ISLAMABAD: The Supreme Court on Saturday provided detailed reasons explaining why former chief justice Umar Ata Bandial-led larger bench on Dec 9, 2022 cleared the Reko Diq settlement deal between Pakistan and international firms, Antofagasta Plc and Barrick Gold Corporation, for implementation.

The detailed reasons came after a gap of 21 months despite Justice Bandial’s earlier claim that the Dec 9 short order was comprehensive and there was no need to issue separate or additional reasons, especially when the short order had already been implemented by both sides. Justice Yahya Afridi, however, had a word of caution as he had pointed out that the SC must not repeat the judicial adventure of riding on the ‘unruly horse’ of ‘public policy’.

The opinion of the court had come in response to a presidential reference on the Reko Diq reconstitution deal. Former president Dr Arif Alvi through the reference had sought SC’s opinion on whether its 2013 judgement in the Maulana Abdul Haque Baloch prevented the federal and provincial governments from entering into the implementation agreement and whether the proposed Foreign Investment (Protection and Promotion) Bill, 2022 and any amendments to it would violate the Constitution.

“The agreements do not, prima facie, violate any of the findings recorded in the 2013 Abdul Haque Baloch case,” the short order had responded in the 13-page opinion.

Justice Afridi warns against repeating judicial adventure of riding on ‘unruly horse’ of ‘public policy’

On July 12, 2019, the World Bank tribunal had slapped $6.5 billion award against Pakistan in a dispute between the Tethyan Copper Company Private Limited and the government for rejecting the company’s application for the multimillion-dollar mining lease in Balochistan following the 2013 judgement of the Supreme Court of Pakistan.

Justice Afridi, in his reasons, explained that the ‘judicial intrusion’ in the Maulana Abdul Haque Baloch case, when viewed in retrospect, appeared to be a rushed decision where there was no ‘live issue’ for determination. The issuance of the mining licence, which was the subject matter of the petition before the SC had already been cancelled by the appropriate licensing authority, Justice Yahya observed, adding that time has proved that the financial exposure for such a judicial intrusion far exceeded the benefits it aimed to achieve and the financial losses it purportedly claimed to save.

When the legal validity of the implementation agreement and the definitive agreements on the touchstone of public policy was tested, what emerged was not simply a ‘question of law’ but a web of complex commercial mining transactions, transcending international borders thus giving rise to ‘polycentric issues’, Justice Afridi explained. Such complex transactions do not cross the threshold of being justiciable as ‘questions of law’ under the advisory jurisdiction of the Supreme Court, he observed.

This guarded treading by courts in matters relating to the public policy was magnified ten-fold when the SC, that too in its advisory jurisdiction under Article 186, renders its opinion that was not only legally binding but also final as declared by a nine-member SC bench in the Hisba Bill reference, Justice Afridi warned.

In his opinion, Justice Jamal Khan Mandokhail suggested that the federal and provincial governments, being the trustees on behalf of their people, must not ignore the rights of future generations.

He observed that the mining must be performed in a sustainable manner and the proceeds arising out of their respective stares may be allocated, utilised and invested in a way to ensure that future generations receive the benefit or the governments should adopt an investment strategy like establishment of a ‘sovereign wealth fund’.

They may park and invest a fixed portion of revenue arising from the proceeds of mining project in this fund, Justice Mandokhail opined, adding that it would be appropriate for the federal and provincial governments to take initiatives and adopt measures by allocating a fixed portion of the proceeds of their shares and royalty for the benefit of future generations.

According to him, preference should be given to health services and formal technical education as the agreements contained strict adherence of corporate social responsibility.

However, considering the small population of Reko Diq, Justice Mandokhail said CSR initiatives may be extended for the socio-economic uplift of the Rakhshan division in particular and the entire Balochistan in general.

Published in Dawn, September 8th, 2024