| |
|
 |
| For business information, annual reports, laws, ordinances, regulations and articles. |
|
|
|
8 Finale
CHAPTER VII
FINAL PROVISIONS
ARTICLE 28
ENTRY INTO FORCE
(1) This convention shall be ratified and the instruments of
ratification shall be exchanged at.............. as soon as possible.
(2) The convention shall enter into force upon the exchange of instruments of ratification
and its provisions shall have effect:
(a) (In State A):
........................................................................................
(b) (In State B):
.......................................................................................
ARTICLE 29
TERMINATION
This convention shall remain in force until terminated by a
Contracting State. Either Contracting State may terminate the convention, through
diplomatic channels, by giving notice of termination at least six months before the end of
any calendar year after the year.........In such event, the convention shall cease to have
effect:
(a) (In State A):
........................................................................................
(b) (In State B):
........................................................................................
TERMINAL CLAUSE
NOTE: The provisions relating to the entry into force and
termination and the terminal clause concerning the signing of the Convention shall be
drafted in accordance with the constitutional procedure of both Contracting States.
133. Scope
These Articles relate to procedure for entering into force and termination of
agreements, which corresponds to the procedure relating to all international treaties. The
various stages of the agreement are: the negotiations, drafting of its Articles,
ratification, notification, and exchange of instruments of ratification, its coming into
force and its termination. After negotiations, the provisions of the agreement are
drafted. Ratification notification and exchange of instruments are the stages which make
these provisions operative and effective. These stages are explained in the succeeding
paras:
134. Ratification
For purposes of international law, a tax treaty comes into existence upon the
declaration of consent by both Contracting States
normally called ratification. Ratification refers to the past and is a recognition and
confirmation of what have been agreed upon. Ratification of a treaty is a formal ceremony
whereby sometime after a treaty has been signed, solemn confirmations of it are exchanged
by the Contracting States. No treaty is, normally, binding without ratification. The agreement becomes effective if it has received the consent and
ratification of the authorities. Sometimes the Contracting States may agree for the
agreement coming into force after an exchange of notes confirming that each State has
completed the procedures for such entry into force. Thus, each Contracting State notifies
to the other completion of procedure required by its laws for bringing into force of the
agreement. Ratification is to be distinguished from parliamentary consent which is
frequently characterised as 'ratification'. In the document of ratification the authorised
authority delivers the formal declaration that the constitutional requirements necessary
for internal application of the treaty have been fulfilled. The treaty then becomes
binding under international law. The agreement will then enter into force on the date of
the later of these notifications and will thereupon have effect. The date of operation in
the respective Contracting States may not be coincidental. It may be different, depending
upon the domestic tax laws of each country. Some States assess tax on the income received
during the current year, some others on the income received during the previous year,
others again have a fiscal year which differs from the calendar year. The date of
operation of the agreement is, therefore, chosen as to correspond to the first day of the
current year or the calendar year, or the fiscal year or the assessment year.
135. Notification
Article 28 of the UN Convention Model provides for about when the convention comes
into operation and thus has effect in the respective Contracting States. Generally, it is
effective, upon the ratification and the exchange of instruments of ratification. As for
Pakistan, the section which empowers the Federal Government to enter into agreement with
any other country outside Pakistan, inter alia, provides that the Government may have to
make, by notification in the Official Gazette, the provisions for the implementation of
agreement. Such a provision is necessary as it conforms to the process of subordinate
legislation in Pakistan, especially when the effect of the agreement is to grant relief in
respect of income on which has been paid income-tax both under the Income Tax Ordinance,
1979 and the similar Act of the other country. In the absence of such notification, the
agreement cannot be operative in Pakistan. The ratification, and the exchange of
instruments of ratification, are not sufficient to make the agreement operative, till such
ratification is notified in the Official Gazette. The reasons for the notification in the
Official Gazette have been discussed in the following paras:
While, as observed by Sir C.K. Allen, would
seem reasonable that legislation of any kind should not be binding until it has somehow
been 'made known' to the public, "that is not the rule of law and if it were, the
automatic cogency of a statute which has received the royal assent would be seriously and
most inconveniently impaired". The reasoning is that the statutes at least receive
publicity of parliamentary debate and that, therefore, they are, or should be 'known'. But
this is not true of a delegated legislation, which do not necessarily receive any
publicity in Parliament or in any other way. That is the reason for the insistence of the
publication of a subordinate legislation in the Official Gazette before it can be brought
into force. In so far as the Acts and resolutions passed by the Houses of Parliament and
State Legislatures are concerned, the very process of passing the Houses of the Parliament
or the State Legislatures gives them ample publicity. The reports of. the proceedings of
Parliament and the State Legislatures are widely circulated. The newspaper, radio and the
television are also the other modern means which give publicity to all Acts and
resolutions of the Parliament and the Legislatures of the States.
Where there is a statutory requirement as to the mode or form of publication and they are
such that in the circumstances, the court holds it to be mandatory, a failure to comply in
those requirements must result in there being no effective order. In most of the Pakistani statutes, there is a provision for the rules made
being published in the Official Gazette. It, therefore, stands to reason that publication
in the Official Gazette, viz, the Gazette of Pakistan is the ordinary method of bringing a
rule of subordinate legislation to the notice of persons concerned.
Publication in the Official Gazette means that the Gazette containing the notification is
available to the public. Contextually speaking, 'publication' means more than mere
communication. To publish means is to make known to the people in general; 'an advising of
the public or making known of something to the public for a purpose' (Black's Legal
Dictionary), 'Publication' is the act of publishing anything, offering it to public
notice, or rendering it accessible to public scrutiny, an advising of the public, a making
known of something to them for a purpose.
Mere publication in the Official Gazette does not make the notification effective if such
a Gazette is not available to the public. The publication of notification would be
complete only when the Gazette containing it is made available to the
public.
136. Termination
The article containing provision for termination does not contain the period after
which or the date on which the agreement will cease to have effect. It is effective for
indefinite period until terminated by a Contracting State. The termination cannot,
however, be desired before the expiry of some years for which the agreement has been
operative, as bilaterally agreed upon. The procedure for termination involves the
Contracting State giving a notice in writing, through diplomatic channel at least six
months before the end of any calendar year. The agreement, therefore, ceases to have
effect as regards Pakistan, in respect of income assessable for the assessment year
commencing on the first day of July in second calendar year in which the notice is given,
and subsequent years.
|
|
|
|
|
|
| Home | About Us | Contact | Information Resources |