Reko Diq: Pakistan versus Gold Diggers

These narratives show how foreign investors are a double-edged sword for Pakistan. TCC was suspected of lending support to Baloch separatists. 

Pakistan has recently been garnering a lot of attention in international tribunals. A recent case is the Reko Diq case, which led to arbitration in the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). In Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan (ICSID Case No. ARB/12/1), ICSID has ruled that Pakistan has to pay a $5.8 billion penalty to a mining company, the Tethyan Copper Company (TCC). It is an oddity that the Pakistani public has been disabled from knowing the full details of the ICSID arbitration judgment. The condition for the publication of the award is that both parties must consent to its publication and apparently there is no consensus that it should be published, or alternatively there is consensus that it should not be published. Either way that is rather opaque and lacks transparency. Yet we do know the identities of the arbitrators and the costly law firms employed by the parties and all the procedural steps in the arbitration (which is rather pointless indeed without knowing the full and exact details of the final arbitration award). 

It is rather appalling that the award is not in the public domain and the people of Pakistan are being denied access to the full details of the decision. Reko Diq is a region in Balochistan that has large gold and copper reserves. TCC acquired an exploration license in 2006, buying it from the company BHP Minerals. Though this seems a very recent mining project, TCC itself is a joint venture by other foreign companies, and BHP had been granted licenses since 1993 by the Balochistan Development Authority (BDA) under the Chagai Hills Exploration Joint Venture Agreement (Chevja). Now that TCC was exploring Reko Diq’s reserves, it completed its feasibility study in 2010, and applied for a mining lease, but it was denied. Chevja had been challenged by petitioners before. In 2013, the Supreme Court decided that the agreement (Chevja) was void ab initio. In 2009, the provincial government had already terminated Chevja.

Sacking of PM is Unconstitutional

The country, until two days ago, had a Prime Minister in office who commanded the confidence of parliament, which he had demonstrated not long ago by having a no confidence brought against him defeated in parliament.

President Sirisena’s sacking of Prime Minister Ranil Wickremesinghe and the appointment of Mahinda Rajapaksa in his place has been described by some as a ‘constitutional coup’. The phrase ‘constitutional coup’ is a contradiction in terms, or ‘an oxymoron’, because it would imply that although President Sirisena’s actions amounted to a coup, his actions are sanctioned by the constitution. There is no constitutional basis for the President to have removed the Prime Minister. At the press conference held on 27 October 2018, as reported in Adaderana (GL explains how PM was removed and why Parliament was prorogued) Dr G.L. Peiris, the chairperson of the SLPP, attempted to justify the legality of President Sirisena’s actions, putting forward two points in support. They are (i) the cabinet of ministers stood dissolved by the very fact of exceeding the numerical limit prescribed in Article 46(1), and (ii) the President as the appointing authority has also the power to dismiss him. In fact, the phrase used by Peiris is ‘compulsory removal’. What Dr Peiris sought to do was to provide an ex post facto rationale for the President’s action but the reasons he put forward for the removal cannot be reconciled with those given by the President. Nor are they reflected in the position taken by the President in his gazette notification.  

The gazette notification announcing the President’s decision stated that “the President in the exercise of powers conferred upon him under the Constitution …, has removed Hon. Ranil Wickremesinghe … with immediate effect.” (see The Gazette Extraordinary no. 2094/43 dated Friday 26 October 2018). There is no reference in this gazette to the specific provision or provisions of the constitution under which the President purported to act when removing the Prime Minister from office. If, as Dr Peiris says, the cabinet of ministers ceased to hold office and the Prime Minister had gone out with the cabinet, then there was no need for the President to have “removed” the Prime Minister from office, and to have done so with immediate effect. The President has not stated that the appointment of Mahinda Rajapaksa became necessary because the office of the Prime Minister which was occupied by Ranil Wickremesinghe had fallen vacant.

Panama Papers Scandal: Disqualifying Nawaz Sharif for Deception is Fair

Hopefully these proceedings will set a robust process into motion and annihilate Pakistan’s corrupt dynastic politics for good …

Skeletons in the closet have led to the premature demise of Nawaz Sharif’s government yet again and his third premiership has ended in disgrace. But is history repeating itself? The question is especially interesting given that it was “strike three” for Nawaz Sharif. On the third and final occasion, dismissal from the solemn office of prime minister carries the further indignity of disqualification for life. Of course, questions also arise about the exact motivations of the judiciary in disqualifying a democratically elected leader, one who was close to setting a benchmark by becoming the first ever prime minister to complete a full five-year term during Pakistan’s seventy-year history. The ball must get rolling somewhere and the Supreme Court set a powerful precedent for a zero-tolerance approach to the use of deception in politics. However, it remains to be seen whether the high standard adopted by the Supreme Court will be applied across the entire spectrum of Pakistan’s dirty politics which is in dire need of cleansing.

It was an uphill struggle for Nawaz Sharif because he was practising deception in proceedings regulated by the very Supreme Court his PML-N party ransacked in 1997 when photographs of Muhammad Ali Jinnah were desecrated. One problem for the court is that it has many skeletons in its own closet because it has habitually upheld brutal dictatorships applying a perverse “doctrine of necessity”. Rightly or wrongly, the former three-time prime minister has become the second world leader to become the casualty of the Panama Papers, but at least Iceland’s former prime minister Sigmundur Davíð Gunnlaugsson had the dignity to resign promptly. Last year’s disclosures led to the pronouncement of the Panama Papers judgment which established the Joint Investigation Team. Memorably, Khosa J drew unflattering parallels with The Godfather and mocked Nawaz Sharif by recalling the maxim that “behind every great fortune there is a crime”.

