ISLAMABAD: The Supreme Court on Saturday released detailed reasons explaining the decision of the larger bench, led by former Chief Justice Umar Ata Bandial, which on December 9, 2022, approved the Reko Diq settlement deal between Pakistan and international firms, Antofagasta Plc and Barrick Gold Corporation. This explanation came after a gap of 21 months, despite Justice Bandial’s earlier statement that the initial order was comprehensive and required no additional justification, given that both parties had already implemented the settlement.
The court’s opinion was in response to a presidential reference regarding the Reko Diq reconstitution deal. The reference, submitted by former President Dr. Arif Alvi, sought clarification on whether the Supreme Court’s 2013 judgment in the Maulana Abdul Haque Baloch case prevented the federal and provincial governments from entering into the implementation agreement, and whether the proposed Foreign Investment (Protection and Promotion) Bill, 2022, or any amendments to it, would violate the Constitution.
The court’s initial 13-page short order stated that “the agreements do not, prima facie, violate any of the findings recorded in the 2013 Abdul Haque Baloch case.”
Cautions Against Overreach in Public Policy Matters
Justice Yahya Afridi, however, warned against repeating what he termed a “judicial adventure” by venturing into the “unruly horse” of public policy. He criticized the 2013 Supreme Court decision in the Maulana Abdul Haque Baloch case, suggesting that it was a rushed judgment in a situation where no “live issue” remained for determination, since the relevant mining licence had already been canceled by the licensing authority. Justice Afridi observed that this judicial overreach had led to greater financial exposure than the benefits it aimed to achieve.
Justice Afridi argued that the complex commercial mining transactions involved in the Reko Diq deal went beyond mere “questions of law,” encompassing broader “polycentric issues” that crossed international borders. He emphasized that such matters did not meet the threshold for being considered purely legal questions within the Supreme Court’s advisory jurisdiction.
Justice Jamal Khan Mandokhail, in his opinion, suggested that the federal and provincial governments, as trustees of public resources, must ensure the sustainable use of natural resources and prioritize the rights of future generations. He proposed establishing a “sovereign wealth fund” where a portion of the mining revenues could be invested for the long-term benefit of future generations, with a particular focus on health services and technical education.
He also recommended that corporate social responsibility (CSR) initiatives, currently mandated in the agreements, be extended beyond Reko Diq to support the socio-economic development of the entire Rakhshan division and the broader Balochistan region.
