By Sohail Khan
ISLAMABAD: The Supreme Court was told on Monday that leasing out of the Reko Diq gold and copper mines in Balochistan to a foreign company was the biggest case of bad governance and irresponsibility.
A four-member bench of the apex court, headed by Chief Justice Iftikhar Muhammad Chaudhry, and comprising Justice Muhammad Sair Ali, Justice Ghulam Rabbani and Justice Khalilur Rehman Ramday, was hearing a case against the leasing of Reko Diq gold and copper mines in Balochistan worth over $260 billion to a foreign exploration and mining company by the federal government in violation of law.
Raza Kazim, the counsel for one of the petitioners, while concluding his arguments, told the court that Reko Diq case was bigger than the Pakistan Steel Mills and eight times bigger than the Indian Telecom case, wherein the Indian Supreme Court had stayed the licence in the case.
Justice Khalilur Rehman Ramday recalled that even the Indian IT minister quit after the court gave its judgment. At one point, Justice Ramday observed that as per the initial agreement made with the foreign company, it was held that the company will give instructions to the Balochistan government. “It is very painful how the provincial government surrendered in such a manner,” he said, adding: “The fault is on our side, if we do not honour ourselves then the foreign company is right in ruling us. We have given this right to the foreign company, and it is shameful to read the privileges that we have given in it (agreement).”
Raza Kazim contended that the status of Tethyan Cooper Company (TCC) was like an agent because it had sold out shares to other companies, Barrick Gold and Antofagasta Minerals. At this, Justice Muhammad Sair Ali asked the learned counsel as to whether the TCC was registered as a Pakistani company.
“Till 2000, it was not registered,” Kazim replied, adding that the company wanted to hold a monopoly in the area, so that neither local nor any other foreign company could come.
The counsel further submitted that EL-6 and EL-8 were in their possession despite the fact that their licence got expired in 2009. He further submitted that the company also got possession of EL-25 and 26 for which it had not yet attained any licence.
Balochistan Advocate General Salahuddin Mengal submitted before the court that the provincial government had expressed serious reservations over the feasibility report submitted by the company. He further submitted that their experts had made analysis of the said feasibility report and found that the company had covered so far only six square kilometres while the total area was about 450 square kilometres.
He further submitted that geologists of the Mineral Department had started their survey, adding until it was completed, no work would be started on the project. Meanwhile, Raza Kazim suggested to the court to constitute a commission that could make analysis of the feasibility report.
Later, Tariq Asad, the main petitioner, informed the court that he had not yet been provided relevant documents about the project. The court however, asked him to commence his arguments on the basis of whatever information he had as he had filed the petition.
Meanwhile, he argued before the court about the rules and bylaws concerning the lease. The court, however, directed him to give his formulations in a proper manner and argue as to how rules had been violated in the case and adjourned the hearing till today (Tuesday).
The News on November 3, 2010, had reported that some 20 top corporate bosses and lobbyists of two of the world’s largest gold mining groups had been meeting President Asif Ali Zardari, Prime Minister Syed Yousuf Raza Gilani, the State Bank governor and others in Islamabad throughout the week, pressing them to quickly hand over one of the world’s biggest gold and copper treasures found in Balochistan at Reko Diq, worth over $260 billion, to their companies, and for peanuts.
Later, Tariq Asad, advocate challenged the case in the apex court. Similarly, 26 senators also filed a joint petition against the leasing out of Reko Diq mines to a foreign company. APP adds: The chief justice observed that the feasibility report was with the Balochistan government since October last year and they were not sharing it with the apex court.
Musharraf was denied immunity in CJP restoration case
By Ansar Abbasi
ISLAMABAD: The critical issue whether the president enjoys immunity under Article 248 of the Constitution was categorically and specifically decided by the Supreme Court and it was denied to former president Pervez Musharraf in the case of restoration of the then-deposed chief justice Iftikhar Mohammad Chaudhry.
While the short order in the case given on July 20, 2007, by a 13-member bench, headed by Justice Khalilur Rehman Ramday, restored the chief justice, in its detailed judgment of the same case, given just 35 days ago, no room for any ambiguity has been left.
The detailed judgment, which did not receive much legal or media attention, addressed the issue, which Prime Minister Yousuf Raza Gilani has now referred back to the Supreme Court in his speeches in the National Assembly, and gave reasons and past references to deny immunity to a sitting president, even in criminal cases as provided for in Article 248 of the Constitution.
The detailed judgment issued on Dec 24 clearly states: “…allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice, no exception could be taken to implead the president as a respondent…”
Responding to objections raised in 2007 by the then-government (of Gen Musharraf), over impleading the then-president, the detailed judgment also refers to several previous judgments on this specific issue of Article 248 and cites examples where such immunities were not accepted.
