chittagong, con­fiscated the three Thai Fishing Trawlers along with fish found therein, under the Customs Act, 1969, read with the Import (Control) Act, 1950. The Trawlers are ‘Porsomboon’ ‘Mongkolnimite’ and ‘Thaiwareepiset’ of which the respon­dents are respective owners. The last mentioned one was seized by a gun boat of Bangladesh Navy on 19-11-76 at 21°10’N 890 14E when it was engaged in catching fish in a zone of the Bay of Bengal said to be the territorial waters of Bangladesh and the first two were seized by the same gun-boat of the Bangladesh Navy on 4-2-77 at 21°. 04N31 HE, and 21° 06’N 900 52’E respectively in the said territorial waters. The trawlers are said to have entered in the Bangladesh territorial waters without authority, caught fish and made attempt to smuggle the fish out of territorial waters of Bangladesh .The Master and crew of these trawlers were released. The fish seized along with the trawlers was confiscated by the Collec­tor of Customs under section 156(1) (9) and the trawlers confiscate under section 157 of the Customs Act, 1969 by orders, dated 16-2-77 and 23-8-77. The order of 16-2-77 was chal­lenged in a Revision before the Board of Re­venue but with no effect. Respondents chal­lenged the orders of confiscation mainly on the ground of lack of jurisdiction contending that the facts as stated by the Customs authorities even if admitted do not attract the mischief of the Customs Act or any other law in force in Bangladesh.

3. Several questions were raised before the High Court Division, but the learned Judges principally concentrated their attention on the question whether the Thai trawlers in­truded into the territorial waters of Bangla­desh. The view taken is that the trawlers were not within the territorial waters but they were within the economic zone. It has been held that the Customs waters and territorial waters were synonymous but as the trawlers were captured outside the territorial waters but within the economic zone, they were not triable or cognizable under the penal provision of the Customs Act, 1969, and whereas no rules have been framed under section 9(e) of the Territorial Waters and Maritime Zone Act, 1974, no action could be taken against the offending trawlers under this Act either.

4. We have heard the learned arguments from the Attorney General and the Counsel of the respondents Mr. Asrarul Hossain. To ap­preciate the rival contentions the grounds on which the leave has been granted may be sum­marised:

(i) Whether the respondents having alternative remedy by way of revision under the Customs Act against the order passed by the Collector of Customs the applications under Article 102 of the Constitution invoking the writ-jurisdic­tion of the High Court Division were maintainable.

(ii) Whether the High Court Division correctly construed the provisions of sec­tions 156 and 157 of the Customs Act re­garding the jurisdiction of the Customs Authority in confiscating the Trawlers on the charge of illegally fishing within the territorial waters of Bangladesh.

(iii) Whether the order of the High Court Division declaring the order of con­fiscation of the fishing trawlers by the Customs Authority illegal is based on true construction of the limit of territo­rial waters of Bangladesh.

(iv) Whether the Judges of the High Court Division were justified in passing the order declaring the order of the Cus­toms Authorities illegal without determin­ing the all important question of the limit of the territorial waters of Bangladesh.

Of the four grounds set out above, ground Nos. (ii) (iv) are interdependent and virtually dependent upon the decision as to the true con­struction of the ”territorial waters of Bangla­desh” and on the determination of this question all the three grounds of the leave order will be determined.

5. Both the customs authority and the High Court Division have assumed certain acts without determining it, namely, whether the three Thai trawlers were captured within the territorial waters of Bangladesh. Their view is that they were captured outside the ter­ritorial waters but inside the economic zone, a view which has been seriously challenged by the learned Attorney-General and it calls for a close scrutiny. We propose to deal with the question as it stands. The places from where the three trawlers were captured have been set out above and there is no dispute about them. A map prepared by the Bangladesh Naval Staff Officer (Operations) has been placed before us showing the spot from where the trawlers were captured and the places shown therein corres­pond to the places mentioned in the statement of facts. The question therefore is whether the trawlers were within the territorial waters of Bangladesh.

6. Mr. Asrarul Hossain wanted to argue that the territorial waters of Bangladesh and the Customs waters as defined in the Customs Act are two different concepts and extends to diffe­rent areas. This is a point which was not ac­cepted by the High Court Division. He has, however, reiterated the point but before enter­ing into the merits of his argument, we pro­pose to deal with the question as it stands on the undisputed facts on record. The point touches upon International Law, since three foreign fishing trawlers are involved and they have been captured from a place over which Bangladesh claims sovereignty. We are, however, relieved from entering into long discussion of diverse laws, convensions, rules and practices of International Law since there is a complete code provided by our Municipal law. It is well settled that where there is municipal law on an international subject, the national Court’s function is to enforce the municipal law within the plain meaning of the statute.

