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Report No. 69

V. Effect of the Certificate

22.10. It will be convenient now to consider the effect of the "Foreign Office Certificate" (as it is usually termed). In England, its effect is to substitute the view of the British Government for an independent judicial determination, on the facts, of the claim to be entitled to the particular status. For example, on the question of the status of a sovereign, the words of Lord Esher in the decision of the Court of Appeal in Mighell v. Sultan of Johore, (1894) 1 AB 149 (158), have been accepted as authoritative: "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."

Presumably, the same principle will apply to other matters involving international relations on which a certificate can be appropriately obtained from the Government.

VI. Form of the Certificate

22.11. Form of evidence.-

We have so far described the document as a certificate. A "certificate" on the above mentioned matters is a formal document. But a formal statement by the appropriate Secretary of State, tendered to the court, is not the sole method of conveying the views of the Executive. The Law Officers may appear, either by invitation of the Court or on an intervener,1 to inform the court of the attitude of the Crown. Also, letters sent by the Foreign Office to the Solicitors acting for one party to the proceedings, and submitted to the court, will be regarded as sufficient evidence of the Crown's views2.

1. See-

(a) The Fagernes, 1927 Probate 311.

(b) Adams v. Adams, 1971 Probate 188 (198): (1970) 3 All ER 572 (476, 577).

2. See, e.g., Bance de Bilbao v. Key, (1935) 2 KB 176 (181).

VII. Recommendation

22.12. Recommendation to incorporate in the Evidence Act suitable provision.-

The above discussion will show the importance of the subject under consideration. While it is not necessary to incorporate in the Evidence Act any comprehensive provisions as to matters involving foreign relations on which views of the Government can be obtained by the court, we consider it desirable that section 87A(2) of the Code of Civil Procedure, 1908, to which we have referred above ,1 should be transferred to the Evidence Act, for the following reasons:-

(a) It is a rule of evidence, and properly belongs to the Evidence Act.

(b) The Evidence Act already contains provisions as to judicial notice.

(c) Such a rule is needed for criminal cases also.

1. Section 87A(2) Code of Civil Procedure, 1908, to be deleted.

22.13. Recommendation to insert section relating to judicial notice as to recognition of a State.-

We, therefore, recommend the insertion of a new section, say, section 57A in the Evidence Act, on the same lines as section 87A(2) of the Code of Civil Procedure. That sub-section should, in consequence, be deleted from the Code.1

The section to be inserted in the Evidence Act will be as follows:-

"57A. Every court shall take judicial notice of the fact-

(a) that a State has or has not been recognised by the Central Government;

(b) that a person has or has not been recognised by the Central Government to be the head of a State."

1. Section 87A(2) Code of Civil Procedure, 1908, to be deleted.

Indian Evidence Act, 1872 Back

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