Open letter to Dr Abdul Malik Baloch Usman Raza Jamil Tuesday, December 23, 2014 From Print Edition 328 184 105 7 With reference to your press conference of December 11 and subsequent news reports whereby you had categorically denied that no ‘deal’ was being struck with TCC or any foreign company by the government of Balochistan on the future of Reko Diq copper and gold reserves, the following questions relating to the single largest natural resource located in the Subcontinent are being raised on behalf of the citizens of Pakistan. Ever since the judgement dated January 7, 2013 by the Honourable Supreme Court of Pakistan in CPLA No. 796 of 2007 and other connected matters (reported as PLD 2013 SC 641 – a 150 page judgement), it appears that much panic has been caused, owing to the threat of Pakistan being saddled with a potential claim of billions of dollars in favour of TCC by the international arbitration forums which are currently seized of TCC’s claims relating to alleged violations of a Bilateral Investment treaty and the arbitration agreement provided for in the CHEJVA. It is evident that TCC has clearly appealed to ICSID and ICC against the decision of the Honourable Supreme Court whereby it was unanimously held that the CHEJVA of 1993 was void ab initio, contrary to all applicable laws of Pakistan and that all subsequent novations and addendums to the said agreement were held to be illegal and void. Therefore the legal position with respect to the international arbitration proceedings, inter alia, is as follows: • The claim for arbitration before the ICC under the CHEJVA is not maintainable as it is based on a void ab initio agreement, which is against the constitution of the Islamic Republic of Pakistan, 1973 and is in violation of the applicable laws relating to mining in Balochistan. • The claim for arbitration before ICSID, purportedly under the Pak-Australia BIT of 1998, filed by TCCA against the federal government, is not maintainable as the alleged ‘investment’ sought to be protected in Pakistan does not belong to Australia, rather it has been made by Chile and Canada, through Antagofasta and Barrack Gold and there is no Australia investment per se that deserves to be protected under the said Treaty. The filing of the aforesaid claims for arbitration before the ICC and ICSID by the foreign company respondents is a scheme to avoid the operation of the laws of Pakistan and the authority of the honourable courts in Pakistan to enforce the said laws in Reko Diq. It is settled law in Pakistan that matters involving questions of criminality and public policy cannot be referred to arbitration. Then why are representatives from the provincial and federal governments reportedly negotiating with TCC? And more importantly, why have the provincial and federal governments submitted to the jurisdiction of the foreign arbitration tribunals? Are the jurisdictions of the foreign arbitration tribunals superior to those of our courts? The alleged enforcement being sought by TCC is under agreements which are subject to the respective governments working under the laws of Pakistan. The clear constitutional position is that there was nothing to negotiate. The respective governments were duty bound to act in accordance with the constitution in a transparent and competitive mode as laid down by the Honourable Supreme Court because in this case, the respective governments have decided not to undertake the exploration, mining and smelting itself and invest no money of its own and so far, none of the respective governments are taking any money as a loan from a foreign country in the form of a tied loan. The future of the potential of Reko Diq and District Chagai may only be protected through open, transparent and international tendering. But instead, the provincial government is avoiding bidding and resorting to unconstitutional negotiations, which can only damage the valuable future of Pakistan. Why are we not following what Afghanistan has done in the case of the Qara Zaghan gold mines, which is a continuation of Reko Diq in Afghanistan? In that case, the people of Afghanistan were the sole beneficiaries in the long term through the open competitive bidding procedure and terms of agreement signed by Afghanistan under the guidance of the present president of Afghanistan. The documents relating to the case of the Qara Zaghan Gold Mines were brought from Afghanistan, placed on the record of the Honourable Supreme Court of Pakistan and which were approved by the Supreme Court in its judgement dated January 7, 2013. Why has Pakistan not applied to become a member of the EITI (Extractive Industries Transparency Initiative), whereby global mining contracts are subjected to the highest levels of transparency international best practices? It was noted with great concern by the Honourable Supreme Court that the relevant members of the bureaucracy of the government of Balochistan at the time of the signing of the CHEJVA in 1993, themselves did not know the consequences of what they were giving away to foreign entities. The additional chief secretary of Balochistan, while forwarding a summary for the approval of the execution of the CHEJVA in 1993 to the then chief minister of Balochistan wrote: “Few people in the government really know what the GOB is getting into in the agreement. Agreed that BHP is a good party, mineral exploration in the area is highly desirable but the GOB has to be mindful of its interest specially the possible reaction of the people of the area to a large tract of land being reserved for BHP” Why have the provincial and federal governments, for the last 24 years, been blinded by their own petty self-interests in the matter of Reko Diq and Chagai Hills natural resource reserves? It is estimated that no more than $40 million have been spent by interested parties in Reko Diq on corruption. Why has the provincial government been consistently so incompetent that its corruption rates are so low and petty? The damage being caused to Pakistan owing to the non-development of the single largest natural resource reserve in the Subcontinent is incalculable. Why has the provincial government been keeping everything (all documents and details regarding this huge mineral wealth) secret? Surely, it is in public interest to safeguard the sanctity and future of the potential of our country. If anything, the provincial and federal governments should have been encouraged by the fact that TCC’s claims for interim relief were summarily dismissed by both ICSID and ICC. By submitting to the jurisdiction of the International Arbitration Tribunals and through forwarding reported summaries and holding discussions for negotiations in countries outside of Pakistan, such actions by the chosen officials of the respective governments are contrary to public interest, the constitution and effectively against the judgement rendered by the Supreme Court. We cannot let foreign companies and governments spread panic amongst our people with threats of having to be liable for billions of dollars of damages. We, the citizens of Pakistan, implore you to be steadfast to further protect the future of our children. Simply put – this time around, we have to be more competent; we have to be transparent and most of all, we must put the future of Pakistan ahead of our own self-interests. The writer is an advocate and has been closely associated with the conduct and preparation of the case relating to RekoDiq before the Honorable Supreme Court of Pakistan. Email:
Posted on: Wed, 24 Dec 2014 08:57:49 +0000
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