TERENCE J SIGAMONY
ISLAMABAD: The Supreme Court was apprised that successful Reko Diq settlement will restore Pakistan’s international credibility and the country will again feature as a foreign investment destination on the world map.
Zahid Ibrahim, one of the amici curiae, submitted that the fact that the negotiations were effectively concluded by the previous political government and the commitment to see these through has been reinforced by the present coalition government is indeed a new start to build consensus across the political divide to advance Pakistan’s economic progress.
A five-judge bench, headed by Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, and Justice Jamal Khan Mandokhail, on Monday, heard the presidential reference on the Reko Diq project.
He highlighted two foremost consequences of the Reko Diq settlement. “Firstly, that it will put to rest the outstanding international obligation of payment of US$6.5 billion Award, which continues to carry a daily interest of US$740,000 as well as the additional estimated liability of US$2 billion if the ICC Arbitration proceedings continue to its logical end.” “Secondly, and equally significant is that after almost three decades it revives the project originally conceived by CHEJVA’s execution in 1993 and the journey to avail the benefits promised to the people of Balochistan.”
He further submitted; “There is an equally important third advantage, i.e., the Reko Diq settlement restores Pakistan’s economic credentials on the world stage and will resonate much beyond the mineral rich hills of Chagai.” “Yes, the foreign mining companies in TCCA will stand to recover their investments, but Pakistan too stands to gain,” he added.
Ibrahim argued that the proceedings in the Balochistan High Court (BHC) were instituted on the basis of allegations made in a newspaper article dated 26.5.2004, which were ironically withdrawn by the same newspaper a week later.
He submitted that the Balochistan government vigorously defended CHEJVA before the BHC as legal and transparent. However, its representatives made a drastic and unexplained reversal during the pendency of the proceedings in the Supreme Court where it resiled from its stated position and instead targeted CHEJVA as illegal and contrary to the interests of Balochistan.
Ibrahim stated that the Presidential Reference is an appropriate stage for all concerned to reflect on the perils of making reckless allegations of corruption and the damage caused by such allegations when the notoriety fades in the face of a lack of actionable evidence. Legal historians have not judged us well every time our self-righteous exuberance of anti-corruption has diluted our adherence to international contracts. This is our occasion to make amends and honour our international obligation.
“Not only did the proceedings in the Supreme Court in the Maulvi Abdul Haq case reverberate with allegations of corruption, but the President’s Reference records in its background facts that the Government of Pakistan made a formal application on 2.9.2015 before the ICSID Tribunal that TCCA’s investment has been procured through corruption. However, after two years on 10.11.2017, the ICSID Tribunal dismissed such allegations,” he added.
He stated that the settlement agreements arrived at after seven years of negotiations, which have been annexed with the President’s Reference, would have recorded broad assurances and warranties from the parties that no commissions, fees, payments, by any name whatsoever were procured, paid or promised in arriving at such settlements.
He further said that the Reconstituted Reko Diq Mineral Agreement draft Clause 14.18 (at pg 212) includes the provision of anti-bribery compliance. Similar provision is also provided in the Reko Diq Project Joint Venture Agreement Clause 18.13 (at page 858). However, such provisions could be more emphatic in also covering the negotiations leading to the procurement of the Implementation and the Definitive Agreements.
Salman Akram Raja, who was appointed amicus curiae, submitted that a federal statute can only confer powers and impose duties upon a province or officers and authorities thereof in terms of Article 146(2) of the Constitution of 1973. Such conferral of powers and imposition of duties may only be made with respect to matters that are not otherwise in the provincial domain.
No immunity from a judicial review is available through laws that are continued as existing laws. While courts are required to apply existing laws with necessary adaptation no such adaptation can cure or overlook a law that is in violation of a fundamental structural feature of the constitution.
He asked the court, an appropriate advisory opinion may kindly be furnished with respect to the legality of the Act 1948 and also the Balochistan Regulation of Mines Oilfields and Mineral Development (Government Control) Act, 1948 through which a provincial statute has purported to amend a federal statute.