PESHAWAR: A Peshawar High Court bench has declared illegal and without lawful authority the enactment of the Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016, and the relevant rules framed under it.

Chief Justice Yahya Afridi and Justice Abdul Shakoor has ruled: “Khyber Pakhtunkhwa Mineral Sector Governance Act, 2016 and the Khyber Pakhtunkhwa Mineral Titles (Large and Small Scale Mining) Rules, 2017 Rules (the 2017 Rules) made thereunder are without lawful authority and hence of no legal effect.”

The bench pronounced the order while disposing of a petition filed by the Frontier Mines Owners Association against that law and rules and subsequent steps taken by the provincial government under them.

The bench had reserved its judgment on July 6, and has pronounced its order on Thursday.

In its detailed judgment, the bench has also declared illegal the creation of the Mineral Investment Facilitation Authority. “Khyber Pakhtunkhwa Mineral Investment Facilitation Authority (MIFA) created under the Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016 would also lack legal authority.”

However, the bench gave temporary protection to the decisions of the MIFA and steps taken by the government under the said Act and Rules for a period of 60 days.

“All actions and decisions taken by the MIFA and the respondents under the Act and the Rules would hold the field for a period of sixty days from the date of this decision for the Provincial Government to take appropriate legislation measures,” it ruled.

The bench had reserved its judgment after hearing detailed arguments advanced by the petitioner’s lawyer, Afnan Karim Kundi, and additional advocate general Waqar Ahmad Khan.

The petitioner had requested the court to declare the said Act and rules unconstitutional as the provincial government had not fulfilled legal requirements before enacting this law as approval was not taken from the provincial cabinet.

Mr Kundi had argued that without the approval of the provincial cabinet, the Khyber Pakhtunkhwa Mines and Minerals Development and Regulation Ordinance 2016 was promulgated in July 2016.

He had added that the said ordinance was tabled before the KP Assembly and was passed by the Assembly as a bill on Dec 20, 2016, and the KP Governor gave assent to the said bill on Dec 30, 2016.

Referring to a Supreme Court judgment delivered on Aug 18, 2016, in the Mustapha Impex and others case, the lawyer had contended that the court had ruled that the federal government was the collective entity described as the cabinet constituting the prime minister and federal ministers.

He added that the same judgment applied to the provincial government.

Accepting the contention of the petitioner’s counsel, the bench ruled: “It is an admitted position that apart from the Ordinance promulgated on 25.07.2016; the amendments introduced therein, the bill laid down before the Provincial Assembly; the amendments introduced in the Bill, and finally the ascent thereto by the Governor were acts having taken place after the pronouncement of Mustafa Impex’s case and that too without the approval of the Provincial Cabinet. This being the legal position, the Act of 2016 and the 2017 Rules are clearly without lawful authority and thus a nullity in the eyes of law.”

The bench also examined the contention of the AAG that the Ordinance was introduced as a Bill before the Provincial Assembly in pursuance of Article 158 and through the deeming provision contained in sub-article (3) of Article 128 of the Constitution, the same did not require the consent of the Provincial Cabinet.

The court ruled: “This Court is not in consonance with this line of the agreement advanced by the worthy Advocate General, simply for the reason that when the very foundation of the original Ordinance lacked constitutionality and authority under the law, then no superstructure could be built thereon. In the present case, the Bill was introduced after the decision of Mustafa Impex’s case hence, the Ordinance though promulgated prior to the said decision had to be legally cleansed by the approval of the Provincial Cabinet before it would be considered by the legislature.”

“This crucial omission on the part of the Provincial Government had rendered the said legal enactment to be without lawful authority,” the bench ruled.

Published in Dawn, August 20th, 2017

Opinion

Editorial

‘Source of terror’
Updated 29 Mar, 2024

‘Source of terror’

It is clear that going after militant groups inside Afghanistan unilaterally presents its own set of difficulties.
Chipping in
29 Mar, 2024

Chipping in

FEDERAL infrastructure development schemes are located in the provinces. Most such projects — for instance,...
Toxic emitters
29 Mar, 2024

Toxic emitters

IT is concerning to note that dozens of industries have been violating environmental laws in and around Islamabad....
Judiciary’s SOS
Updated 28 Mar, 2024

Judiciary’s SOS

The ball is now in CJP Isa’s court, and he will feel pressure to take action.
Data protection
28 Mar, 2024

Data protection

WHAT do we want? Data protection laws. When do we want them? Immediately. Without delay, if we are to prevent ...
Selling humans
28 Mar, 2024

Selling humans

HUMAN traders feed off economic distress; they peddle promises of a better life to the impoverished who, mired in...