Presumption against Extra-territorial Effect

Presumption against Extra-territorial Effect
Presumption against Extra-territorial Effect

All jurisdiction of a statute is properly territorial and ‘extra territarium jus dicenti, impune non Paretur’ i.e., you cannot safely obey one existing jurisdiction out of his own country.

In the absence of an intention clearly expressed or to be inferred either from its language, or from the object or subject- matter or history of the enactment, the presumption is that the legislature does not design its statutes to operate on the individuals beyond the territorial limits of the country. Jagir Khan v. Jaswant Singh, AIR, (1963) SC 1521

Even when the legislative competence is not restricted on considerations of territorial nexus, it is presumed that statutes are not intended, in the absence of contrary language or clear implication, to operate on events taking place or persons outside the territories to which the statutes are expressed to apply. The laws of a nation apply to all its subjects and to all things and acts within its territories, including in this expression not only its ports and waters, but its ships, and the ships of its subjects on the high seas in foreign tidal waters, and foreign private ships within its ports. R. v. Walkem, (1908) 14 AC 1

The jurisdiction may apply also to all foreigners within its territories (not privileged like sovereigns and ambassadors) as regards criminal, police and, indeed, all other matters except some questions of personal status or capacity, in which, by the comity of nations, the law of their own country applies. N. S. Bindra, Interpretation of Statutes,  p. 183

The jurisdiction of the legislature of any state, thus generally is limited to the geographical area governed by that state. Furthermore, as a general rule, the statutory law of a state can have no effect outside the territorial limits of that state, unless it is given effect in a foreign jurisdiction by courtesy or comity. The Supreme Court of Virginia notes that ‘statutes derive their force from the authority of the legislature, and as a necessary consequence their effect will be limited to the boundaries of the State. Op. v. Attorney Genneral, 04 – 080, (2004)

The person on whom a particular Act is intended to operate are described as the persons to whom it ‘applies’. Who these are is to be gathered from the language and purview of the Act, but the presumption is that Parliament is concerned with all conduct taking place within the territories to which the Act extends and with no other conduct. [ Lord Halsbury] Halsbury’s Law,  (4th Edition), Vol. 44 (1) Para 1319

The general principle of construction is, of course, that legislation is prima facie territorial. The United Kingdom rarely purports to legislate for the whole world. Some international cases like torture are an exception, but usually such an exorbitant exercise of legislative power would be both ineffectual and contrary to the comity of nations. [Lord Hoffman] Serco Ltd. v. Lawson, (2006) UK (HL) 3

The presumption that a statute is not intended to apply to a person outside the territory of the State it is particularly strong in case of foreigners, for as regards the foreigners the normal presumption is further strengthened by another presumption that the legislature intends to respect the rules of international law. Bangladesh statutes have no application in respect of foreign property and foreigner outside Bangladesh. Mahmudul Islam, Interpretation of Statutes and Documents (1st Edition), p. 67

Generally we must assume that the Legislature confines its enactments to its own subjects over whom it has authority and to whom it owes a duty in return for their – obedience. Nothing is more clear than that it may also extend its provisions to foreigners in certain cases and may without express words make it appear that such is the intendment of these provisions. But the presumption is lather against the extension and the proof of it rather upon those who would maintain that such is the meaning of the enactment. [Lord Brougham] Jeffreys v. Bossey, (1854) 4 HLC 851

The general principle of private international law is that land is subject exclusively to the laws of the State in whose territory it lies, nationality, residence and domicile of the owner of the land being all irrelevant. Accordingly, the laws relating to immovable properties of Bangladesh are applicable only in respect of the immovable properties situated in Bangladesh and any disposition of such property by anybody, resident or non-resident, citizen or foreigner, must comply with the laws of Bangladesh. Unless expressly provided a Bangladeshi statute will not be construed as applying to a foreign land. Mahmudul Islam, Interpretation of Statutes and Documents (1st Edition), p. 67

In case of movable property, it has generally no other situs than that of its owner, and in accordance with this principle statutes dealing with such property will generally be construed so as to affect all the property of persons domiciled in Bangladesh wherever situated but not that of persons domiciled abroad even though the property be in Bangladesh.

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