ISLAMABAD:
Justice Yahya Afridi of the Supreme Court has cautioned against forgetting the lesson learned in the Reko Diq case judgment – when the country managed to avoid a penalty of $11 billion after reaching an out-of-court settlement on the project in the Chagai district of Balochistan during the PTI government.
“The lesson learnt from this case must not be forgotten and such kind of judicial adventure of riding on the ‘unruly horse’ of ‘public policy’ must not be repeated by this Court,” Justice Afridi said in his detailed opinion on the presidential reference regarding the out-of-court settlement in the Reko Diq case.
Justice Afridi noted that the judiciary has been conspicuously restrained from interfering with matters relating to policy, as it cannot encroach upon the domain of the executive, which is overseen by the legislature, in deciding whether a policy is in or against public interest.
“However, since the ultimate responsibility to uphold the supremacy of the Constitution and the rule of law in the country lies with the Judiciary, the courts could interfere in policy decisions of the executive, but only if the same are found to be violative of any provision of the Constitution or a law, or suffering from the vice of mala fides.”
Justice Afridi endorsed the cautious approach of courts in dealing with policy matters, as these involve the intricate interplay of technical and economic elements requiring the balancing of competing interestsa forte of the functionaries of the executive or the elected members of the legislature, and not the unelected justices of the superior courts.
He observed that when the legal validity of the implementation agreement and the definitive agreements on the touchstone of public policy is tested, what emerges is not simply a ‘question of law’, but a web of complex commercial mining transactions, transcending international borders, thus giving rise to ‘polycentric issues’.
“In my view, such complex transactions do not cross the threshold of being justiciable as ‘questions of law’ under the advisory jurisdiction of this court.”
He further elaborated that this guarded treading by the courts in matters relating to ‘public policy’ is magnified ten-fold when a court, such as the SC, and that too in its advisory jurisdiction under Article 186 of the Constitution, is to render its opinion – an opinion that is not only legally binding but also final as declared by a nine-member bench of the SC in the Hisba Bill Reference.
Justice Afridi stated that the judicial intrusion of the apex court in the Maulvi Abdul Haq Baloch case , “with all the humility at my command and with utmost respect to my learned brothers, when viewed in retrospect, appears to be a rushed decision where there was no ‘live issue’ left for determination”.
“The very issuance of a mining license, which was the subject matter of the petition before the Court, had already been cancelled by the appropriate licensing authority. In fact, time has proved that the financial exposure for such judicial intrusion far exceeded the benefits it aimed to achieve, and the financial losses it purportedly claimed to save.”
Background
On July 29, 1993, BHP Minerals (BHP) and the Balochistan Development Authority (BDA) signed the Chagai Hills Exploration Joint Venture Agreement (CHEJVA). Subsequently, on November 23, 2006, the TCC acquired BHP’s interests in CHEJVA for $240 million, becoming a party to the CHEJVA through a novation agreement with BHP and the Balochistan government.
On August 26, 2011, the TCC submitted its feasibility report and an application for a mining lease, which was rejected by the licensing authority on November 15, 2011.
On November 6, 2011, a petition was filed before the SC requesting an order for the Balochistan government to refrain from issuing a mining license arbitrarily and unlawfully.
On January 6, 2013, the SC declared CHEJVA void ab initio. On December 12, 2011, the TCC initiated proceedings before the International Centre for Settlement of Investment Disputes (ICSID) for alleged violations by Pakistan of the Australia-Pakistan BIT, 1997, and before the International Chamber of Commerce (ICC) for an alleged breach by the Balochistan government of contractual obligations under CHEJVA.
The ICC tribunal stayed its proceedings in deference to the ICSID proceedings. On February 12, 2016, the tribunal issued a draft decision on jurisdiction and liability, holding that (i) it had jurisdiction over TCC’s claims; (ii) TCC had made an investment in Pakistan; and (iii) Pakistan had expropriated TCC’s investment in Pakistan and breached its BIT obligations.
On July 12, 2019, the ICSID tribunal awarded $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 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 (British Virgin Islands).
In December 2022, the Supreme Court declared that the settlement agreement between the Pakistani government and two international companies, Antofagasta and Barrick Gold Corporation, for the revival of the Reko Diq mining project was legal.
Ex-CJP Umar Ata Bandial announced the 13-page short order after a five-judge larger bench of the apex court reserved its decision on November 29 in the presidential reference on the matter.
The settlement agreement was signed in March, and the presidential reference sought the SC’s opinion on whether its 2013 verdict prevented the Centre and provincial governments from entering into the implementation pact again.
The SC observed in its order that the settlement deal did not violate the apex court’s 2013 judgment, which had declared the first agreement void.
