Islamabad High Court (IHC) Aamer Farooq. PHOTO: FILE
ISLAMABAD:
The Federal Constitutional Court (FCC) has reserved its 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 bench of the FCC headed by Justice Aamer Farooq heard the case.
The ban was introduced through Statutory Regulatory Orders (SROs) No. 927 and 928(I)/2019, issued by the Federal Government under its constitutional and statutory authority, reflecting considerations of foreign policy, national security and sovereign discretion.
The case arose after the SROs were challenged in the LHC.
Although the LHC upheld the validity of the SROs and declared them intra vires the Constitution and relevant statutory framework, it nevertheless issued certain directions to the federal government.
The LHC had directed the appointment of an officer to hear the petitioners, particularly regarding law books and journals.
“The recommendations of the officer so appointed shall then be considered and decided by the Federal Government. The officer shall be appointed within the next two months by the Commerce Department of the Ministry of Commerce and Textiles, Government of Pakistan and published on its website. The petitioners may, if informed, file a notification thereafter,” the LHC order said.
These directions, despite confirming the legality of the policy, were challenged before the FCC as being outside the permissible scope of judicial review.
Additional Attorney General (AAG) Amir Rehman represented the federation and argued that the verdict was not legally sustainable.
He stated that the High Court had exceeded its jurisdiction by interfering in political matters, which the courts are constitutionally barred from doing. According to him, allowing such directions would amount to judicial encroachment on the executive domain, which would render the judgment legally unsustainable.
Hafiz Ahsaan Ahmad Khokhar, Advocate Supreme Court, appearing for the Secretary, Revenue Division, submitted that the judgment dated 26.01.2024 of the LHC was legally unsustainable to the extent that it issued directions after upholding the validity of the SROs.
He argued that once the policy decision embodied in the SROs had been confirmed, further directions would amount to 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 hostile foreign states fall entirely within the exclusive domain of the executive under the constitutional scheme.
He stressed that issues affecting foreign policy and external relations are traditionally considered non-judicial and courts are required to exercise judicial restraint unless a clear violation of the constitution or fundamental rights is established.
He added that constitutional courts are mandated to adjudicate legality and constitutionality, not to fashion relief or issue directives requiring the federal government to review, reconsider or reformulate policy decisions.
Such directions, he argued, violate the doctrine of separation of powers enshrined in the Constitution and blur the constitutionally demarcated boundaries between the judiciary and the executive.
