RANASINGHE v. MINISTER OF FOREIGN AFFAIRS AND OTHERS

013-SLLR-SLLR-2010-V-1-RANASINGHE-v.-MINISTER-OF-FOREIGN-AFFAIRS-AND-OTHERS.pdf


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RANASINGHE VS. MINISTER OF FOREIGN AFFAIRSAND OTHERSCOURT OF APPEALSATHYA HETTIGE PC (P/CA)
GOONERATNE, J.
CA 601/09OCTOBER 30, 2009NOVEMBER 24, 2009DECEMBER 3, 2009
Writs of Certiorari/Mandamus – Diplomatic Privileges Act 9 of 2009 -Article 1 (e) – Vienna Convention on Diplomatic Relations 1961 – Whois a Diplomatic Agent – Is the petitioner a diplomatic officer? – Duty freeconcession? – Can concession given under International Covenants becurtailed?
The petitioner an English stenographer attached to the Sri LankaMission in Pakistan, on her return to Sri Lanka brought the vanimported from Japan and used by her – as ‘personal belongings’. Thepetitioner complaints that she was entitled to import the van ‘duty free’but the Customs had informed her to pay the import duties.
Held:
Vienna Convention on Diplomatic Relations of 1961 and ViennaConvention on Consular Relations of 1963 have been given effectto in terms of the Diplomatic Privileges Act 9 of 2009. In terms ofArticle 1 (e) – a Diplomatic Agent is the head of the Mission or amember of the diplomatic staff of the mission.
An English stenographer appointed to the Sri Lanka Mission inPakistan, is not a member of the Mission holding diplomatic rank.
Held further:
Customary Laws based on the International Conventions haveno application to the petitioner once she returns to Sri Lanka ontermination of her duties as a non-diplomatic officer in a foreign
CA
Ranasinghe vs. Minister of foreign affiars and others
(Sathya Hettige PCJ. (P/CA))
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mission abroad and she is subject to the laws of Sri Lanka – and issubject to the provisions of the Customs Ordinance and other lawsof Sri Lanka.
APPLICATION for Writs of Certiorari/Mandamus.
K. Deekiriwewa with L. M. Deekiriwewa and N. K. Herath forpetitioner.
A. Gnanathasan, PC ASG with Anusha Jayatilaka SC for respondent.
Cur.adv.vult.
December 03rd 2009SATHYA HETTIGE PC J. (P/CA)
This application was listed for support on 30/10/09.Before this application was supported by the counsel for thePetitioner the learned Additional Solicitor General raisedtwo preliminary objections on the maintainability of thisapplication before considering the application for noticebeing issued on the respondents.
However, this court permitted the learned counselfor the Petitioner to support the application to consider asto whether there was a prima facie case as sought by thepetitioner. The court was of the view that the preliminaryobjections raised by the learned Additional Solicitor Generalcould be considered when deciding as to whether there is aprima facie case.
The Petitioner had been selected and posted to theSri Lanka Mission in Karachchi Pakistan as an Englishstenographer with effect from 01/09/2004 as per the letterdated 07/07/2004 marked “X 3”.
The Petitioner states that she used a Toyota van bearingNo. CR 40-0016433 imported from Japan through an Agent
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in Pakistan and that she enjoyed a duty free concessionwhen importing the said van as per the rules and conditionsapplicable to non diplomatic staff attached to a foreignmission in Pakistan. It was submitted further that thePetitioner served in the Sri Lankan Mission in Karachchi fora period of 3 years and 7 (seven) months.
The learned counsel for the Petitioner submitted that thePetitioner, on her return to Sri Lanka in July 2008 broughtthe said van to Sri Lanka as a “personal belonging” to whichshe was entitled to bring duty free. The complaint of thePetitioner is that when the motor vehicle was brought to SriLanka, the Petitioner had been informed to pay the importduties in a sum of approximately Rs. 4.7 million to clear thevehicle according to the provisions of the Customs Ordinancein Sri Lanka.
The learned counsel for the Petitioner submitted thatthe Petitioner enjoyed the duty free concessions for all otherpersonal belonging other than the motor vehicle and thatthe right which accrued to the Petitioner under customaryinternational law based on the Vienna Convention onDiplomatic Relations of 1961 and Vienna Convention onConsular Relation of 1963 cannot be derogated by a Circularprovision contained in the Circular (Ministry InstructionSeries) no. 165 issued by the Ministry of Foreign Affairs on07th April 2000. The said Circular is marked “X 11 (c) ” to thePetition.
The Petitioner in this application is seeking among otherreliefs, a Writ of Certiorari to quash the said Ministry Instruc-tions Series No. 165 dated 07/04/2000 marked “X 11(c)” andalso a mandate in the nature of Writ of Prohibition prohibitingthe 1st to 5th Respondents from applying the said Circular
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Ranasinghe us. Afinister of foreign affiars and others
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marked “XI1 (c)” to the vehicle imported by the Petitioner asa personal belonging.
