ISLAMABAD: Upon hearing extensive arguments from Advocate Hafiz Ahsaan Ahmad Khokhar, the Federal Constitutional Court (FCC) on Wednesday reserved its judgment on a government appeal. The appeal challenges a series of directives issued by the Lahore High Court (LHC) regarding the ongoing prohibition on imports from India.
A three-member bench of the Justice Aamer Farooq, also comprising Justice Ali Baqar Najafi and Justice Rozi Khan Barrech took up an appeal of commerce ministry against Jan 26, 2024 of the LHC judgement in the matter.Earlier, the appeal was filed before the Supreme Court but after passage of the 27th Amendment, the matter was transferred to the FCC for hearing. Federal government under its constitutional and statutory authority issued order to impose ban i through Statutory Regulatory Orders (SROs) Nos 927 and 928(I)/2019, reflecting considerations of foreign policy, national security and sovereign discretion.
Through these SROs, imports from and exports to India were banned for all kinds of goods, including books and journals. The controversy arose when the SROs were challenged before the LHC with the contention that these regulatory orders, to the extent of banning the import of books from India, were ultra vires the Constitution.
Validity of SROs upheld
Although the LHC upheld the validity of the SROs by declaring them intra vires the Constitution and the relevant statutory framework, it nonetheless issued certain directions to the federal government. The LHC directed the federal government to appoint an officer to consider a review or revision of the policy. It also ordered the federal government to ensure that it considered and decided the officer’s recommendations.One of the directions suggested that the officer should be appointed within the next two months by the commerce ministry and that the appointment should be posted on its website. The petitioners, if so advised, were to file their reviews thereafter.
These directions, despite affirming the legality of the policy, were challenged before the FCC as being beyond the permissible scope of judicial review. In its petition, the federal government pleaded before the FCC that it was competent to ban one or all goods, or a class of goods, from any one country or from worldwide sources. It also argued that India was neither an authority in any field of knowledge nor enjoyed a monopoly over wisdom.It added that as such, banning imports from India, including books or journals, did not infringe any fundamental rights of the respondents. The petition also stated that the suspension of trade with India was taken in the context of Pakistan’s national interest and its longstanding stance on Kashmir.
‘Judicial overreach’
Appearing on behalf of the revenue division secretary, Advocate Hafiz Ahsaan Ahmad Khokhar argued that the Jan 26, 2024 LHC judgement was legally unsustainable to the extent that it issued directions after upholding the validity of the SROs. He contended that once the policy decision embodied in the SROs had been affirmed, any further directions amounted to judicial overreach and encroachment upon the executive domain. The counsel argued that matters relating to trade restrictions, import prohibitions and regulation of commerce with hostile or adversarial foreign states fell squarely within the exclusive domain of the executive under the constitutional scheme. He emphasised that issues touching upon foreign policy and external relations were traditionally regarded as non-justiciable, and that courts were required to exercise judicial restraint unless a clear violation of the Constitution or fundamental rights was established.
The counsel further contended that constitutional courts were mandated to adjudicate legality and constitutionality, not to issue directions requiring the federal government to revisit, reconsider or reformulate policy decisions. Such directions, he argued, violated the doctrine of separation of powers enshrined in the Constitution and blurred the constitutionally demarcated boundaries between the judiciary and the executive.
Additionally, Additional Attorney General Chaudhry Aamir Rehman, appearing on behalf of the federation, submitted that the impugned judgement was not legally sustainable. He stated that the LHC had gone beyond its jurisdiction by interfering in policy matters, which courts were constitutionally barred from doing so. He added that allowing such directions would amount to judicial encroachment into the executive domain, rendering the judgement legally unsustainable. After hearing arguments from both sides, the FCC reserved its judgement.
