Reko Diq: Matters pertaining to investment disputes should be settled outside courts, says SC

Sohail Khan
Thursday, Nov 24, 2022

ISLAMABAD: The Supreme Court on Wednesday observed that matters pertaining to investment disputes should be settled and resolved outside courts instead of bringing it to them.

A five-member larger bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Muneeb Akhtar, Justice Yahya Afridi and Justice Jamal Khan Mandokel, heard the Presidential Reference on the new Reko Diq Project.

Additional Attorney General Aamir Rehman argued on the second question raised in the Presidential Reference on Foreign Investment (Protection and Promotion) Bill 2022, seeking the opinion of the court if enacted for the Reko Diq agreement, would it be valid and constitutional?

The law officer submitted that as per Article 144 of the Constitution, the provinces could make amendments in the law enacted by the federal government adding that the basic purpose of legislation for the Reko Diq, was to attract foreign investors to make huge investment.

“Due to the Reko Diq project, direct foreign investments of billions is coming to the country,” Aamir Rehman submitted adding that through this legislation, all qualified foreign investors are being brought under one-window operation.

He further submitted that national interest and sustained economic growth are the benchmark of the Reko Diq project.

“But why disputes related to investments are being brought to courts,” the Chief Justice asked the Additional Attorney General.

“The investment related issues and disputes should be resolved outside. Don’t bring them to the courts,” the chief justice told the learned Additional Attorney General advising him to evolve a mechanism for resolving such disputes outside the court.

The Chief Justice observed that the biggest and the main issue is the absence of documentation of taxation matters as well as investments.

“We should at least have a mechanism for the documentation and some criteria should be made,” the CJP remarked adding that the Financial Action Task Force (FATF) had also urged Pakistan for transparent investments and transactions.

During the course of hearing, Justice Muneeb Akhtar made an observation on the scope of Article 144 of the Constitution. He succinctly summarised his judgment when he was in the Sindh High Court. The Additional Attorney General then read out some portions of the judgment.

The court observed that without a threshold for the foreign investment, the Supreme Court cannot say yes to this legislation because it seems to seek approval for an unbridled abuse of executive power.

Justice Ijazul Ahsen asked the Additional Attorney General as to why the government was reluctant to provide a threshold for the investment. “At least, you should have a general threshold,” the judged observed.

Additional Attorney General Aamir Rehman submitted that there may be projects which may not require big investment but may be essential in the national interest. In this respect, he gave the examples of medical supplies like surgical masks required in an emergency during Covid-19.

Justice Yahya Afridi asked the law officer as to why the governments wanted the validation of the court on the impugned legislation.

Aamir Rehman replied it was the court to hold whether the parliament is empowered to legislate for the protection of foreign investment.

Earlier, Makhdom Ali Khan, counsel for Reko Diq, while concluding his arguments, submitted that the project company will, at its expense, build the road from the project to Non Kundi adding that the government parties will maintain the existing road and complete and maintain roads being built.

Replying to a question of Justice Jamal Khan Mandokhel, the counsel submitted that the security for the property of personnel at the project will be at the expense of the project company. He, however, submitted that the government will be responsible and pay for the security of the district, the province and the country.

Makhdom Ali Khan submitted that all land acquired will be paid for by the project company but the government will facilitate the process. He informed the court that a slurry pipeline 680-kilometer-long to transport the material will be built at the expense of the project company.

He submitted that it was a fair arm’s length transaction beneficial both to the government parties and the Government of Pakistan.

The learned counsel for Barrick Gold further submitted that the authority of the Balochistan cabinet to enter into negotiated agreements regarding mineral titles was constrained in several express ways. Thus, any such negotiated agreement must pertain to an international obligation; must be in the public interest; and must be justified on the basis of written reasons.

He further submitted that the court has already been informed by Salahuddin Ahmed, counsel for the Government of Balochistan, that a summary under Section 7 of the Amendment Act stating reasons has been moved for the approval of Balochistan cabinet.

Makhdom Ali Khan submitted that Barrick Gold has always been clear and has insisted that these negotiations be conducted at an arm’s length and the reasons for the decision be independently and impartially made to avoid a recurrence of any of the issues which arose last time.

“Barrick Gold has, therefore, insisted that the reasons for the decision of the Government of Balochistan be publicly made available and be placed on the record of the court,” Makhdom Ali Khan submitted adding that it has already been stated by the Government of Balochistan that this will be done.

Meanwhile, the court adjourned the hearing for today (Thursday). Chief Justice Umer Ata Bandial observed that they may also hear the matter on Friday subject to the availability of members of the bench.

Last month, the federal cabinet chaired by Prime Minister Mian Shehbaz Sharif had approved the filing of Presidential Reference in the apex court for seeking its opinion on questions of law and public importance.

The questions as to whether the earlier judgment of Supreme Court reported as Maulvi Abdul Haq Baloch versus Federation of Pakistan PLD 2013 SC 641, the Constitution, laws or public policy prevent the Government of Pakistan and the Government of Balochistan from entering into the Reko Diq Agreement or affect their validity. And if enacted, would the proposed Foreign Investment (Protection and Promotion) Bill, 2022 be valid and constitutional?