ISLAMABAD: The Supreme Court on Tuesday sought from the federal government a list of senior counsel to be appointed as amici curiae for assisting it on the maintainability of presidential reference seeking validation for the new Reko Diq project in Balochistan.
A five-member larger bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Muneeb Akhtar, Justice Yahya Afridi and Justice Jamal Khan Mandokhel, heard the preliminary hearing in the presidential reference on the new Reko Diq project.
President Dr Arif Alvi, on the advice of prime minister, had filed a reference in the apex court under Article 186 of the Constitution. Last month, the federal cabinet chaired by Prime Minister Mian Shehbaz Sharif had approved filing of the presidential reference in the apex court for seeking its opinion on questions of law and public importance.
The questions as to whether the earlier judgment of Supreme Court reported as Maulvi Abdul Haq Baloch versus Federation of Pakistan PLD 2013 SC641, the Constitution, laws or public policy prevent the Government of Pakistan and Government of Balochistan from entering into the Reko Diq agreement or affect their validity. And if enacted, would the proposed Foreign Investment (Protection and Promotion) Bill, 2022 be valid and constitutional?
On Tuesday, the court in its order held that the controversy before it, on account of its unusual nature, necessitates that it should be assisted by competent advisers and views of all stakeholders on questions raised in the presidential reference besides assisting it on the legal side as well as security of the contract proposed.
Therefore, the court issued notices to Barrick Gold Corporation as well as other federal and Balochistan government authorities, Pakistan Bar Council, Oil and Gas Development Corporation Limited (OGDCL), Pakistan Petroleum Limited (PPL) and Government Holdings Pakistan Limited (GHPL).
The court also asked Additional Attorney General Aamir Rehman to provide it a list of senior counsels who could be appointed as amicus curies (Friends of Court) for assistance as to whether the instant reference is maintainable or not.
During the course of hearing, Additional Attorney General Aamir Rehman informed the court about the background of disputes between the Government of Pakistan, Government of Balochistan with the foreign investors in Chaghai Hills Exploration Joint Venture for exploration and mining of gold and copper reserves in Reko Diq in Balochistan. He submitted that in 1993, the Government of Balochistan made an agreement with the foreign investors in Chaghai Hills Exploration Joint Venture for exploration and mining of gold and copper reserves in Reko Diq while the Tehtyan Copper Company made an investment of 240 million dollars.
However, the agreement was challenged in the Balochistan High Court in 2006 which was dismissed. In 2013, the Supreme Court declared the agreement as void. He further submitted that after the apex court judgment, the Tethyan Copper Company approached the international arbitration tribunal of the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), which issued an award of 9 billion dollars in damages to Tethyan Copper Company (TCC) in relation to the arbitration claims filed against the Government of Pakistan for denial of mining lease for the Reko Diq project. Aamir Rehman submitted that the new Reko Diq project will be owned 50 percent by Barrick Gold and 25 percent by the federal government.
Justice Jamla Khan Mandokhel asked the AGP as to how much share will be of Balochistan government and why the Bariick Gold was getting 50 percent share. Who is the real owner of the Reko Diq, the judge further asked.
Aamir Rehman submitted that the province of Balochistan will have share of 25 percent adding that the federal government’s share of 25 percent will be divided equally among three state-owned entities — the Oil and Gas Development Corporation Limited (OGDCL), Pakistan Petroleum Limited (PPL) and Government Holdings Pakistan Limited (GHPL). The Additional Attorney General submitted that the project will generate a revenue of 104 billion dollars adding the province will get 62 percent profit from the project but the international investors seek solid assurances from the government for such a huge investment. “If the court will not allow it, then Pakistan will have to pay the outstanding amount of 9 billion dollars owed to it.” At this, Justice Ijazul Ahsen asked the AAG that the government was sovereign and it could negotiate and sign the treaty. “Where does the court come?” Justice Ahsen asked the AAG.
Chief Justice Umer Ata Bandial also asked the AAG that the government has legal advisers and it could take advice and consult as to whether the judgment of the apex court will be violated if the treaty was made.
“Laws pertaining to international arbitrations are in the field, so the government could determine as to how the foreign investors could be protected,” the Chief Justice further told the Additional Attorney General.
“When a judgment comes, we have no jurisdiction to re-open it,” the CJP added. “You have a whole team of legal experts, consult it and they can go through the available legislations and laws and can better guide you as well,” Justice Ijazul Ahsen told the AAG adding that the government has adopted an anticipatory approach by taking opinion of the court before making legislation.
“Whether the reference is now going to be another remedy for reviewing or re-visiting our judgment,” the Chief Justice asked the AAG. Justice Muneeb Akhtar, another member of the bench, asked that instead of Balochistan government, why the federal government will share 25 percent in the project. Justice Jamal Khan Mandokhel observed that the whole of Pakistan will be facilitated and benefited if all the minerals of the province were utilized in an effective manner. “The old treaty of Reko Diq was made in irresponsible manner but the new one is being made by the government in a responsible manner as well,” Justice Mandokhel added.
But Justice Ijazul Ahsen observed that the hands of Pakistan have been stripped in the treaty with sword of outstanding nine billion dollars hanging. Meanwhile, the Chief Justice observed that the court is not expert on financial matters, hence asked the Additional Attorney General to clear the long questions asked in the reference.
Justice Yahya Afridi also asked the AAG to explain as to whether the court or Attorney General could change the questions asked in the reference or not. Later, the court adjourned the hearing until next Tuesday.
