ISLAMABAD: Accusing the Khyber Pakhtunkhwa government of approaching the Peshawar High Court (PHC) “with unclean hands” for the resolution of a dispute, the federal government on Thursday rushed an appeal, challenging the high court’s Oct 3 interim order staying privatisation of the Oil and Gas Development Company Limited (OGDCL).

Realising the urgency of the matter, the appeal will be taken up on Friday by a two-judge Supreme Court bench consisting of Justice Ejaz Afzal Khan and Justice Gulzar Ahmed.

Know more: High court stays imminent sale of OGDCL shares

The Cabinet Committee on Privatisation (CCOP) as well as the Privatisation Commission (PC) had decided to put 10 per cent or 322 million ordinary shares of the government in OGDCL on sale for international and domestic investors on Oct 3, 2013 and Jan 8-9, 2014 respectively. Before the decision, the PC’s board, on April 22, 2014, had even approved the appointment of a consortium consisting of Messers Merrill Lynch International, Citigroup and KASB Bank to act as financial advisers for the sale.

But the decision was challenged by the KP government before the PHC, and a division bench of the court stayed the federal government’s decision on Oct 3.

Also read: OGDCL earns record Rs124bn in FY14

Now, the federal government through a petition jointly submitted by the petroleum secretary, OGDCL and the PC, has asked the apex court to suspend the high court’s interim order.

The appeal deplored that the KP government, while challenging the privatisation process, concealed important facts with mala fide intent and thus invoked the discretionary jurisdiction of the high court “with unclean hands”, especially when it was not an aggrieved party.

Therefore, the KP government was not entitled to any discretionary relief, the appeal urged while highlighting that the provincial government was legally obliged to implead the federal government as a party, which it did not, in the first litigation before the high court. This was necessary since the original decision was made by the federal cabinet.

The appeal reminded the apex court that the constitutional change brought about by the 18th Amendment in Article 172 of the Constitution was prospective having no bearing upon the existing commitments and obligations. The constitutional provision suggests that any property without any rightful ownership of a property will vest in the government of the province where it is located as well as the federal government.

The federal government’s interest in exploration and production through OGDCL was created much earlier to the 18th Amendment and it is protected under the existing commitments and obligations as provided in Article 172(3) of the Constitution, the appeal explained.

It contended that Article 172 uses the expression “jointly vested” and explained that vesting of natural resources in the respective provinces and the federal government was in fact a public trust. Those resources belong to the people of entire Pakistan.

The KP government’s challenge before the high court, the appeal argued, was totally misconceived and based on an incorrect interpretation of Article 172 of the Constitution, and the high court should not have ventured to enter into this political thicket by passing the stay order.

Know more: Workers threaten to disrupt oil, gas supplies if OGDC privatised

Likewise, the KP government, in its challenge before the high court, levelled false allegations of corruption and malpractices against a large number of institutions, including the federal government, the appeal argued.

Denying vehemently the allegations of corruption levelled by KP government, the appeal pleaded that those allegations were pure questions of fact and could not be decided by the high court in the exercise of its constitutional jurisdiction under Article 199 of the Constitution.

Published in Dawn, October 10th, 2014