ISLAMABAD: The counsel for Balochistan informed the Supreme Court on Tuesday that in an earlier Reko Diq litigation, the court was requested to stay out of the matter and wait for the outcome of an international arbitration that commenced soon after cancellation in 2011 of a mining lease awarded to Tethyan Copper Company Pakistan (TCCP).

But Additional Attorney General Chaudhry Aamir Rehman explained that the Supreme Court headed by then chief justice Iftikhar Muhammad Chaudhry had decided to go ahead with the hearing of a petition filed by Maulana Abdul Haque. Eventually, the hearing culminated in declaring illegal and null and void the Chaghai hills exploration joint venture agreement for exploring gold and copper in Balochistan’s Reko Diq area.

Consequently, on July 12, 2019, World Bank’s tribunal called ICSID slapped a huge $6.4 billion award against Pakistan on a dispute between the government and TCCP for rejecting the latter’s application by the mining authority of Balochistan for the multimillion-dollar mining lease in 2011.

A five-judge SC bench, headed by Chief Justice Umar Ata Bandial, had taken up a presidential reference on reconstitution of the deal for exploration of copper and gold in Reko Diq.

When Justice Yayha Afridi asked about the cause that prompted the investor to opt for the international arbitration, Salahuddin Ahmed, the counsel for Balochistan, said the cancellation of mining lease in 2011 by the Balochistan government was the reason behind the arbitration.

The counsel argued that any decision in the present reference should not be like giving a carte blanche to every other investor by exempting the Baluchistan Mineral Rules 2002 in their favour. He said the present reference is of sufficient public importance and that was the reason President Arif Alvi had invoked the advisory jurisdiction of the SC under Article 186 pre-emptively.

Nonetheless, he said, it is in the interest of Pakistan to go ahead with the agreement with Barrick Gold Company for exploration of copper and gold in the Reko Diq area. Referring to an earlier suggestion by CJP Bandial of a clear policy on the Reko Diq investment, the counsel argued that it might not be in the best interest of the province, especially when the present agreement had been reached after three years of hectic negotiations.

The counsel recalled how senior lawyer Khalid Anwar, while representing TCCP in the Maulana Abdul Haque case, had requested the apex court to wait for the outcome of the international arbitration being carried out under the relevant laws of Pakistan under which international treaties and agreements were binding on the country. Mr Anwar had said the government should stand by its commitments under the bilateral treaty, read with ICSID clause, which the state had accepted voluntarily and freely.

Published in Dawn, November 16th, 2022

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