Pakistan being a common law country has a dynamic legal system, which generates interpretation of law in the form of legally binding precedents. The interpretation of law by the courts of the country is a complicated process which may leave a lot of room for disagreement and it may seem meaningless to some. Every forum which is entrusted with this task realises that their decision is open to judicial scrutiny of the higher form.
Over the years, the autonomous bodies in quasi-judicial role have emerged as important source of executive interpretation and implementation of law. These bodies enjoy functional freedom in the form of autonomy, which is deficient in the normal practice of government institutions. With great power comes the great responsibility; as the saying goes. The freedom does come with a corresponding responsibility of bearing the burden of judicial scrutiny which is onerous.
The judicial review is one of the most important features of the courts in our country and it becomes even more important in the matter of implementation of anti-dumping duties ordinance, being the brain child of the international treaty. The new models of legislations for the regulatory bodies are very sophisticated documents, with special focus to the structure of the regulatory body, its composition, its functions, and its role as regulator.
The National Tariff Commission Act of 1990 is responsible for the creation of National Tariff Commission. However, the Anti-Dumping Duties Ordinance of 2000, which seemingly entrusts the Commission with the task of regulation of illegal trade practices, is a separate statute. This dichotomy has created many challenging scenarios. The real problem is that the courts have to answer three categories of questions, once a case is brought before them for adjudication; first of which is interpretation of NTC Act, Second is the interpretation of the Ordinance in light of the overriding provisions and principles of the Constitution, the general principles of law, precedents set out by the higher courts, etc; and third questions is with regards the relationship between the Act and Ordinance.
The essence of WTO law is to make it legally binding upon the sovereign nations, who obviously accede to the treaty obligations. The legal nature of the WTO Law has helped the system to sustain itself by bringing in transparency and objectivity. The same holds true for the implementation of trade remedy laws in Pakistan. The legal expertise in the field of law should be enhanced which will ensure that the objectives of law and the intention of legislature does not become subservient to accounting principles.
The knowledge of accounting is an important aspect of the calculations of dumping margins, etc, however, the countries all over the world ensure that the objectivity is ensured through objective interpretation of law and then applying the principles of accounting to the system in place. If, however, the investigations follow a reverse pattern, that is, to give precedence to the accounting principles and then trying to interpret the law according to the situation, leads to ambiguity and impairment of rights of the parties, loss of trust in the authority and results in the increased litigation.
The courts can then try and bring the objectivity back to the otherwise highly subjective process, but the process can never fully be reversed and the remedy can never fully remedy the injury caused.