ISLAMABAD: The Supreme Court was informed on Monday that Reko Diq settlement negotiations were effectively concluded by the previous government and the commitment to see these through was reinforced by the present coalition government and this was indeed a new start to build a consensus across political divide to advance Pakistan’s economic progress.

Senior counsel Zahid F. Ebrahim, who was appointed as amicus curiae (friend of the court), emphasised before a five-judge SC bench hearing a presidential reference on the mining deal for exploration of gold and copper in Balochistan’s Reko Diq area that the renewed settlement, when finalised, will restore Pakistan’s international credibility, economic credentials and help feature the country as a foreign investment destination on the world’s map.

The bench was headed by Chief Justice of Pakistan Umar Ata Bandial.

“Yes, the foreign mining firms in TCCA (Tethyan Copper Company, Australia) will stand to recover their investments, but Pakistan too stands to gain,” the counsel said.

Amicus curiae says deal will restore Pakistan’s international credibility, economic credentials

The basis of SC’s 2013 decision, Mr Ebrahim argued, was a midstream change in Balochistan government’s stand, which was vigorously defending the Chagai hills exploration joint venture agreement before the Balochistan High Court as legal and transparent.

But its representatives, he said, resiled from the stated position in the apex court and targeted the agreement as illegal and contrary to the interests of the province, stating the business of exploring and mining was a risky one involving huge amounts and modern technology and that the provincial government lacked resources to explore the minerals.

The counsel recalled how the proceedings in the BHC were instituted on the basis of allegations made in a May 26, 2004 newspaper article, which were ironically withdrawn by the same newspaper a week later. But the petition in the Supreme Court took a life of its own during the proceedings, the counsel argued, adding that the reference was 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 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,” the counsel emphasised.

He recalled how on Sept 2, 2015, Pakistan filed an application in the International Centre for Settlement of Investment Disputes (ICSID), saying TCCA’s investment was procured through corruption. After two years, on Nov 10, 2017, the ICSID dismissed these allegations.

Makhdoom Ali Khan, the counsel for Barrick Gold Corporation, argued that the Regulation of Mines and Oilfields and Mineral Development (Government Control) Act 1948 was both federal and provincial statute with the two legislatures exercising legislative authority in their respective spheres.

“Such enactment is one of a species of enactments which cannot be allocated exclusively within either the federal or provincial domain,” he contended. Even if the 1948 Act was regarded as exclusively a federal statute, the amendment to Section 7 of the Act will survive as an independent stand-alone provincial enactment in view of exclusive provincial legislative competence and encroachment by the law.

Mr Khan emphasised that Section 7 allows the provincial government to enter into a negotiated agreement for minerals under its legislative competence. There is no encroachment, incidental or otherwise into the enumerated federal legislative fields of mineral resources necessary for the generation of nuclear energy, mineral oil, and natural gas, he said, adding that Section 7, therefore, could be considered a stand-alone statute and encroachment, if any, by the 1948 Act was incidental.

Salman Akram Raja, another amicus curiae, contended that the 1948 Act with respect to the matters in the provincial legislative domain was not covered by the doctrine of incidental encroachment.

“This doctrine only allows for the validity of laws that have incidentally crossed the boundary between legislative domain prescribed by the Constitution while remaining within their major scope and intent within the legislative domain prescribed for the legislature that has enacted the law under scrutiny,” he argued.

A clear co-mingling or juxtaposition of provisions that relate to both the federal and provincial legislative domains in a single statute is not protected by the doctrine of incidental encroachment, he emphasised.

Published in Dawn, November 22nd, 2022

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