Islamabad High Court (IHC) Chief Justice Aamer Farooq. PHOTO: FILE
ISLAMABAD:
The Federal Constitutional Court (FCC) has reserved judgment on the federal government’s petition challenging certain directions of the Lahore High Court (LHC) regarding the ban on imports from India and Israel.
A three-judge FCC bench headed by Justice Aamer Farooq heard the case.
The ban was imposed through Statutory Regulatory Orders (SRO) Nos. 927 and 928(I)/2019, issued by the Federal Government pursuant to its constitutional and statutory authority, reflecting considerations of foreign policy, national security and sovereign discretion.
The case arose after SROs were challenged in the LHC.
Although the LHC upheld the validity of the SROs and declared them intra vires the Constitution and the relevant statutory framework, it nevertheless issued certain instructions to the Federal Government.
The LHC had ordered the appointment of an officer to hear the petitioners, particularly with regard to law books and journals.
“The recommendations of the officer so appointed will subsequently be considered and decided by the Federal Government. The officer will be appointed within the next two months by the Commerce Division of the Ministry of Commerce and Textiles, Government of Pakistan and published on its website. The petitioners may, if informed, file a review thereafter,” the LHC order said.
These instructions, although affirming the legality of the policy, were challenged before the FCC because they exceeded the permissible scope of judicial review.
Additional Attorney General (AAG) Amir Rehman represented the federation and argued that the judgment was not legally viable.
He said the High Court had exceeded its jurisdiction by interfering in matters of policy, which the Constitution prohibits courts from doing. According to him, authorizing such instructions would constitute a judicial encroachment on the executive domain, making the judgment legally untenable.
Appearing on behalf of Secretary Revenue Division, Supreme Court Advocate Hafiz Ahsaan Ahmad Khokhar submitted that the judgment dated 26.01.2024 passed by the LHC was legally untenable as it issued directions after upholding the validity of the SROs.
He argued that once the policy decision contained in the SROs was confirmed, any further guidance would constitute judicial overreach and encroachment on the executive domain.
Khokhar further argued that matters relating to trade restrictions, import bans and regulation of trade with hostile or antagonistic foreign states were clearly within the exclusive domain of the executive under the constitutional scheme.
He stressed that matters affecting foreign policy and external relations are traditionally considered non-justiciable and that courts are required to exercise judicial restraint unless a flagrant violation of the Constitution or fundamental rights is established.
He added that the constitutional courts are mandated to rule on legality and constitutionality, not to fashion remedial measures or issue directions requiring the federal government to review, reconsider or reformulate its policy decisions.
Such guidance, he argued, violates the doctrine of separation of powers enshrined in the Constitution and blurs the constitutionally demarcated boundaries between the judiciary and the executive branch.