The Petitioner is also seeking a Writ of Mandamus directingthe 9th to 11th Respondents not to charge, levy or demand anykind of charges whether basic occupational charges and orpenal occupational charges from the Petitioner in respect ofthe above vehicle bearing chassis no. CR 40-0016433.
The Petitioner also seeks an Interim Relief to clear thesaid motor vehicle by keeping an irrevocable Bank guaranteein favor of the Director General of Customs for the totalCustoms Duty.
The learned ASG objected to this application and submittedthat the petitioner was only a non-diplomatic officer and thatthe Petitioner was not entitled to seek duty free concessionswhen importing the used motor vehicle on her return to SriLanka after completion of duties in the foreign mission, whichprivilege is granted only to diplomatic officers under and interms of the said Circular and therefore that the applicationbe dismissed in limine.
On a perusal of the averments contained in paragraph2 of the Petition, it is obviously clear that the Petitionerwas only an English Stenographer appointed to Sri Lanka’smission in karachchi, Pakistan and not a member of themission holding diplomatic rank. The learned ASG submittedthat the Petitioner cannot seek any facility or any dutyconcession under the said Circular which is only applicableto diplomatic officers.
The Preamble to the said impugned Ministry InstructionSeries dated 07/04/2000 marked X 11 (c) issued by theSecretary Ministry of Foreign Affairs states that as follows:
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“All Diplomatic Officers (SLFS and Contract Officers)other than home based staff holding the local rank ofAttache are granted the privilege of importing motor vehiclesunder the provisions of this Circular. The cost of freight,insurance and GST etc. of such vehicles are met by theGovernment. They are exempted from payment of CustomsDuty and Excise Duty. This privilege is granted becauseDiplomatic Officers are expected to use their private vehicleson their overseas posts sometimes for official travel alsowithout resorting to hiring of vehicles for such official travel“
Under eligibility criteria in Para 2 thereof it reads asfollows:
“A Diplomatic Officer who has purchased a vehiclewithin 12 months of his assumption of duties at a SriLanka Mission abroad and used it continuously till theend of his tour of duty will become eligible for importinga motor vehicle under this scheme
On a careful reading of the said Circular marked “X 11 (c)”on page 3 thereof it is further stated that the Circular has beenissued with the concurrence of the Secretary to the Treasuryand will come into force with effect from 7th April 2000.
It can further be seen that copies of the said Circular hasbeen sent to
Secretary to the Treasury
S/PA H. A. & Plantation Industries
Auditor General
D. G./Customs Department
Controller/Imports and Exports
Registrar of Motor Vehicles.
CA
Ranasinghe vs. Minister of foreign affiars and others
(Sathya Hettxge PCJ. (P/CA)j
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It should be noted that this Circular has been in forcesince 07/04/2000.
Moveover, it is to be noted that the Vienna Convention onDiplomatic Relations 1961 has been given effect to in termsof the Diplomatic Privilegas Act No 09 of 2009. Article 1(e) ofthe Schedule to the said Act defines a “diplomatic agent” asfollows:
“a diplomatic agent is the head of the mission or a memberof the diplomatic staff of the mission”
Clearly the Petitioner does not fall within either categoryand therefore the Circular marked “X11 (c) has no applicabilityto the Petitioner. I therefore uphold the objections raised bythe learned ASG that the Petitioner has no locus standi tomake this application for Writs of Certiorari and Mandamuson the basis that the Petitioner is not eligible to apply for dutyfree concessions granted under Circular marked “X 11 (c) andthat the Petitioner has no legal right to such concessions.
The counsel for the Petitioner relied on the provisionscontained in the Vienna Convention on Diplomatic Relationsof 1961 and the Vienna Convention on Consular Relationsof 1963 and the fact that the Petitioner was given duty freeconcessions from the Ministry of Foreign Affairs in Islamabad,Pakistan when she imported the said vehicle from Japan intoPakistan.
The learned counsel for the Petitioner at the time ofsupport of this application, took pains to explain andconvince court that the concessions given under twoInternational conventions cannot be curtailed or withheld bythe sending country except by way of a statute. It was heavilyargued by the counsel that question of payment of furtherduty does not arise as already duty concession has beengiven under Convention provisions.
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However, the learned ASG submitted that the Customarylaws based on the above international Conventions have noapplication to the Petitioner once she returns to Sri Lanka ontermination of her duties as a non-diplomatic officer (EnglishStenographer) in a foreign Mission abroad and that she issubject to the laws of Sri Lanka. The Petitioner is an ordinarycitizen once she returns on completion of her duties in aforeign Mission. And as such the Petitioner being a non-diplomatic officer is not entitled to any duty free conces-sions under the Circular marked “X 11 (c)” and is subject toprovisions of the Customs Ordinance and other laws of SriLanka.
I disagree with the contention of the learned Counselfor the Petitioner that the Petitioner is entitled to any dutyfree concessions for the reasons stipulated above. In thecircumstances I am of the view that there is no merit in thisapplication and this court cannot grant any relief in favour ofthe Petitioner.
Accordingly I refuse to issue notice. The application isdismissed without costs.
GOONARATNE J. – I agree.
Notice refused.
Application dismissed.