Hunting of Houbara Bustard and International Convention on Conservation

Hunting of Houbara Bustard and International Convention on Conservation Case Laws Civil Law Constitutional Law Environment Hunting International Convention & Treaty Knowledge - Civil Law Knowledge - Constitutional Law Litigation & Arbitration Solutions - Civil Law Solutions - Constitutional Law Supreme Court Supreme Court Jurisdiction 184(3) Supreme Court Review Supreme Court Review - Scope Mr. Justice Mian Saqib Nisar in his judgment has decided the issue regarding hunting of houbara bustard and International convention on conservation of migratory species in Civil Review Petitions No. 561 of 2015 etc.

1. Through the aforesaid petitions filed under Article 188 of the Constitution read with Order XXVI, Rule 1 of the Supreme Court Rules, 1980, review has been sought of the consolidated judgment dated 19-08-2015 passed by this Court in Civil Petitions Nos. 250/2015 and CMA No. 1435/2015 in CP No. Nil/2015 filed by the Federation of Pakistan through M/O Foreign Affairs, Civil Petitions Nos. 253 and 574 of 2015 filed by one Atta-ur-Rehman, Civil Petitions Nos. 20-Q and 21-Q of 2015 filed by Government of Balochistan, etc. challenging the validity of the common judgment dated 27-11-2014 passed by the High Court of Balochistan, Quetta in C.P. No. 17 & 347 of 2011; Civil Petition No. 145/2015 filed by Province of Sind, etc. against the judgment dated 02-01-2015 passed by the High Court of Sindh, Karachi in Const. Petition No. D-5806/2014; and Constitution Petition No. 38/2015 filed by one Aamir Zahoor-ul-Haq under Article 184 (3) of the Constitution.

2. Brief facts necessary for the decision of the review petitions are that various constitution petitions assailing the validity of letters issued by the Ministry of Foreign Affairs, Government of Pakistan informing Arab dignitaries the area specified for the hunting of Houbara Bustard for the hunting season 2013-2014 and 2014-2015 were filed in the High Courts of Balochistan and Sindh respectively. The learned High Court of Balochistan struck down the impugned letter being unlawful and directed the government of Balochistan to perform its duties in accordance with the Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 (Balochistan Act, 2014). Learned High Court of Sindh struck down the notification dated 23-10-2014 issued by the Sindh Government under section 40 (1) of the Sindh Wildlife Ordinance, 1972 (Sindh Ordinance, 1972) removing Houbara Bustard from the category of protected animal and placing it in the category of game animal and consequently the letter issued by Ministry of Foreign Affairs was declared being without lawful authority. Aggrieved of the judgments the Federation, Government of Balochistan, Province of Sindh and one Atta-ur-Rehman preferred the above mentioned Civil Petitions. During the pendency of the Civil Petitions one Aamir Zahoor-ul-Haq also filed a Constitution Petition before this Court under Article 184 (3) of the Constitution with the prayer that the Ministry of Foreign Affairs and Wildlife Departments be refrained from issuing any permit for hunting of Houbara Bustard. This Court allowed the Constitution Petition No. 38/2015 while the Civil Petitions filed by the Federation and Province of Balochistan and Sindh were dismissed vide Judgment dated 19-08-2015 as under:

“23. Therefore, for the aforesaid reasons, Civil Petition for Leave to Appeal No.145 of 2015, filed by the Province of Sindh, is dismissed and Constitutional Petition No.38 of 2015, filed by citizen-lawyer Mr. Amir Maroof Akhtar is allowed in the following terms:

(i) The Notification is declared to be ultra vires the Sindh Wildlife Protection Ordinance and struck down;

(ii) Neither the Federation nor a Province can grant license/permit to hunt the Houbara Bustard;

(iii) The Federal Government is directed to ensure that its obligations under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) and the Convention on Migratory Species of Wild Animals (CMS), which have been recognized by Pakistani law, are fulfilled and issue requisite directions to the Provinces in this regard in terms of Article 149 (1) of the Constitution; and

(iv) The Provinces to amend their respective wildlife laws to make them compliant with CITES and CMS and not to permit the hunting of any species which is either threatened with extinction or categorized as vulnerable.”

3. Leading the arguments, Mr. Salman Aslam Butt, the learned Attorney General argued with regard to Para 23(i) that notification issued by the Sindh Government being temporary in nature has lapsed with time and is neither pressed nor defended. With regard to Para 23 (ii) he maintained that perusal of paragraphs 11 and 14 of the judgment reveals that this Court was mindful of a situation where the global population of Houbara Bustard could be at a level where sustainable hunting under the law could be allowed. However by placing a perpetual ban through Para 23 (ii) the judgment has effaced its own reasoning and findings. Further stated that perpetual ban is against the wildlife laws of the country. The vires of those laws have never been questioned, therefore perpetual ban renders them redundant, which is not envisaged under the law and the Constitution. Alluding to international convention on Conservation of Migratory Species of Wild Animals (CMS), the learned Attorney General maintained that CMS does not obligates Federation or Provinces to place a ban on the hunting of Houbara Bustard rather the same allows sustainable taking (hunting) of Houbara Bustard as best mean of conservation. He stated that according to WWF Pakistan the population of Houbara Bustard in Pakistan has remained stable in the last twenty year, which shows that sustained hunting is not in any way affecting the population of Houbara Bustard. Learned Attorney General, therefore, submitted that Para 23 (ii) of the judgment be reviewed to the extent it allows hunting of Houbara Bustard in accordance with the law.

4. With regard to the direction contained in Paragraph 23 (iv) of the judgment, the learned Attorney General contended that direction to legislature to legislate on a particular subject is beyond the pale of jurisdiction of the Apex Court. In this regard he relied upon the case tiled Al-Jehad Trust through HabibulWahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan (1999 SCMR 1379).

5. Mr. Razzaq A. Mirza, learned Addl. A. G Punjab submitted that Province of Punjab was not a party to the Petition and any order affecting the rights of the Province of Punjab could not be made. Further stated that Punjab Wildlife Protection Act, 1974 empowers the Provincial Government to allow hunting of various species of wildlife by placing them in the schedule of game animals, therefore permanent ban placed on the hunting of Houbara Bustard is against the law. He also objected to the maintainability of the petition under Article 184 (3) as no question of public importance for the enforcement of fundamental right was raised in the petition.

6. Appearing for the Province of Sindh, Mr. Farooque H. Naek, Sr. ASC maintained that the Province of Sindh was not allowed a proper and due hearing. In this regard it was pointed out that the Civil Petition filed by the Province of Sindh was settled by late Mr. Abdul HafeezPirzada, Sr. ASC of this court, who also appeared in the case on number of dates of hearing, however his request for adjournment was declined despite the fact he was admitted in hospital in UK. Addl. A. G Sindh was asked to argue the case instead. Learned counsel also submitted that this Court erred in law by placing reliance on the judgment of the Sindh High Court tiled Society for Conservation and Protection of Environment (SCOPE), Karachi v. Federation of Pakistan, etc. (1993 MLD 320) while setting aside the notification dated 31-10-2014 issued by the Government of Sindh.

Further information regarding hunting of houbara bustard and International convention on conservation of migratory species can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.