Expert opinion on SC judgment on Presidential reference- Reko Diq matter



Hafiz Ahsaan Ahmad Khokhar advocate Supreme Court, a renowned constitutional expert while commenting on the Supreme Court judgment stated that the subject Presidential Reference was filed after the approval of federal Cabinet before the Supreme Court under Article 186 of the Constitution for seeking Supreme Court determination under their advisory jurisdiction on two important questions whether the Judgment reported as Maulvi Abdul Haque Baloch v.

Federation of Pakistan, PLD 2013 SC 641 etc can prevent the Government of Pakistan and Government of Balochistan Pakistan from entering into new proposed implementation agreement Barrick Gold Corporation, and what would be the Constitutionality of the proposed Foreign Investment (Protection and Promotion) Bill, 2022.

According to legal expert that a five-judge larger bench of Supreme Court led by Chief Justice of Pakistan on November 29 reserved their opinion on the Presidential reference has confirmed under the advisory jurisdiction today that the proposed agreements do not, prima facie, violate any of the findings recorded in the Abdul Haque Baloch case (PLD 2013 SC 641).

According to legal expert, the Supreme Court has also held and the Constitution does not forbid disposal of public assets other than through a competitive process so long as such disposal has the support of the law and is justified on rational grounds as is the case here would also avoid a $10 billion penalty in return for a settlement deal before a deadline of 15th December with Antofagasta and the Barrick Gold in Reko Diq mining case imposed by the International Centre for Settlement of Investment Disputes (ICSID) for alleged violations by Pakistan of Australia-Pakistan Bilateral Investment Treaty , 1997.

Hafiz Ahsaan Ahmad Khokhar said that earlier on July 12, 2019; the ICSID tribunal after concluding the proceedings had given an award of $5.894 billion, plus interest of $700,000 per day in damages against Pakistan to the TCC. At the same time, the London Court of Arbitration also imposed another $4 billion fine on Pakistan. Shortly thereafter, the TCC initiated proceedings for the enforcement of the award in several jurisdictions, including, Australia, the US, and the UK.

According to Constitutional expert that according to the proposed settlement, 50% of the new project’s shares would be owned by Barrick Gold, while the remaining shares would be owned by Pakistan, divided equally between the Centre and the Balochistan government, and the federal government’s share of 25% will be divided equally among three state-owned entities — the Oil and Gas Development Corporation Limited (OGDCL), Pakistan Petroleum Limited (PPL), and Government Holdings Pakistan Limited (GHPL).

According to Hafiz Ahsaan Ahmad Khokhar, the Supreme Court has further held that Article 144 of the Constitution allows Provincial Assemblies to empower Parliament to pass a law dealing with issues within the legislative competence of the Provinces. Similarly, Article 147 of the Constitution allows the Provinces to entrust, either conditionally or unconditionally, to the Federal Government or to its officers, functions in relation to any matter to which the executive authority of the Province extends, and that the FI Bill 2022 is not limited exclusively to the Reko Diq project but would provide a framework for grant of investment incentives which will, subject to the provisions of the Bill, be available to all investments of US$ 500 million or more, and thus the Reko Diq project is the first to be identified as a “Qualified Investment” under the FI Bill 2022 does not render the statute as “person-specific.

According to Hafiz Ahsaan Ahmad Khokhar the present judgment of Supreme Court will not only pave the way for implementation of the Reko Diq project in its present form but will also facilitate and encourage direct foreign investment in similar mining projects and other high capital intensive industries in which direct foreign investment is required to be encouraged through guarantees assured by laws and regulatory measures and would also increase the confidence of overseas investors over our judicial system which is important for foreign direct investment and its allied matters in Pakistan in future.

The Constitutional expert, Hafiz Ahsaan Ahmad Khokhar said that it is now a high time as well that our legislatures and policy makers should revisit all existing commercial laws and simultaneously to introduce such new laws without any further delay especially relating to foreign direct investment and commercial dispute matters by adopting such best international practices and with simultaneously introduction of robust alternate dispute resolution with time bounded adjudicating and court process with the objective to make Pakistan an attractive place of foreign investment and in future Pakistan would avoid such heavy contracts default and penalties before international forums.