ISLAMABAD: Justice Jamal Mandokhail, a member of Supreme Court of Pakistan bench, which heard the presidential reference on Reko Diq deal, declared on Wednesday that the agreements do not violate any of the findings in the matter.
In his 11-page note, Justice Mandokhail said that “unlike CHEJVA, the decision to enter into the agreements is backed by law and has been taken on the basis of careful negotiations during which authorized representatives of GoP (Government of Pakistan) and GoB (government of Balochistan) were duly assisted by independent international consultants”.
He continued that the obligation to act in accordance with “applicable law” contained in the agreements, as well as, the obligations of the licensee to apply for consents in accordance with law and satisfy all conditions prescribed by the applicable law means that the statutory discretion of public functionaries is not being fettered by the agreements.
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He said that the agreements are in line with relevant provisions of law and rules, adding the ICSID Award and the expected ICC Award, if enforced, could have had a serious financial implication on the country as a whole and on Balochistan in particular.
“Fortunately, such a huge liability of the country was averted as a result of the settlement. The reconstitution of the Reko Diq project will enable the RDMC to restart work at Reko Diq, which will be beneficial for all the stakeholders. It will also facilitate and attract local and foreign investment, create employment opportunities, and uplift the backward area of Balochistan,” he added.
About the President’s second question with regard to the constitutionality and validity of the proposed Foreign Investment (Protection and Promotion) Bill, 2022 (“FI Bill, 2022”), he said: “We have already answered it in the affirmative, for the reasons mentioned in paragraph 10 of our short order reproduced above.
Furthermore, the said Bill was subsequently passed as the Foreign Investment (Protection and Promotion) Act, 2022 (Act No. XXXV of 2022) (“FI Act, 2022”). The purpose of the FI Act, 2022 has been enshrined in its preamble. Sub-section (2) of section 1 of the FI Act, 2022 was made applicable to the whole of Pakistan; however, through a subsequent amendment, for the purpose of Balochistan, it was restricted only to the extent of qualified investment of the Reko Diq project, hence, the FI Act, 2022 will not be applicable to projects in Balochistan other than Reko Diq“.
He said that Article 144 of the constitution empowers the provincial assemblies to amend or repeal the FI Act, 2022to their extent at any time, if they deem it necessary.
Copyright Business Recorder, 2023
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