SC lifts ban on hunting of Houbara Bustard

New decision says role of judiciary is to interpret laws, not to legislate; each organ of state has its sphere of jurisdiction and cannot transcend into domain of other

ISLAMABAD: The Supreme Court (SC) on Friday allowed hunting of migrant bird Houbara Bustard in Pakistan after setting aside its own judgment, cancelling the licences/ permits granted by the Ministry of Foreign Affairs to foreigners.

On August 19, 2015, a three-member bench of the apex court, headed by former Chief Justice Jawaad S Khawaja, had banned the hunting of migrant bird from Siberia to Pakistan in the winter season.

The court had given its verdict in the constitutional petition, filed by an individual Amir Maroof Akhtar who had challenged the grant of permits and licences by the Ministry of Foreign Affairs to the dignitaries from Middle East.

The court had also declared the Sindh Wildlife Protection Ordinance as ultra vires of the Constitution with the ruling that the Federation and the provinces cannot grant permits and licence to hunt the bird.

Later, the federal government and the provinces of Sindh, Punjab and Balochistan filed a review petition in the apex court with the plea to allow sustainable hunting of Houbara Bustard and a five-member larger bench of the apex court, after hearing the counsels of parties on January 8, 2016, had reserved the judgment. On Friday, the five-member larger bench, headed by Chief Justice Anwar Zaheer Jamali, while announcing the reserved verdict, ruled that in such view of the matter, there is an apparent error on the face of record.

“By majority of four to one (Qazi Faez Isa, J. dissenting), it is held that there is an apparent error on the face of record. We, therefore, allow these review petitions, set aside the judgment delivered on August 19, 2015,” the verdict ruled.

The judgment authored by Justice Mian Saqib Nisar, thesenior-most judge of the apex court, further ruled that the civil petitions and the Constitution petition shall be listed for hearing afresh.

The verdict observed that counsel for the petitioners are unanimous on the point that perpetual ban on hunting of Houbara Bustard is neither envisaged by the wildlife laws of the country nor an obligation under the international conventions.

The court ruled that bare reading of the Balochistan Act 2014, KPK Act 2015, Punjab Act 1974 and Sindh Ordinance 2015 shows that hunting of Houbara Bustard is allowed subject to licence. The Sindh government through the notification dated 31-10-2014 changed the status of the specie from protected to game animal. The notification has been struck down by the Sindh High Court and the civil petition against the said judgment has been dismissed by this court.

“Our Constitution is based upon trichotomy of power,” says the verdict, adding that each organ of the state has its sphere of jurisdiction and cannot transcend into the domain of the other.

The verdict held that the role of the judiciary is to interpret the laws and not to legislate. It thus follows that unless the constitutionality of the law is tested on the touchstone of constitutional provisions and struck down, it will remain law of the land and duty of the court would be to enforce the same.

The verdict ruled that examination of the laws clearly shows that permanent ban on hunting of Houbara Bustard is not envisaged, adding that under the Balochistan Act 2014, Houbara Bustard is listed as game animal. Under the Sindh Ordinance 1972, the government has the power to add or exclude any animal from the schedule.

“This court while placing a complete ban on hunting of Houbara Bustard has seemingly overlooked the anomaly created by it,” the judgment said. The court recalled that in view of the law laid down by this court in the judgment reported as ‘Al-Jehad’ Trust through Habibul Wahab Al-Khairi advocate and nine others v. Federation of Pakistan (1999 SCMR 1379) and other dicta of the court, we also need to examine if a direction can be issued to the legislature by the superior courts to legislate on a particular subject as has been so directed in the judgment under review.

The judgment noted that provincial governments exercise discretionary power conferred by respective provincial laws to classify animals as ‘protected’ or ‘game’ species. During the hearing of these petitions, the attorney general and the counsel for the province of Sindh have referred to limitations and checks imposed by the government on the hunting of Houbara Bustard.

These are reflected, inter alia, in the terms and condition of hunting permits issued by the provincial governments, the creation of protected areas, the scheduling of different areas for hunting during the season and so forth. The criteria and considerations on the basis of which the provincial governments exercise their regulatory power under their respective wildlife legislation have, however, not been shown to the court.