We are therefore to look into the relevant municipal laws on the subject.

7. First of all, in Article 143 (1) (6) of the Constitution of Bangladesh, it has been provi­ded that there shall vest in the Republic in ad­dition to any other land or property lawfully vested in it, “all lands, minerals and other things of value underlying the oceans within the territorial waters, or the ocean over the continental shelf of Bangladesh.” The Cons­titution has further provided that Parliament may from time to time by law provide for the determination of the boundaries of the terri­tory of Bangladesh and of the territorial waters and the continental shelf of Bangladesh. We have therefore a clear Constitutional mandate on the subject, and it says that Parliament shall have full legislative competence to legislate on the boundaries of territorial waters and other boundaries of Bangladesh.

8. Parliament passed a statute known as the Bangladesh Territorial Waters and Mari­time Zones Act (No. XXVI of 1974), wherein specific provisions have been made regarding conservation zone, contiguous zone, continen­tal shelf, economic zone and territorial waters. We are concerned with the provisions regard­ing territorial waters. This has been given in section 3 which includes 8 sub-sections. Sub­section (1) provides that Government may by notification in the official Gazette declare the limits of the sea” beyond the land territory and internal waters of Bangladesh which shall be the territorial waters of Bangladesh specifying in the notification the baseline from which such limits shall be measured and the waters on the landward side of which shall form part of the internal waters of Bangladesh. Sub-section (2) provides how the baseline is to be drawn where there is a single island, rock or a composite group thereof constituting the part of the terri­tory of Bangladesh. Sub-section (3) says that the sovereignty of the Republic extends to the territorial waters. Sub-section (4) says, no foreign ship shall, unless it enjoys the right of innocent passage, pass through the territorial waters. Sub-section (5) provides that foreign ship having the right of innocent passage thro­ugh the territorial waters shall, while exercising such right, observe the laws and rules in force in Bangladesh. Sub-section (6) speaks of sus­pension of innocent passage of any ship in spe­cified area for the security of the Republic. Sub-section (7) prohibits of passage of foreign warship through territorial waters except with the previous permission of the Government. Sub-section (8) empowers the Government to take measures for prevention of unauthorised passage of foreign ships or war-ships through the territorial waters of Bangladesh.

9. The government in the exercise of its powers conferred upon it by the section has issued notification defining the territorial waters and economic zone of Bangladesh and it may be set out in full:

“4130 THE BANGLADESH GAZETTE EXTRA 16, 1974. MINISTRY OF FOR­EIGN AFFAIRS.

Dacca the 13th April, 1974. No. LT-1/3/74. In exercise of the power conferred by “sub-section (1) of section 3 of the Territorial Waters and Maritime Zones Act, 1974 (Act No, XXVI of 1974), and in sup­ersession of any previous declaration on the subject, the Government is pleased to declare that the limits of the sea specified in paragra­ph 2 beyond the land territory and inte­rnal waters of Bangladesh shall be the territ­orial waters of Bangladesh.

2. The limits of the sea referred to in paragraph I, shall be twelve nautical miles measured and the baselines set out in para­graph 3 so that each point of the outer limit of the sea to nearest point inward on the base lines twelve nautical miles.

3. The baselines from which territorial waters shall be measured seawards are the straight lines linking successively the baseline points set out below:

Geographical Co-ordinates baseline point.

baseline point Latitude. Longitude.

No. 1 21° 12’00 “N 89° 06’45″E

No. 2 21° 15’00 “N 89°16’00″E

No. 3 21° 29’00 “N 89° 6’00″E

No. 4 21° 21’00 “N 89°55’00″E

No. 5 21° 11’03 “N 90°33’00″E

No. 6 21° 07’30 “N 9l°06’00″E

No. 7 21° 0’00 “N 91°56’00E

No. 8 20° 2P45 “N 92°17’30″E

No. LT-l/3/74-In exercise of the powers conferred by sub-section (1) of section 5 of the Territorial Waters and Maritime Zones Act, 1974 (Act No. XXVI of 1974), the Government is pleased to declare that the Zone of the high seas extending to 200 nautical miles measured from the baselines shall be the economic zone of Bangladesh.

By order of the President

FAKHRUDDIN AHMED.

Additional Foreign Secretary.

10. A reading of the section set out above clearly reveals that Bangladesh has in exercise of its sovereign right fixed the limits of the “territorial waters”. It confers the authority on the Government to fix the base­line and declare the limits of the territorial waters. The notification set out above gives in detail, in conformity with the powers con­ferred upon it by the Statute, the limits of territorial waters of Bangladesh. The limit of the territorial waters has been fixed at twelve nautical miles measured seaward and has also defined the baseline giving the details set out in the notification mentioned earlier. We are only required to see whether the offend­ing Thai trawlers were within the zone cover­ed by the territorial waters of Bangladesh as defined by the notification.

