Islamabad High Court (IHC) Chief Justice Aamer Farooq. PHOTO: FILE
ISLAMABAD:
The Federal Constitutional Court (FCC) has reserved its judgment on the federal government’s petition challenging certain Lahore High Court (LHC) directions regarding the ban on imports from India and Israel.
A three-judge bench of FCC led by Justice Aamer Farooq heard the matter.
The ban was imposed through Statutory Regulatory Orders (SROs) 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 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 nonetheless issued certain directions to the federal government.
The LHC had directed the appointment of an officer to hear petitioners, particularly regarding law books and journals.
“The recommendations of the Officer so appointed shall then be considered and decided upon by the Federal Government. The Officer shall be appointed within the next two months by the Commerce Division of Ministry of Commerce and Textile, Government of Pakistan and posted on its website. The petitioners may, if so advised, file a review thereafter,” said the LHC order.
These directions, 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 submitted that the judgment was not legally sustainable.
He stated that the high court had exceeded its jurisdiction by interfering in policy matters, which courts are constitutionally barred from doing. According to him, allowing such directions would constitute judicial encroachment into the executive domain, rendering the judgment legally unsustainable.
Appearing on behalf of the Secretary, Revenue Division, Hafiz Ahsaan Ahmad Khokhar, Advocate Supreme Court, submitted that the judgment dated 26.01.2024 passed by the LHC was legally unsustainable to the extent it issued directions after upholding the SROs’ validity.
He argued that once the policy decision embodied in the SROs had been affirmed, any further directions would constitute judicial overreach and encroachment into the executive domain.
Khokhar further contended that matters relating to trade restrictions, import prohibitions, and regulation of commerce with hostile or adversarial foreign states fall squarely within the exclusive domain of the executive under the constitutional scheme.
He emphasized that issues touching foreign policy and external relations are traditionally regarded as non-justiciable, 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 mold relief or issue directions requiring the federal government to revisit, 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.
