Setting aside its earlier judgment, the top court has lifted ban on the hunting of Houbara bustard, a game bird prized by hunters from the Gulf States who flock to Pakistan every winter.
The Supreme Court’s three-judge bench, headed by former chief justice Justice Jawwad S Khawaja on August 19, 2015 imposed a complete ban on the hunting of the bird.
Later, several petitioners – including federal, Punjab, Sindh and Balochistan governments – had filed review petitions in the apex court, which on December 10 referred the case to Chief Justice Anwar Zaheer Jamali to consider constitution of a larger bench.
The petitioners had argued that they granted special permits of falconry to the Middle Eastern sheikhs on ‘diplomatic grounds’ as they brought ‘investment to the social sector’.
On January 5, Chief Justice Jamali formed a five-judge larger bench to hear the review petitions. Headed by the CJP, the bench comprised Justice Mian Saqib Nisar, Justice Iqbal Hameedur Rehman, Justice Umar Ata Bandial and Justice Qazi Faez Isa. This larger bench heard the case for three consecutive days and later reserved its judgment on January 8, 2016.
On Friday, the top court announced its order, which said: “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 dated 19.08.2015. The Civil Petitions and the Constitution Petition shall be listed for hearing afresh,” it said. The order said that under the laws, the governments of respective provinces are empowered to grant exemption from hunting and capturing of any animal as well as “enjoy power to remove any animal from the protected list and to place it in the category of game animal and vice versa.”
“Role of the judiciary is to interpret laws and not to legislate,” it said. Authored by Justice Mian Saqib Nisar, the 16-page verdict held that examination of the laws clearly shows that permanent ban on hunting of Houbara is not envisaged, adding that under the Balochistan Act, 2014 the bird is listed as a game animal.
“Under the Sindh Ordinance, 1972 the government has the power to add or exclude any animal from the schedule,” it said. The judgment stated that the SC, while placing a complete ban on Houbara’s hunting, had seemingly overlooked the anomaly created by it.
“Our Constitution is based upon trichotomy of power. Each organ of the state has its sphere of jurisdiction and cannot transcend into the domain of the other,” it said.
The bench noted that 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.
“The court is inclined to examine the legal propriety of the discretionary safeguards applied by the provincial governments for assessing their relevance and reasonableness for attaining the objects of wildlife legislation in respect of all vulnerable and threatened game species including Houbara bustard.
“Therefore, we are setting out the matters for hearing afresh, thus leave the above noted proposition open to be examined by the bench hearing the cases,” said the order.
Reacting to the judgment, Kamran Murtaza – who supported the ban on hunting on behalf of a respondent, Muhammad Aslam Bhootani – said it is not understandable that on the one hand, the court is allowing the review petitions and on the other hand, it is fixing the matter for fresh hearing.
He also expressed concern over the non-issuance of Justice Qazi Faez Isa’s dissenting note along with the judgment. The International Union of the Conservation of Nature (IUCN) estimates the global population of Houbara bustards at between 50,000 and 100,000 and includes it on its red list of threatened species.
Published in The Express Tribune, January 23rd, 2016.