Aamer Farooq, Chief Justice of the Islamabad High Court (IHC). PHOTO: ARCHIVE
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 FCC bench headed by Justice Aamer Farooq heard the matter.
The ban was imposed by Statutory Regulatory Orders (SRO) Nos. 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 questioned at the LHC.
Although the LHC confirmed the validity of the SROs and declared them intra vires the Constitution and the relevant legal framework, it issued certain directions 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 shall be considered and decided by the federal government. The officer shall 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 so informed, submit a review thereafter,” the LHC order said.
These instructions, despite affirming the legality of the policy, were challenged before the FCC as being beyond the permissible scope of judicial review.
Additional Attorney General (AAG) Amir Rehman represented the federation and claimed that the sentence was not legally sustainable.
He claimed the high court had exceeded its jurisdiction by interfering in policy matters, something courts are constitutionally prohibited from doing. According to him, allowing such instructions would constitute a judicial invasion of the executive sphere, making the ruling legally unsustainable.
Hafiz Ahsaan Ahmad Khokhar, Advocate of the Supreme Court, appearing for the Secretary, Revenue Division, submitted that the judgment dated January 26, 2024 passed by the LHC was legally unsustainable to the extent that it issued directions after confirming the validity of the SROs.
He argued that once the political decision embodied in the SRO was confirmed, any additional direction would constitute judicial overreach and an invasion of the executive domain.
Khokhar further maintained that issues relating to trade restrictions, import bans and regulation of trade with hostile or adversary foreign states fall squarely within the exclusive domain of the executive under the constitutional scheme.
He emphasized that issues relating to foreign policy and foreign relations are traditionally considered non-justiciable and that courts must exercise judicial restraint unless a clear violation of the Constitution or fundamental rights is established.
He added that constitutional courts are mandated to judge legality and constitutionality, not to shape relief measures or issue instructions requiring the federal government to review, reconsider or reformulate policy decisions.
He argued that such directions violate the doctrine of separation of powers enshrined in the Constitution and blur the constitutionally demarcated boundaries between the judiciary and the executive.
