ISLAMABAD – Upholding the government decision regarding the ban on imports of books from India and Israel, the Federal Constitutional Court (FCC) has held that the right to read is not absolute and may be subject to restrictions as imposed by law, including those justified on grounds of foreign policy. The court also noted that the foreign policy of the federal government cannot be examined in judicial review by any court, as its review or reconsideration is the sole prerogative of the executive.
In a 21-page judgement authored by Justice Aamer Farooq, the court upheld 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.
Right to Read Is Qualified
“We have recognised the right to read as flowing from the right to life under Article 9 of the Constitution; this right is not absolute but qualified. Article 9 itself expressly provides that no person shall be deprived of life or liberty ‘save in accordance with law’,” the judgement stated.
“In the present case, the law has taken its course. The Federal Government has acted within its domain of executive authority by regulating trade,” the judgement added.
Executive Authority and Foreign Policy
The FCC judgement noted that the executive authority of the federation vests in the federal government and is exercised by the prime minister and the cabinet in the name of the president. “Under Article 97 of the Constitution, the Federation is empowered to exercise executive authority in respect of matters falling within the legislative competence of parliament.”
“To determine the extent of the Federation’s executive power, it is therefore necessary to examine the scope of Parliament’s lawmaking powers. At this stage, we take note of the ground relied upon by the Petitioners for imposing the impugned ban, namely considerations of national security and foreign policy. We refrain from examining the nature of Pakistan’s relations with the said countries or the policy reasons underlying the adoption of such measures,” the judgement said.
Judicial Restraint
The judgement further said that courts have consistently held, over the years, that they ought not to interfere in matters pertaining to national security and foreign policy. The court noted that even though the Lahore High Court had 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 executive challenged those directions in the top court, and the FCC has now upheld the government’s position.
Analysis: A Significant Precedent
The FCC’s ruling establishes a significant precedent regarding the justiciability of foreign policy decisions. By holding that the foreign policy of the federal government cannot be examined in judicial review, the court has affirmed the executive’s primacy in this domain.
The recognition that the “right to read” — derived from the right to life under Article 9 — is not absolute is also significant. While the court acknowledged that reading is a fundamental right, it held that this right can be restricted by law, including for reasons of foreign policy and national security.
The decision to uphold the ban on imports of books from India and Israel reflects the court’s deference to executive authority in matters of international relations. Given the ongoing tensions with both countries, the court appears reluctant to second-guess the government’s assessment of national security and foreign policy interests.
For publishers, booksellers, and readers affected by the ban, the ruling closes the door to legal challenge. However, the judgement leaves open the possibility that the government could lift the ban in the future, should foreign policy considerations change.
