PESHAWAR: A Peshawar High Court bench has reserved judgment on a petition of the Frontier Mines Owners Association challenging the Khyber Pakhtunkhwa Mineral Sector Governance Act, 2016, and the rules made under it by the government.

Chief Justice Yahya Afridi and Justice Abdul Shakoor earlier heard detailed arguments of petitioner’s lawyer Afnan Kareem Kundi and additional advocate general Waqar Ahmad.

The petitioner has requested the court to declare the law and rules in question unconstitutional insisting the provincial government didn’t fulfil legal requirements before enforcing them.

Mine owners had challenged Act and rules made under it, saying govt didn’t fulfil formalities before enforcing them

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

He said the ordinance was tabled in the KP Assembly, which passed it as a bill on Dec 20, 2016, and the KP governor approved it on Dec 30, 2016.

The lawyer referred to a Supreme Court judgment delivered on Aug 18, 2016, in the case of Mustapha Impex and others and insisted 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.

“The ordinance making power can only be exercised after a prior consideration by the cabinet. An ordinance issued without the prior approval of the cabinet is not valid,” he quoted the judgment as stating.

The lawyer also said the court had ruled that no bill could be moved in parliament on behalf of the federal government without the prior approval of the federal cabinet.

He said in the instant case, the chief minister had given approval to the said ordinance and not by his cabinet.

Mr Kundi argued that through the present Act, the previous Regulation of Mines and Oilfield and Mineral development (Government Control) Act, 1948, was repealed to the extent of mines and mineral development in KP.

He argued that while the government claimed that the new law was aimed at introducing transparency in this sector, in fact some provisions, which were self-contradictory to the law, were inserted in it that were against the concept of transparency.

The lawyer said Section 9A, which was not even available in the Ordinance, was incorporated in the Act.

“The section in question provides that the Mineral Title Committee, with the approval of the mineral investment facilitation authority, in unavoidable circumstances may grant licence and mining lease for any such period, for any area, under any term and conditions, to such public and private organisation or persons as deemed appropriate in public interest,” he said wondering how such sweeping powers could be assigned to the committee.

Mr Kundi contended that even while promulgating the ordinance, the rules of business of the KP government were not followed.

Additional advocate General Waqar Ahmad said when the ordinance was promulgated in July 2016 by that time, the apex court had not delivered the judgment in Mustapha Impex Case. He insisted that the Act in question was not tabled in the form of a bill for which the approval of the cabinet was required.

The AAG said under Article 128 of the Constitution, an ordinance promulgated by the governor had to be laid before the provincial assembly. He added that when the ordinance was laid before the assembly it was passed by the legislature and was converted into an Act of the assembly.

Mr Waqar said under Article 69 of the Constitution, the validity of any proceedings in parliament should not be called in question on the ground of any irregularity of procedure.

When asked by the court, the AAG conceded that the rules formulated by the provincial government under the said Act weren’t approved by the cabinet.

Published in Dawn, July 9th, 2017