IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.D-3876 & D-3877 of 2011
Junaid & M/s Al-Raziq PVT
Versus
Federation of Pakistan & others
BEFORE:
Mr. Justice Sajjad Ali Shah
Mr. Justice Mohammad Shafi Siddiqui
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Date of Hearing: |
24.08.2012 |
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Petitioners: |
Through Mr. Omair Nisar Advocate |
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Respondent No.1: |
Through Mrs.Sheeraz Iqbal, standing counsel |
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Respondent No.2: |
Through Mr. Nasrullah Awan Advocate |
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Respondent No.3: |
Through Mr. Shakeel Ahmed Advocate |
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Mohammad Shafi Siddiqui, J.- These are two Constitution Petitions, out of which one is filed by manufacturer of plastic products and the other by commercial importer of plastic products, PVC waste and plastic scrap wherein the petitioners have prayed as under:-
“1. This Honorable Court may be pleased to declare that the items falling under PCT Heading 3915.1000 (polymers of ethylene), 3915.2000 (polymers of styrene), 3915.3000 (polymers of vinyl chloride) and 3915.9000 (other plastics) are non-hazardous items/products under the international and Pakistani law and therefore import thereof cannot be restricted by the respondents.
2. This Honorable Court may be pleased to further direct that the imposition of restriction of import of items mentioned in Clause 1 above as per Serial No.51 of Appendix B to the Import Policy Order, whereby only “manufacturers” are allowed to import the said items, is in violation of Article 25 interalia of the Constitution and hence the said restriction is liable to be lifted/removed and every commercial importer is allowed to import the same.
3. This Honorable Court may be pleased to declare that in absence of any specific national legislation, imposition of restriction over import of items mentioned in Clause 1 above, is illegal, unlawful and corum non judice.
4. This Honorable Court may be pleased to allow the Petitioner interalia other commercial importers to import the items mentioned in Clause 1 above, without any restrictions and/or hindrance, upon payment of applicable duties and taxes.
5. This Honorable Court may be pleased to direct the Respondents not to cause any harassment and/or intimidation to the Petitioner related to the instant matter. ”
2. Since a common question of law on common facts are raised with common prayers, we would therefore, like to dispose off these two petitions by a common judgment.
3. Mr. Omair Nisar, learned counsel appearing for the petitioner in both the petitions submitted that these two petitions are filed against the inclusion of plastic scrap falling in PCT heading 3915.1000, 3915.2000, 3915.3000 and 3915.9000 in the list of restricted items listed in Appendix ‘B’ of the Import Policy Order 2010-11, restricting import thereof to the manufacturers only. He claims that consequently such restriction and inclusion of these items in the restricted list, as shown in Appendix ‘B’ of the Import Policy Order 2010-11, restrict the commercial importers from importing the same thereby hindering business of huge number by entrepreneurs. It is submitted by the learned counsel that prior to this import policy, commercial importers were dealing in the import of such items and were trading in the local market.
4. It is submitted by the learned counsel that the petitioner’s import of such plastic waste was subject to Basel Convention and the Control of Transboundary Movements of Hazardous Waste And Their Disposal 1989. It is submitted that the Government of Pakistan through respondent No.1 had been allowing commercial import of such waste, pairings and hazardous scrap of plastic falling under the subject PCT heading, however, recently the items falling under the said PCT heading have been placed in Appendix ‘B’ of Import Policy 2010-11 at Serial No.51 and restricting import thereof to:
(a) manufacturers for their own use and
(b) subject to clearance certificate issued by the Government Agency of the exporting country to the effect that the goods are not hazardous and comply with the provisions of Basel Convention.
