Court’s judgement for MT Cherish
AT last, the Civil Court Hub has decided the fate of MT Cherish through a successful and meaningful hearing on priority basis that ended on Friday 12 November 2021 and its outcome announced on Saturday 13 November 2021 with a detailed judgement of 11 pages.
The Court has accepted the application of the plaintiff ie M/s Dewan Ship Recycling under order 39 rule 1, 2 CPC and rejected the application of defendant No 1 ie Ministry of Maritime Affairs (MoMA) through Director General Ports and Shipping under order 7 rule 11 CPC.
Originally, CEO of M/s Dewan Ship Recycling Dewan Rizwan Farooqi filed the case in the Court against the halt of MT Cherish’s dismantling operations by the federal and provincial governmental departments.
Final Court Judgement is very strong and balanced, as it has covered all aspects from Court’s jurisdiction to international obligations in a comprehensive way – big applaud for the honourable Judge and the lawyers of the plaintiff for such a brilliant output.
There is no doubt that the Court maintained its overall proceedings at par with international norms and practices.
The Court’s judgement has all the ingredients to become a meritorious reference case in future indeed.
It has interpreted the law of the land in an articulate manner and clearly defined the boundaries of different government departments that were found indulged into the affairs of MT Cherish.
A highly valuable and significant thing is that it has removed ambiguity about the essence, extent and application of different Multi-lateral Environmental Agreements (MEAs), particularly the Basel Convention for Tran-boundary Movement of Hazardous Waste and the Hong Kong International Convention for the safe and environmentally sound recycling of ships (HKC) vis-à-vis national/provincial legislation and Gadani Ship Recycling Yard.
The contents of the Judgement would not only increase the trust of private sector on judicial system but are also more likely to attract other stakeholders.
The most important thing is that it has provided a lifeline to business community with cheerful moments by confirming the earlier order of the Court dated 8 October 2021 and suspending the irrelevant letters of different Government departments due to which operations of MT Cherish were halted.
To end injustice and justice to prevail, it has directed the Balochistan EPA to proceed and decide the matter of MT Cherish in accordance with law for dismantling the ship and disposal of hazardous material.
It is pertinent to highlight that the salient contents of the Judgement have authenticated my impartial analysis, findings and opinion regarding technical and legal aspects of MT Cherish Issue, published in Pakistan Observer through a series of articles on 22nd and 23 September 2021 and 12 October 2021.
The honourable Court has drawn clear lines for closing the matter in accordance with law of the land and the constitutional guarantees to fundamental rights for justice to prevail.
Aggrieved party got justice, as there was no evidence furnished to establish the offence thus Interpol’s source has lost its credibility.
A unique aspect of the judgement is that the owner of MT Cherish has full rights to sue all involved governmental departments/agencies for the claim/compensation of losses.
Interpol can also be sued since the base of the issue was its message whose source was not reliable and stands incredible due to which huge loss has occurred.
However, it is not likely that M/s Dewan Ship Recycling or any other member of PSBA will lock horn with government departments; despite the fact that they have already suffered a lot with a huge loss toll.
As far as the possibility of an appeal by the government departments/agencies is concerned, it has very less likelihood considering the limitations due to lack of substantial evidence to establish the offence.
In the context, the Plaintiff has already paid a court fee against the value of the ship due to which defendants cannot exercise the option of an appeal at the level of Session Court and they need to go to Balochistan High Court Quetta, if still desired due to the inertia in the places of pseudo hegemony.
Considering the strength and no loophole in the Judgement of the Civil Court Hub, there are bright chances that it will remain unchanged in case an appeal is filed in Balochistan High Court thus it would be a futile exercise for the government department(s).
However, it would enhance the effectiveness of the original decision by having another stamp from Balochistan High Court.
The genuine stakeholders who were keen to know the ground reality about the alleged charges on MT Cherish of carrying huge quantity of Mercury contaminated oil sludge have warmly welcomed the Court’s decision.
The Judgement has met their expectation as they were of the view to have safe method for handling and disposal of contaminated sludge but not at the cost of the industry at large which was on stake due to speculation of facts in mass media.
Overall, the Court’s decision has produced a win-win scenario for all actors by having clarity about institutional mandates and roles vis-à-vis existing governance framework in national and provincial context, which would ultimately ensure smooth functioning.
It has set a positive tone and being considered good for the Ship Recycling Industry in the long-run as the whole process has convinced the members of Pakistan Ship Breakers Association (PSBA) to get prepared for the early adoption of Hong Kong Convention and revitalized the need of best practices for clean and safe operations at Gadani Yard.
—The writer is affiliated with National Institute of Maritime Affairs (NIMA), contributes to the national press on a regular basis.
