Import regulation: HCs cannot encroach upon executive’s policy-making domain: FCC
ISLAMABAD: The Federal Constitutional Court (FCC) held that High Courts cannot encroach upon the executive’s policy-making domain in matters related to import regulation by exercising suo motu powers.
The judgment, authored by Justice Aamer Farooq, ruled that the High Courts cannot exercise suo motu jurisdiction or interfere in the federal import policy. It noted: “By converting a prayer for certiorari into one of mandamus, despite the same not having been sought, the High Court effectively acted suo motu,” and said that this course was impermissible.
A three-member FCC bench delivered the judgment in C.P.L.A. Nos. 1505 and 1506 of 2024 arising out of constitutional petitions decided by the Lahore High Court (LHC).
The petitions concerned SRO No. 927(I)/ 2019 dated August 9, 2019, issued under Section 3 of the Imports and Exports (Control) Act, 1950, whereby the federal government amended the Import Policy Order to place goods originating from India and Israel on the prohibited import list.
The restrictions were subsequently incorporated into the Import Policy Order, 2020.
According to the judgment, although the LHC upheld the vires of the impugned policy, it issued additional directions requiring the Federal Government, through the Commerce Division, to appoint an officer to hear the grievances of the petitioners regarding the import restrictions.
The Federal Constitutional Court, while maintaining the constitutional validity of the policy itself, set aside the operative directions issued by the Lahore High Court, holding that the same travelled beyond the constitutional limits of judicial review under Article 199 of the Constitution.
Appearing on behalf of the Secretary, Revenue Division and the Federal Board of Revenue, Advocate Supreme Court Hafiz Ahsaan Ahmad Khokhar advanced extensive constitutional and legal arguments regarding the limits of High Court jurisdiction, separation of powers, and the exclusive constitutional domain of the Federation in matters of trade and foreign policy.
He argued before the Bench that import regulation under the Imports and Exports (Control) Act, 1950, constitutes an integral component of the Federation’s sovereign economic and foreign policy framework. Decisions relating to trade embargoes, import prohibitions, diplomatic trade restrictions, and cross-border commercial regulation are policy determinations constitutionally entrusted to the Federal Government and are insulated from judicial substitution unless shown to be patently unconstitutional.
Khokhar submitted that the impugned restrictions were rooted in considerations of national sovereignty, diplomatic policy, regional security dynamics, and international state relations, areas where constitutional courts traditionally exercise judicial restraint owing to the political-question doctrine and the constitutional principle of separation of powers.
He further argued that once the Lahore High Court had itself concluded that the impugned SRO and Import Policy Orders were intra vires the Constitution, no further constitutional basis remained for issuing mandatory directions to the executive branch.
According to the submissions, the High Court could not simultaneously uphold the legality of a policy while restructuring its administrative implementation through judicial commands.
The counsel emphasised that the constitutional petitions before the Lahore High Court were framed entirely as challenges seeking declarations that the impugned policy was unconstitutional, void ab initio, and ultra vires. Such proceedings, he argued, invoked certiorari jurisdiction alone and did not contain any prayer seeking a writ of mandamus.
He contended that by converting proceedings seeking declaratory relief into a mechanism for issuing executive directions, the High Court effectively assumed suo motu jurisdiction — a constitutional power not vested in High Courts under Article 199.
Relying upon Article 4 (2) (c) of the Constitution, Khokhar submitted that no person or authority can be compelled to perform an act not required by law. Therefore, courts themselves are constitutionally restrained from imposing duties, administrative frameworks, or institutional mechanisms unsupported by statute.
Copyright Business Recorder, 2026