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July 18, 2019

Swati, others sought annulment of Reko Diq mining lease in SC

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July 18, 2019

ISLAMABAD: Senator Azam Swati, Minister for Parliamentary Affairs, figured among nearly three dozens of petitioners who had challenged in the Supreme Court of Pakistan the award of Reko Diq mining contract to Tethyan Copper Company Limited (TCC).

Reacting to the $5.9 billion penalty slapped on Islamabad for the termination of the Reko Diq contract, Prime Minister Imran Khan has ordered formation of a commission to investigate as to how Pakistan ended up in this predicament. It is understood that the persons who petitioned against lease to Tethyan will also be quizzed. A tribunal of the International Centre for Settlement of Investment Disputes (ICSID), seized with a dispute between Pakistan and the TCC, has slapped the whopping $5.97bn award against Pakistan that includes $4.08bn penalty and $1.87bn in interest.

At the time, Swati was a Jamiate Ulemae Islam-Fazl (JUI-F) senator. Ten days after quitting this party, he had joined the Pakistan Tehreek-e-Insaf (PTI) on December 17, 2011. At the time, he had stated that the foreign consortium namely TCC has failed to prepare complete feasibility in the stipulated time as well as its activity remained confined to mere 5-6km while the deposits were available in around 8,000km area. He added that Pakistan can use services of the same scientists and manpower who gave Pakistan the nuclear technology.

According to a report of January 24, 2011, a total of twenty-six senators including Swati, Maulana Abdul Ghafoor Hyderi, Dr Ismail Buladi, Maulana Gul Naseeb Khan, Abdul Ghafoor Qureshi, Eng. Malik Rashid Ahmed Khan, Mohammad Ghufran Khan and others announced to become party in the Reko Diq proceedings in the Supreme Court by filing a petition under Article 184(3) of the Constitution.

“Swati etc.” had filed constitutional petition number 4 of 2011 and civil miscellaneous application (CMA) number 295 of 2011 in the apex court, according to the judgment delivered by a three-member headed by the then Chief Justice, Iftikhar Muhammad Chaudhry, and comprising Justice Gulzar Ahmed and Justice Sheikh Azam Saeed on January 7, 2013 during the Pakistan People’s Party (PPP) government.

Apart from the senators, other petitioners included the then member of the Punjab Assembly of Jamaat-e-Islami Ehsanullah Waqas, Tariq Asad, advocate, Watan Party and another, and Qazi Sirajuddin Sanjrani and another. Khawaja Ahmed Tariq Rahim, advocate, had filed a human right application. An appeal against the judgment of the Balochistan High Court (BHC), which had dismissed a similar plea, had been bunched with these petitions invoking Article 184(3).

The Supreme Court had held that the civil petition for leave to appeal against the BHC verdict was converted into appeal, and the appeal as well as the constitutional petitions under Article 184(3) were allowed. In consequence, the Chagai Hills Exploration Joint Venture Agreement dated July 23, 1993 was held to have been executed contrary to the provisions of the Mineral Development Act, 1948, the Mining Concession Rules, 1970 framed thereunder, the Contract Act, 1872, the Transfer of Property Act, 1882, etc., which was even otherwise not valid, therefore, the same was declared to be illegal, void and non est.

The judgment said that in pursuance of this declaration, Addendum No 1 dated March 4, 2000, Option Agreement dated April 28, 2000, Alliance Agreement dated April 3, 2002 and Novation Agreement dated April 1, 2006, which were based upon, and emanated from, CHEJVA (Chagai Hills Exploration Joint Venture Agreement) were also held to be illegal and void. It was further held that all those instruments did not confer any right on BHP, MINCOR, TCC, TCCP, Antofagasta or Barrick Gold in respect of the matters covered therein.

In 2006, Maulana Abdul Haq and others had filed a constitutional petition in the BHC, challenging the legality of CHEJVA, validity of the act of relaxation of BMCR (boiler maximum continuous rating) 1970 by the Balochistan government and the failure of BHP to complete the exploration at a reasonable pace.

They had prayed that the BHC may declare that all transactions, starting from and based upon the CHEJVA of 1992-93, including each grant of a licence or other concession to any of the respondents and every transfer of interest in Reko Diq leading up to the latest acquisition (whether contemplated or completed) are illegal, ultra vines, unconstitutional and mala fide and liable to be set aside.

The BHC had on June 26, 2007 dismissed this petition. These petitioners had sought the Supreme Court’s leave to appeal against this decision. After that others had filed the petitions directly before the apex court under Article 184(3), questioning the validity of the grant of licence on the ground of absence of fairness, non-transparency, violation of laws/rules, and also alleged possible risks to the vital interests of Balochistan and Pakistan in the grant of mining lease.

The commission being formed by the prime minister will investigate which elements are responsible for making Pakistan suffer such a loss and what lessons are learnt so that mistakes made are not repeated in the future. It is not yet known who will head the forum.

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