11. Reverting to the facts of the case it is patent that all the three Thai trawlers were captured from the places which clearly fall within the territorial waters of Bangladesh as defined by the notification issued by the Government under the statutory powers con­ferred upon it by the Territorial Waters and Maritimes Zones Act, 1974. That being the position, we cannot but hold that both the Customs authority and the High Court Divi­sion misdirected themselves in assuming the power to decide what should be the limits of territorial waters of Bangladesh. The lear­ned Judges were further in error in applying their common sense view in such a highly technical question by giving a glance on the map of Bangladesh totally ignoring the fact that fixing of baseline for determination of the territorial waters is a technical matter, which is done by persons having expert kno­wledge. It is the legislative function to determine it by the law enacted by Parlia­ment. The function of the judiciary is to interpret the law and apply it to the facts, of a particular case.

12. We now revert to the argument of Mr. Asrarul Hossain who has raised the question that the “territorial waters” and “Customs Waters” are two different concepts and areas. He argues that the concept of baseline under the Territorial Waters and Maritime Zones Act, 1974 is different from the appropriate baseline on the coast of Bangladesh as con­templated in section 2(p) of the Customs Act contending that the two are quite distinct and separate from each other. It is to be observed that the learned Judges of the High Court Division did not countenance this submission, nor do we find any reason to accept. The de­finition of “Customs Water” in the Customs Act, 1969 says that it means water extending into the sea, to a distance of 12 nautical miles measured from the appropriate baseline on the coast of Bangladesh. We have already re­ferred to the territorial waters as defined by the Act XXVI of 1974 and the notification made thereunder. It will be seen that the re­ference to twelve nautical miles on doubt is there but the manner of fixing the baseline as given in paragraph 3 of the notification clearly shows that .this is a matter which is highly technical and requires expert knowledge. Apart from this, under this Act, power has been con­ferred on the Government to determine the “territorial waters”. In the Customs Act though there is no specific mention of the Government the language is plain enough to include the power of the legislature and the Government to determine the appropriate baseline. Under both the enactments it is 12 nautical miles measured from the baseline. The critical question is where this baseline is to be placed. We have already observed that this calls for exp­ert knowledge, which the Court does not pos­sess. This is the function of the legislature and the Government and not of the Court. Mea­surement of twelve nautical miles from the appropriate baseline on the coast of Bangla­desh as provided in the Customs Act, there­fore, cannot be the function of the Court which the learned Judges of the High Court Division erroneously assumed upon themselves to determine. The definition of the Customs waters as in the Custom Act and Territorial waters defined by the notification issued under the Territorial Waters and Maritime Zones Act are not different as Mr. Asrarul Hossain wants to contend. The learned Judges of the High Court Division were perfectly justified in holding that they are synonymous; we would rather prefer to use the expression, co-term­inus. There is no conflict between the “ter­ritorial waters” as defined by the notification under the Territorial Waters ‘and Maritime Zones Act, 1974 and the “Customs waters” as defined under the Customs Act, 1969. Mr. Hossain’s further contention is that on the coast of Bangladesh ‘means that the baseline is to fall on the terra firma of the coast. It is difficult to accept such a mean­ing as ‘on’ could well be construed as ‘from’. In any event the function is not of the Court as held earlier.

13. We now turn to the error made by both the Customs authorities and the High Court Division in assuming that the Trawlers were captured from the economic zone of Bangla­desh, a view, which upon the finding given by us in the foregoing paragraphs, indicates that they were in error as to the limits of the territorial waters of Bangladesh. They proceeded upon the basic misconception as to the technical name of the area from where the three Thai fishing trawlers were captured. They were captured not within the “economic zone” but within the “territorial waters’ of Bangladesh which is co-terminus with the “Customs Waters” and hence the Customs authorities had full jurisdiction over the three offending Thai trawlers and those came with­in the mischief of the penal section of the Customs Act. The actions taken by the Cus­toms authorities were done with jurisdiction and in accordance with law and no interference is called for. In this view of the matter the decision of the High Court Division cannot stand.

On the conclusion we have arrived at on the three grounds of leave order is sufficient to dispose of the appeals and so we restrain from dwelling on the first ground.

14. Mr. Asrarul Hossain has filed an applic­ation fur urging three additional grounds. We have heard him on those additional gro­unds and are not impressed as to their relevancy at this stage of the appeals. It is to be observed that the learned Judges of the High Court Division also did not think it worth consideration even though their de­cision was is favour of the respondents. The application is rejected.

For the foregoing reasons, the appeals are allowed with costs. The order of the High Court Division is set aside and the writs are re-called.

Ed.

Source : 32 DLR (AD) (1980) 194

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