Page 251 - Gulf Precis (VII)_Neat

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(xlvii). Amendments of the Persian Coast and Islands Order in Council in 1895.
366. By an order of Her Majesty in Council dated 3rd October 1895, the
Persian Coast and Islands Order in Council,
External A.. January 1896, No*. 66-68.
1889, was amended by repealing article 33
and the words “not being the subject of a Muhammadan Power ” in article 34,
and by directing that article should be read and construed as if the words
“ Persian subject or " had been inserted before the word “ foreigner ” wherever
that word occurs.
367. This amendment was made as a difficulty was experienced in carrying
out into effect article 33, clause (1) of the order which is explained in the
following Despatch of the Government of
Externa! A., November 1894, Nos. 119-132.
India to the Secretary of State, No. 202,
dated 24th October 1894:—
“It will be seen, however, from the papers cited in the annexed list that some difficulty
has been experienced at Bushirc in carrying into effect article 33, clause (1) of which
requires that every civil suit in which a British subject is a defendant, and a Persian
subject is a plaintiff, shall be heard by a Court established under the order. To this
procedure the Persian Agent for Foreign Affairs at Bushirc has strongly objected on the
ground that he had no official cognisance by any Order in Council, and that the procedure
laid down in article 33 would be an innovation in which he had no authority to acquiesce.
We addressed Her Majesty’s Charge d'Affaires at Tehran, on the question of British
jurisdiction in respect of civil claims brought by Persians against British subjects at Bushire,
and as to the procedure by which that jurisdiction should be exercised, enquiring also
whether any formal notice had been given to the Persian Government regarding the Persian
Coast and Islands Order in Council, 1889. Her Majesty's Charge d'Affaires has replied
that, in view of the existing provisions of the Treaty of Turkomanchai, which is the
fundamental basis on which all judicial procedure where Persians and foreigners are
concerned is grounded, it would not be possible, if the local authorities object, to order
the attendance of Persian subjects in a foreign Court in Persia. He adds that as British
subjects alone are amenable to the provisions of the Persian Coast and Islands Order in
Council, no formal notice of its existence has been given to the Persian Government.
Clause 1 of article 33 of the Order has been copied from the Zanzibar Order in
Council, but the corresponding clause in that
• Article 5, Treaty of Commerce, 1839.
Order was based on a special agret ment* with
the Sultan of Maskat which completely excludes the jurisdiction of the Sultan in all disputes
between his subjects and British subjects, when the former are complainants. There is
thus no anology between jurisdiction in the case of Zanzibar subjects and Persian subjects,
and we are of opinion that section 33 of the latter order is faulty in that it assumes an
exclusive jurisdiction in suits in which Persians have claimed against British subjects which
the British Government did not apparently possess prior to the date of the Order in Council.
This assertion of exclusive jurisdiction in the case of Persian plaintiffs is the more remark­
able, because in section 34 of the Order jurisdiction can only be exercised in the case of
foreigners, i.e., other than Persians—with the consent of the proper authority of the plaintiff’s
nation so that the Order would have been to place Persian subjects in their own country in
a worse position relatively to their own Courts than other foreigners. We are not aware
what authority there can be for this. A further difficulty arises from the fact that in the
case of suits governed by the Order in Council, article 6 precludes the continuance of any
informal system of disposal, such as prevailed before the Order came into force, by requiring
that all British jurisdiction shall be exercised, as far as may be, under, and according to,
the provisions of the order.
In these circumstances we would suggest for the consideration of Her Majesty's
Government that the Order in Council should be amended, or that the formal sanction of the
Persian Government to our exercise of the jurisdiction should be obtained.*’
368. It was then pointed out that the Persia Order, idSg, and the Persian
Coast order, differed inter alia in this that
External A., May 1893, No*. 79-87.
the head “ Foreign ” in the former includ­
ed, and in the latter excluded, Persian subjects. But for this difference, articles
60-63 of the Persia order were in almost identical terms with article 34 of the
coast order. If therefore article 33 of the latter order was repealed, and article
34 made to correspond with articles 60-63 °f the former, Persian subjects would
be on the same footing under both orders. The Persian coast order could be
harmonized either by altering the interpretation of “ Foreigner ” in article 3, so as
to make it include Persian subjects, or by making article 34 apply to Persian
subjects, as it does to foreigners. This latter mode was thought to be simpler
and better, and adopted accordingly.