5. Learned counsel further submitted that after pronouncement of exhaustive list of hazardous items in the Appendix ‘A’ at Serial No.14 of the Import Policy Order 2010-11, available at page 51, there is no need as such to restrict import of item at Serial No.51 of Appendix B. In addition, learned counsel submitted that these are “green list” items which should be considered as freely importable items due to their non-hazardous nature. He further submitted that the commercial importers as well as manufacturers within Pakistan import considerable quantities of plastic waste which is being used in manufacturing of finished plastic products and they also trade with small and medium scale manufacturers. He submitted that since the small and medium scale manufacturers are not financially sound, therefore, the restriction, as prescribed above, is discriminatory as other commercial importers are restrained from importing the above goods for trading purpose. The commercial importers mostly import these goods to trade with small and medium scale manufacturers who are otherwise unable to import due to financial constraints.
6. He submitted that due to this import policy order 2010-11, Appendix ‘B’ the manufacturers as well as commercial importers are facing immense difficulties. Learned counsel vehemently argued that imposition of restriction of import of the subject items only for manufacturers is a sheer discrimination against commercial importers and is against Article 25 of the Constitution. Per learned counsel it discourages a class of people to earn their livelihood as against other.
7. Learned counsel for the petitioners in support of his contentions has also relied upon a case reported in PTCL 2003 CL 144 which says that the act which is established to be malafide and colourable exercise cannot be regarded as an action in accordance with law and the rights guaranteed under the Constitution particularly Article 25.
8. As against this Mr. Shakeel Ahmed, learned counsel for respondent No.3, submitted that the restriction has been imposed to deter unchecked importers of such scrap which could be hazardous and also to check its use for manufacturing of bags for food. He submitted that if the importers are allowed to import such products it would be impossible to ensure any type of check on the product of these goods and it is for this reason that the import policy on account of health and safety reason and for public interest has restricted the import only to manufacturers for their own consumption and that they are accountable for such import.
9. Mrs. Sheeraz Iqbal, learned standing counsel appearing for Federation of Pakistan, and Mr. Nasrullah Awan, learned counsel appearing for respondent No.2, also support the arguments of Mr. Shakeel Ahmed.
10. We have heard the learned counsel appearing for the parties and have perused the The main contention of the learned counsel for the petitioners is that the in-fact restriction of these waste, pairings and scrap of plastics to the manufacturers only is discriminatory as it is only allowed to be imported by the manufacturers for their own use. These conditions are mentioned against Item No.51 in Appendix ‘B’, which is reproduced as under:-
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51 |
3915.1000 3915.2000 3915.3000 3915.9000 |
Waste, parings and scrap of plastics |
[Importable by manufacturers only for their own use subject to the condition that they shall furnish to Customs authorities a certificate from the relevant government agency of the exporting countries that the goods are not hazardous and comply with the provisions of Basel Convention. |
11. Constitution of Islamic Republic of Pakistan permits reasonable classification and recognizes and gives effect to the categories where the rights are to be protected as a class and there is no element of discrimination or arbitrariness in the same. Such classifications, as permissible under Article 25, however, is to be based on intelligible differentia which distinct and distinguish persons group together from those who are left out. Thus mere differentiation and non-equality of treatment would not per se amount to discrimination unless it is shown to be apparent malafide and arbitrary. It is thus not enough to say that the piece of legislation or a policy formulated thereunder is discriminatory but it is to be substantiated by applying certain well entrenched principle on the subject of discriminatory legislation.
12. Hon’ble Supreme Court while dealing with the subject issue has laid down renowned principle in the case of Pakcom Limited v. Federation of Pakistan reported in PLD 2011 SC 44 as under:-
“(i) The expression ‘equality before law’ or the ‘equal protection of law’ does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike.
(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the state has no power to distinguish and classify persons or thing for the purpose of legislation.
(iii) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The state has the power to classify persons or things and to make laws applicable only to the persons or things within the class.
(iv) The classification, if it is not to offend against the constitutional guarantee must be based upon some intelligible differential bearing a reasonable and just relation to the object sought to be achieved by the legislation.
(v) Reasonableness of classification is a matter for the courts to determine and when determining this question, the courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of legislation.
(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge to the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.
(vii) One who assails the classification must show that it does not rest on any reasonable basis.
