Reko Diq reference: Proposed foreign investment bill aimed at ensuring economic growth, SC told

ISLAMABAD: The additional attorney general (AAG) informed the Supreme Court that the underlining objective of the proposed “Foreign Investment (Protection and Promotion) Bill” is to attract large-scale foreign investment and ensure overall economic activity and growth.

Chief Justice Umar Ata Bandial, while hearing the presidential reference on the Reko Diq case, said, “I read Business Recorder.” The chief justice, heading a five-member bench, comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, and Justice Jamal Khan Mandokhail, on Wednesday, said this, while making observations on taxation and economic development.

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

The chief justice said in taxation there is a reporting requirement, and noted that the Reko Diq project does not even allow documentation. This is a unique project. He said so far, the federal government has failed to comply with the requisite requirements. You (the government) have to improve the system. Let the legislature direct action that improves taxation. He said the FATF regime stresses transparency, which requires documentation. “If you improve the transparency then it will improve the opportunities for foreign investments.”

Justice Bandial said the investment issues/ disputes must be resolved outside the Courts, instead of bringing to the courts, as when they are brought to the courts then resolutions of the matters prolong. He asked the AAG that the government has to develop a system to resolve investment disputes.

AAG Amir Rehman, after the arguments of Barrick Gold’s counsel, made the submission on the second question of the Presidential Reference. He cited various judgments of the Supreme Court to establish that the federal legislature can pass laws for the province. Justice Ijaz questioned when the Parliament legislates law for a province then whether it is implemented as the provincial law?

The AAG said under Article 144 of the Constitution the federal legislature can make law for the provinces and the provincial assembly/ assemblies have the competence/ power to amend or repeal that law. He said the purpose of the proposed bill is for the advancement and development of the provinces’ economy.

Justice Yahya questioned whether the provinces have passed resolutions in this regard, adding when the provinces have not passed resolutions then what the federal government wanted from the court? He asked the AAG to first get the resolution passed by the provincial assemblies.

The AAG said that Balochistan, Sindh, and the Khyber-Pakhtunkhwa will be passing resolutions for the enactment of this law. He contended that the reference has been filed to get the Court’s point of view, and its purpose is to know would the proposed bill stand the validity of the Constitution. He said if there is no validity then what will the resolutions do?

Rehman said the reference is also to find out whether the government can give protection to an investment for a long period? To which institution or project this discretion can be given? Justice Bandial said the government wanted a judicial observation on the project, adding it was making this law on someone else’s [Barrick Gold] desire.

Justice Ijaz remarked that even if the concession is given that can be withdrawn but the government is apprehensive of its consequences. He said the bill is a broad base for any field. The AAG said the government at this stage further wanted to know whether this law (the bill) is not discriminatory or ultra vires to the Constitution. He said that the bill was prepared after holding consultation with all the stakeholders, i.e., the FBR, the State Bank of Pakistan, the SECP and the Balochistan government.

The chief justice said how the court gives its opinion as they have not heard the contrary arguments; let the amicus curiae point out the loopholes, adding obviously, the Barrick Gold is supporting this law. He said: “Once we give the expressive view then it will become the view of the Supreme Court and challenge to it will be avoided.” Justice Ijaz said the apprehension is not on the part of the government but somewhere else.

Earlier, Makhdoom Ali Khan, representing Barrick Gold, said his client has tried to be as transparent as possible. Any concession must have statutory backing and should have no restriction on the sovereign power of the Parliament and the government. If the government decides to withdraw any exemption and concession then it must be done publicly and openly.

The chief justice asked the counsel that you wanted that the assurance given to Barrick Gold must have a legal backing. If the concession is withdrawn it should be with the permission of Barrick Gold. Your client reserves the right to approach international arbitrations if the concession is withdrawn.

Makhdoom said that the Supreme Court in a number of judgments declared that past and closed transactions cannot be reopened.

The chief justice said; “Our legal jurisdiction is different from the international one; therefore, the government of Pakistan should retain the good legal advice of those who perform responsibilities before the international legal forums.” The government needs expertise in English law. He said the proceedings before international forums are expensive; therefore, there is a need to strengthen our system so that foreigners trust our system. He asked the AAG to improve the legal system. I hope the qualitative improvement aimed at will succeed. He further said that in view of the economic meltdown, Sri Lanka employed lawyers from Canada and London.

Justice Muneeb noted that the effect on the company will also affect Pakistan which has 50 per cent shares in the project, adding if in future, the Parliament curtails the concession then it will not only affect the Barrick Gold but also Pakistan and the local people in Balochistan.

Makhdoom argued that the Presidential Reference is maintainable. He maintained that Section 7, added in “The Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948”, be treated as a stand-alone law. This is clearly a well-negotiated agreement, adding for 3.6 years, the discussion took place at all levels and the representatives of Balochistan and the federal governments.

The case was adjourned until today (Thursday).

Copyright Business Recorder, 2022