ISLAMABAD: The Supreme Court was told that in Maulana Abdul Haque case it did not take into account the international arbitration clause, which it should have respected.
The bench, headed by Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, and Justice Jamal Khan Mandokhail, on Tuesday, heard the presidential reference on the Reko Diq project.
During the proceeding, Justice Yahya Afridi questioned whether there was no application filed before the apex court that the matter regarding the mining lease is also before the ICSID.
Salahuddin Ahmed appearing on behalf of the Balochistan provincial government informed the Court that Khalid Anwar had filed a petition and argued that the court should respect the agreement as it contains the clause related to approaching international arbitration in case of dispute between parties. The court was requested not to give such a finding that the international treaty was binding. He (Khalid) had also argued that this court should not put its own prestige on the line, Ahmed said.
The bench noted that the international arbitration could have been stalled on the ground of corruption and criminal offence. Salahuddin Ahmed said that corruption was related to a Balochistan Development Authority (BDA) official.
Justice Afridi noted that they (the Tethyan Copper Company) went to the arbitration tribunal against the termination of lease before the matter came before the Supreme Court. The ICSID Tribunal said they would not stop their proceeding.
Salahuddin informed the court that under the Chagai Hills Exploration Joint Venture Agreement (CHEJVA) the Balochistan government was supposed to grant the mining lease to the TCC. He argued that the reference on the Reko Diq is unique and it is justified. He stated that the financial circumstances of the country are not secure and it was close to a default.
He submitted that in the Hasba Bill and the Senate elections, the President had filed References pre-emptively seeking the opinion of the Supreme Court. He said if the ICSID and the ICC awards were not against Pakistan then the terms of the agreement with Barrick Gold in the reintroduction project could have been reasonably different.
He argued that even if the original question is broadly presented by the parties, the court could narrow it down. Upon that, Justice Bandial said the Court cannot reframe the issue. Salahuddin asked the bench to narrow down the scope of controversy, adding not to test each clause of the agreement on the touchstone of constitutional provisions.
The chief justice said if the Court answers then it will confine to the propositions of the counsels.
Salahuddin said: “We will not demand carte blanche relaxation like BMR.”
The case was adjourned until today (Wednesday).
Copyright Business Recorder, 2022