(viii) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards or norms for the guidance of the designated authority in exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the State would be condemned as unconstitutional.
(ix) Where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or things, without laying down any principle or policy to guide the Government in exercise of discretion, the statute will be struck down on the ground of making excessive delegation of power to the Government so as to enable it to discriminate between the persons or the things similarly situated.”
13. The above principles were also highlighted by the Hon’ble Supreme Court earlier in case of Government of Balochistan v. Azizullah Memon reported in PLD 1993 SC 341.
14. As we see Appendix ‘B’ at Serial No.51, it reflects that the legislature in its wisdom has formulated a policy to restrict the import of PVC waste, parings and scrap of plastics for the manufacturers only so that its hazardous effects can be checked with minimum inconvenience and risk and hence could be taken care of. In view of the above principle, learned counsel for the petitioners was asked time and again to explain to this Court as to whether the importers who deals with these goods commercially by trading with others and manufacturers who are allowed import only for their own use subject to conditions mentioned, sails in the same boat so as to consider them as one class of citizen, the learned counsel has feebly argued that the manufacturers under the garb of this restriction are also dealing as a commercial importer as they are also trading with small and medium scale manufacturers.
15. While reading the subject provisions we are unable to form this view as it does not provide any room for manufacturers to sell as the importer would do and any violation would certainly open them for consequences but on these arguments petitioners cannot consider themselves as being discriminated or could consider themselves as one class. While dealing with the petition under Article 199 of the Constitution we are also unable to enter into this debate as to whether the manufacturers whom we consider a separate and distinct from importer and different class are misusing or acting as an “importer” to trade with others.
16. While dealing with the question as to the disputed question of facts the Hon’ble Supreme Court in the case of Pakcom Limited (Supra) has also held as under:-
“The superior Courts should not involve themselves into investigation of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possibly only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent.”
17. Dealing with the same situation, the Indian Supreme Court in case of Charanjit Lal v. Union of India (air (38) 1951 Supreme Court 41) has held that:-
“A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it. Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the thing in respect of which it is proposed.
The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attracts it to show that there has been a clear transgression of the constitutional principles.”
18. Similarly in the case of NWFP Public Service Commission v. Muhammad Arif (2011 SCMR 848) the Hon’ble Supreme Court has observed that reasonable classification which were not arbitrary or violative of doctrine of equality could not be questioned.
19. In the same case of Pakcom Limited the Hon’ble Supreme Court has dealt with the power to frame the policy to regulate the affairs and so also the provisions of Article 18 and 25 of the Constitution. The relevant paragraphs of which are as under:-
“52. The interpretation of Article 18 has been made variously and the judicial consensus seems to be that the “right of freedom of trade, business or profession guaranteed by Article 18 of the Constitution is not absolute, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law. Such right is therefore not unfettered. The regulation of any trade or profession by a system of licensing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of the right. They must, however be reasonable and bear true relation to ‘trade’ or profession and for purposes of promoting general welfare. Even in those countries where the right to enter upon a trade or profession is not expressly subjected to conditions similar to this Article, it was eventually found that the State has, in the exercise of its police power, the authority to subject the right to a system of licensing, i.e., to permit a citizen to carry on the trade or profession only if he satisfies the terms and conditions imposed by the prescribed authority for the purposes of protecting and promoting general welfare….
53. The competent authority is at liberty to regulate its affairs and “a form of regulation is unconstitutional only if it is arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. This principle of regulation of trade has been given judicial sanction in Pakistan…..
54. ….
55. ….
56. Now we intend to examine the provisions as enumerated in Article 25 of the Constitution which has been examined in depth on various occasions in different cases and judicial consensus seems to be that this Article “enjoins that all citizens are equal before law and are entitled to equal protection of law, i.e., all persons subjected to a law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. The equality should not be in terms of mathematical calculation and exactness. It must be amongst the equals. The equality has to be between persons who are placed in the same set of circumstances. The dominant ideal common to both the expressions is that of equal justice. The dominant ideal common to both the expressions is that of equal justice. The guarantee contained in this right is only this – that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes in like circumstances. ….
