Tuesday November 28, 2023

Reko Diq project: SC judge hopes ‘judicial adventure’ won’t be repeated

In December, SC declared legal new agreement of massive investment between Pakistan and Canadian Barrick Gold

September 14, 2023
A view of the Supreme Court building in Islamabad. — AFP/File
A view of the Supreme Court building in Islamabad. — AFP/File

ISLAMABAD: Justice Jamal Khan Mandokhel of the Supreme Court said on Wednesday that the reconstitution of the Reko Diq project will enable the Reko Diq Mining Company (RDMC) to restart work on the project, which will be beneficial for all the stakeholders. In his note on the same matter, Justice Yahya Afridi said that the judicial adventure of riding on the “unruly horse” of public policy must not be repeated by this court.

In his 11-page note in the case, Justice Mandokhel said that it would also facilitate and attract local and foreign investment, create employment opportunities, and uplift the backward area of the province of Balochistan. The judge added that “Since the detailed judgment has not been rendered till date, therefore, I deem it appropriate to deliver my reasons through this note”.

Last year in December, the Supreme Court had declared legal the new agreement of massive investment between the Government of Pakistan and Canadian mining Company Barrick Gold for the exploration of mines at Reko Diq in Balochistan. A five-member bench of the apex court headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi and Justice Jamal Khan Mandokhel had announced its opinion on the presidential reference regarding the new Reko Diq project under Article 186 of the constitution seeking the opinion of the apex court on two questions.

In his note, Justice Mandokhel said that Balochistan has been blessed with a wide range of natural resources, and it is therefore a constitutional obligation of the Balochistan government to protect and preserve the natural resources of its people and to explore, deal, and manage the same for their benefit. The judge recalled that in Abdul Haque’s case, the court had highlighted a number of illegalities, jurisdictional defects, maladministration, corruption, lack of expertise and experience, and a colourful exercise by the authorities concerned with regard to the previous Reko Diq deal, on the basis whereof, the CHEJVA (Chaghi Hills Exploration Joint Venture Agreement) was declared null and void.

Justice Mandokhel expected that the authorities concerned with the government of Balochistan would have gained significant experience from the past, and should keep in mind the defects, flaws, and irregularities pointed out and the guidelines laid down in the Abdul Haque case to avoid any such ordeal in the future. He maintained that: “Hence, any future decision in respect of the properties of the province must be taken in a manner beneficial for the province and its peoples”.

Similarly, Justice Yahya Afridi in his note said that when we test the legal validity of the Implementation Agreement and Definitive Agreements on the touchstone of Public Policy, what emerges is not simply a ‘question of law’, but a web of complex commercial mining transactions, transcending international borders, is giving rise to polycentric issues.

“In my view, such complex transactions do not cross the threshold of being justiciable as questions of law under the Advisory Jurisdiction of this Court”, Justice Afridi noted. The judge further said that this guarded reading by the courts in matters relating to Public Policy is magnified ten-fold when a court, such as the Supreme Court, and that too in its advisory jurisdiction under Article 186 of the constitution, is to render its opinion that is not legally binding but also final as declared by a nine-member bench of this court in the Hasba Bill reference.