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January 28, 2021

The case of bad cases

Opinion

January 28, 2021

When we look at the cases of different kinds that Pakistan has fought and continues to fight in international courts, the record is embarrassing.

Very rarely have we been able to come out on top or show that the deals we made with companies from other countries or the agreements we reached with individuals from overseas were well-thought-out, well planned or had gone through stringent legal channels. As a result, we have lost huge amounts of money that could quite easily have been used to bolster the national exchequer and fill it with some of the resources it so badly needs to keep the country running and on a steady footing.

Had these deals not been made or been made in a more judicious and sensible manner, perhaps we would not have been so heavily dependent on the IMF loans and perhaps we would have had enough resources to purchase the Covid-19 vaccine, which currently is a major necessity for people across our country.

Pakistan is one of the few poorer countries in the world and amongst the very few countries in the region, where no vaccination campaign has been started and no agreement of a binding nature even reached to acquire the essential vaccine or on how to plan delivery. Yes we are getting closer, but until the first dose enters an arm this will still not be close enough.

We can look back a long way at our record of litigation. In 1993, the Reko Diq affair began with an Australian company about the mining of allegedly huge reserves of gold and copper in Balochistan. This Australian company then handed the matter over to another company from the same country. And it later ended up with Tethyan Limited, a joint Canadian and Chilean venture with considerable experience in mining. However, for reasons that are somewhat unclear, the Balochistan High Court in 2011 put a stop to the deals, with Tethyan not unsurprisingly stating it had already spent millions of dollars in the project and going to the World Bank and other forums for international arbitration in such matters. The matter is in fact continuing even now though it is clear Tethyan has the upper hand.

There are numerous other examples. Amongst the latest is the Broadsheet affair. We should ask why a deal of a nature so frivolous that even a child could see through the flaws was struck with a highly dubious company one of whose main men Kaveh Moussavi had spent time in jail, and the other who is said to be the founder of the concern, Jimmy James committed suicide. To add to this, the deal allowed Broadsheet to take 20 percent of any assets recovered by NAB, even if the company itself had played no role in gaining these assets.

It is difficult to understand why such a huge concession should have been given to a company with very little international reputation and no established track record in recovering assets in the manner that Pakistan sought. We now have a judicial commission looking into the matter. But Pakistan of course, does things its own way. The commission is headed by Justice (r) Azmat Saeed, who had acted as NAB prosecutor at the time the deal was struck. There is then reason to question if he can give a totally unbiased examination to the case and come up with a verdict that carries no prejudice and no unfair look at how matters were run.

In other affairs too, things seem extremely clumsy. It is hard to understand why the Boeing 777 seized in Malaysia was sent overseas in the first place. As jokes in Punjabi on social media point out, ordinary people in the country are afraid of even taking a car without a totally valid licence plate out of the Capital. Yet the national carrier chose to move an entire plane from the country although technically it was under dispute. The giant airplane had been hired originally from an Irish concern and then passed on to Peregrine Limited, a Dubai-based company which has expertise in aviation matters. This is all the more extraordinary given that other planes of the same class were available to PIA to send out to Kuala Lumpur and use for their flight rather than a disputed plane, which is now seized and no longer available to PIA.

In other litigation too, we have not been successful. There is a dispute over whether Pakistan or India won the matter regarding alleged spy Kulbhushan Jadhav, who had been captured by Pakistan in Balochistan after travelling into that area from Iran. The International Court of Justice at The Hague stayed his execution and ordered access to an Indian lawyer to him as well as consular access. No Indian lawyer has come across since India argues he or she cannot contest the case in a Pakistani court.

The other cases are of a slightly different nature. Claims have been made by scientist Dr Samar Mubarak about the Qatar Underground Coal Gasification (UCG) project in Thar. The Supreme Court of Pakistan, in late 2018, deemed that the Thar coal project was not "implementable" and had caused a financial loss of over Rs4 billion to the country. This trend of making elaborate claims on the basis of very little evidence has continued year after year.

Recently after coming to power members of the government claimed huge reserves of oil had been discovered in the sea, off the Pakistan coast. A considerable amount was spent on exploring this finding, as had been the case with the Thar coal on which billions were wasted. No oil was found in the sea. There has been little explanation from the government as to why this faux pax was made. Over the Reko Diq affair we have two PIA hotels of enormous value seized by international courts because of Pakistan's failure to pay charges that were due or to go back on agreements that had been made. These hotels include the Roosevelt in New York, part of a major international chain, and Scribe and Paris, part of another chain.

The losses are enormous and there is a danger that more problems could arise as agreements come forward from the China Pakistan Economic Corridor and potentially force us into further litigation with China over these deals, their validity, their legality, and the question of whether all ends have been fulfilled in going through with them.

The writer is a freelance columnist and former newspaper editor.

Email: [email protected]