57. It must, however, be kept in view that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the “equality clause particularly the provision about the equal protection of the laws does not mean that all citizens shall be treated alike under all set of circumstances and conditions; both in respect of privileges conferred and liabilities imposed. Whatever else the expression ‘equal protection of law’ may mean it certainly does not mean equality of operation of legislation upon all citizens of the State. (Mohd Mukhtar v. Special Tribunal PLD 1977 Lah. 524). Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes of the ordinary law of the land.………………… In out view the classification which is not arbitrary, capricious or in violative of the doctrine of equality cannot be questioned. It is the basic requirement of law that all persons shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed…….”
20. We are also conscious of the fact that while exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan we cannot enter into this debate that the items listed at Sr. No.51 are non-hazardous in nature and also that once in Appendix ‘A’ Serial No.14 the PCT codes of hazardous waste have been defined, which per learned counsel is the exhaustive list, why a separate PCT Code for scrap of plastic have been defined. This policy has been formulated by the Government to restrict its import to the extent of manufacturers only so that its use by the manufacturers may be checked.
21. Since it is a government policy who have restricted the import of such goods for manufactures which is not shown to be arbitrary or a colourable exercise of power we do not consider fit to interfere with the policy decision of the government as it is within the domain of their jurisdiction. Similar stance was taken by a Division Bench of this Court in case of Shahzad Riaz V. Federation of Pakistan reported in 2006 YLR 229 wherein it has been held as under:-
“While exercising jurisdiction falling within the ambit of judicial review of administrative actions, it is equally important to ensure that no encroachment is made on the powers vested in executive and no interference is made until and unless any such decision/executive order is shown to be violative of any provision of the Constitution or is established to be in derogation or violation of the statutory law---Such principles are applicable when there is any case of judicial review of administrative action---Principles however, are different when the question relates to the jurisdiction of civil Court for the reason that the civil Court is the Court of ultimate, plenary and general jurisdiction, which shall exercise the jurisdiction in respect of all civil matters unless the jurisdiction is expressly barred.”
22. As regards the case law cited by the learned counsel for the petitioner as PTCL 2003 CL 144, learned counsel has failed to establish that any act of the respondents is malafide and in colourable exercise of power as there is no discrimination within a class of people.
23. In response to the contention of the learned counsel for the petitioners that the condition of procuring a certificate from government agency of the exporting country as to non-hazardous nature as per Basel Convention is malafide as no government agency is willing to give such certificate of the said items, we are of the view that the Basel Convention, which is a root document, approves the import of such goods subject to a certificate from exporting country which itself is sufficient to uphold the restriction and condition for such import and hence there is no malafide nor arbitrariness in imposing of such condition. This is not for the Court to see if (according to the learned counsel) the concerned agencies of the exporting countries are not providing such certificate. One such certificate which is filed by the petitioner’s counsel in support of his arguments shows that importer perhaps has asked a wrong ministry to claim such certificate which only confirms that said ministry does not issue the same. Such assertion of the learned counsel is against the concept of Basel Convention which is signed by most of the countries of the world and hence the arguments to that effect are untenable.
24. To our mind the conditions for the import of items shown above appears to be logical and in consonance with the Basel Convention. Learned counsel has not pointed out any infirmity to the conditions shown above. These are the policy matters and since it is in consonance with Basel Convention there appears to be no malafide or colourable exercise of power. We are unable to interfere with the policy decision of the government as it is within the domain of jurisdiction of authority taking the policy decisions. In the matter of policy decision, the government is the best judge and it is not for the Court to sit on the policy matters unless they appear to be apparently malafide on account of colourable exercise of or abuse of power.
25. Thus, in view of the above discussion we reached a conclusion that these petitions have no substance and are accordingly dismissed along with pending applications.
Karachi. Judge
Judge