Dealing with Terrorism in Pakistan

The unprecedented rise of terrorism in recent years has sent shock waves of horror all across the world. Our own country is badly affected by this malaise and we would like to extend our commiserations to the people of France in relation to the terrible tragedy that occurred in Paris. Our hearts are with the French – who have always stood with the people and the government of Pakistan by helping us in the fight against terrorism and extremism – and we would like to express solidarity with the families of the victims of the massacre. Nothing justifies such insanity. As a developing nation we are all too aware that a free press is the lifeblood of democracy. In our own country, the murder of 148 innocents, including 132 children, by the Taliban in the Army Public School in Peshawar on 16 December 2014 was a deeply shocking event. It really was the last straw.

It has been reported that the attack on the school was an act of revenge which aimed to “get even” for the Nobel Peace Prize jointly awarded to Malala Yousafzai. Consequently, measures to tackle the menace of terrorism have been taken in the form of the Constitution (Twenty-First Amendment) Act 2015 ( or “the amendment”) which was speedily passed by the National Assembly and Senate on 6 January 2015 and presidential assent was given the following day. Showing solidarity across the border in neighbouring India, legendary Indian actor Dilip Kumar, who was born in Peshawar, said that “[t]he massacre has wounded me beyond words. My heart longs to reach out to the parents who lost their sons and daughters in the worst crime any country has witnessed in recent years.”

Dr Reeza Hameed: President’s Reference to the Supreme Court

It would be impossible for the Court to arrive at a considered opinion within such a short period of time …

It is reported in the media that President Rajapaksa has referred to the Supreme Court for its opinion the question of his own competency to contest a further term, and that the Registrar of the Court, on the instructions of the Chief Justice, has written to the President of the Bar Association of Sri Lanka (BASL) inviting submissions in writing but denying an opportunity to make oral arguments in Court. Furthermore, submissions are required to be submitted to Court no later than 3.00 pm on 7 November, which gives anyone less than 48 hours to do so. It appears that the Court is required to give its opinion to the President on 10 November 2014.

It is evident that President Rajapaksa has made this reference purportedly acting under Article 129 (1) of the Constitution, which provides for the Court to exercise it consultative jurisdiction. A president, acting under this provision, may refer ‘a question’ (not any question)

Dr Reeza Hameed: Constitution Changes – Points to Ponder

Originating in the works of Henry de Bracton and William Blackstone, the doctrine of necessity has plagued Pakistan’s history and M Munir CJ has rightly been labelled “the destroyer of democracy in Pakistan”. From that perspective, the doctrine of necessity will never get stale in Pakistan’s history. To be sure, our country has, through its law courts, which ought to have protected democratic virtue but opted to fall into despotic vice, set unparalleled standards for venality by being the first free nation to apply “the doctrine” to murder democracy in its nascency. In this old post from the archives, our friend Dr Reeza Hameed, examines the extension of the doctrine to Sri Lanka and we are grateful to him for his contribution to our blog. His article, which also analyses the case of Pakistan, follows below.

The government has claimed that it has a mandate from the people to implement its manifesto promise to convene a constituent assembly consisting of the members of parliament to formulate and promulgate a new constitution, that will derive its form and validity from the expression of the political will of the people and that the proposed constitution will strengthen democracy by abolishing the executive Presidency and replacing it with a Cabinet and the doctrine of necessity and Kelsen’s theory of pure law have been pressed into service to support the introduction of a constitution outside the framework of the 1978 Constitution.

Dr Masuma Hasan: International Women’s Day and Aurat Foundation

It was a great day for Aurat Foundation. Not only because 8 March was International Women’s Day but also because the Sindh Assembly unanimously passed long-awaited legislation against domestic violence. In its dying days, the Assembly adopted the Domestic Violence (Prevention and Protection) Bill 2013. This much needed legislation, defines domestic violence as:

• Gender related, physical, emotional, verbal, psychological abuse
• Pattern of degrading or humiliating conduct
• Insult, ridicule, threat to cause physical pain, malicious prosecution and threat of violence
• Obsessive possessiveness or jealousy undermining the privacy, liberty, integrity and security of the victim
• Baseless accusations
• Citing barrenness of a spouse for the purpose of marrying again
• Willful or negligent abandonment of the aggrieved person

Barrister Afzal Hussain: Proposed legislation on acid violence

Acid violence is a reprehensible crime and it is prevalent all over South Asia. It involves criminals committing violence – overwhelmingly against women – by throwing acidic substances at victims. This not only causes disfiguration of victims’ faces, but also causes lasting psychological problems.

Generally, offenders deliberately commit such crimes after careful planning – the free availability of acid makes the crime easy enough to commit. Although this crime can be directed against everyone (women, children and men), it is most frequently directed against women. The effects of acid violence are tragic and include disfigurement of the face, loss of eyes and limbs, damage to organs, and subsequent infections – victims and their families also suffer psychological damage over and above such physical injuries. In addition to mental trauma, survivors also face social segregation and exclusion which further injures their confidence and acutely undermines their public and private lives in a permanent manner. It is, therefore, unfortunate that in Pakistan – until now –  there  was no express legislative measure which selectively combatted the menace of acid violence.