The Ramday judgment refers to mala fide actions of Gen Musharraf and ruled in Para 107: “As would appear from the averments made in this petition, some of which have even been noticed in the earlier part of this judgment, the mainstay of the case of the petitioner, the chief justice of Pakistan, is that the entire exercise in question had been commenced for collateral purposes and suffered from mala fides which was sought to be established, inter alia, through the chief justice of Pakistan being summoned by the president to the Army House/President’s Camp Office; detention of the chief justice at the said office for about five hours; attempts made to secure the resignation of the chief justice under duress and through coercion; the alleged illegal detention of the wife and the children of the chief justice in their house and the alleged unconstitutional removal of the chief justice from his office and appointment of acting chief justice of Pakistan. Since such serious allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice of Pakistan, no exception could be taken to implead the president as a respondent in this petition, which was in fact imperative in view of the above-mentioned precedent cases.”
Interestingly, this judgment says the president can be impleaded for his actions of illegal detention of the chief justice, his wife and children, etc. All these actions are of criminal nature, which a sitting president ordered, but the Supreme Court did not give him immunity under Article 248(2), which says no criminal proceedings can be initiated or continued against a sitting president. The Constitution does not give immunity to president or any other public office holder in civil matters.
Referring to the objection raised that Gen Pervez Musharraf, the president of Pakistan, had been impleaded in the said petition as one of the respondents, which was seen by the then government as against the provisions of Article 248(1) of the Constitution, the judgment reproduced the said Article, which reads as: “The president, a governor, the prime minister, a federal minister, a minister of state, the chief minister and a provincial minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a province.”
Many past judgments were also quoted by the Ramday judgment of Dec 24, 2009. It said that such an immunity clause had been examined by the Privy Council in HB Gills case (AIR 1948 Privy Council 148) and the reaction of the Privy Council to such-like protective provisions was as under: “Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a government medical officer acts or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”
The judgment added: “In our jurisdiction the pleaded Article 248 came up for interpretation in Chaudhry Zahur Elahi’s case (PLD 1975 SC 383). The scope and the operational area of the said provision was so stated by this court: “…the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law.”
The matter was further explained in these words: “Hence, since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or un-constitutional acts.”
This court, the judgment said, when confronted again with the protection provisions of Article 248 in Amanullah Khan’s Case (PLD 1990 SC 1092) reiterated that the said provisions were required to be strictly construed and added in para 56 that: “If mala fide of fact was pleaded by a party then it had to decide for itself whether on the material with it, the minister has to be impleaded in spite of the protecting provisions of the Constitution; because if his act does not fall within the purview of the provision so interpreted, then he can be impleaded as a party and all objections to such impleadment dealt with in the proceedings. In the absence of the party, no finding with regard to mala fide of fact (as distinguished from mala fide of law) can be recorded, should be recorded and should have been recorded. Recourse to the principles of natural justice to overcome the prohibition contained in Article 248 of the Constitution is not permissible.”
“It was further declared: “Protection under Article 248 of the Constitution is not available to the designated functionaries if their actions suffer from mala fide of fact where the allegation against the protected functionaries is one of mala fide of fact, they have to be personally impleaded as a party to the proceedings;”
“The views of Nasim Hassan Shah J in the same case are also enlightening for the resolution of the issue in question. His views were: “Now the immunity to a minister extends only to the exercise of powers and performance of functions of his office or for any act done or purported to be done in the exercise of those powers and performance of those functions. A minister can be said to be acting in exercise of the powers and functions of his office, if his acts are such which not only lie within the scope of the powers and functions conferred on him by law but are performed bona fide and for carrying into effect the intention and purposes of the statute under which, he is acting. If on the other hand his acts are performed with mala fide intent or for a colourable purpose, such acts will not be deemed to have been performed in the lawful exercise of the powers and functions vested in him and will not, therefore, be covered by the immunity. Accordingly, where it transpires that a minister has acted illegally and abused his discretion and the illegality committed was not in the bona fide exercise of his powers and functions but on account of mala fides the immunity contained in Article 248(1) would not extend to protect such an act.”
Similar views were expressed by this court in Nawabzada Muhammad Umar Khan’s Case (1992 SCMR 2450) which were as under: “Secondly, where allegations of mala fide of fact are involved or alleged, it is necessary that the parties against whom such mala fide of fact is alleged must be impleaded as a party so that it has occasion to meet the allegation. This is notwithstanding the constitutional protection enjoyed by such functionaries under Article 248 of the Constitution vide Amanullah Khan and others Vs the Federal Government of Pakistan through secretary, Ministry of Finance, Islamabad, and others (PLD 1990 SC 1092).”
While there are such specific rulings and judgments given by the Supreme Court itself, the latest being on December 24, 2009, a new case filed by Khalid Khwaja is again before the Supreme Court to give another judgment on the subject.
The prime minister has promised in Parliament that he would act if the SC clarified the ambiguity, although after reading the Dec 24, 2009, judgment of Justice Ramday, there is no ambiguity left, an expert said, lamenting that perhaps no one in the government had bothered to go through this detailed judgment that has squarely discussed the issue of President’s immunity.
While many people around the world are busy in celebrating Valentines day today(14 Feb), lawyers and civil society are observing “Justice Ramday Day”.
Justice Ramday(Genuine non-PCO SC Judge), gave the historical decision in July 2007 to reinstate the CJ of Pakistan, Justice Iftikhar.
“Lawyers across the province will take out rallies and hold protest meetings in their respective areas,” said Punjab Bar Council Executive Committee Chairman Sayyed Intikhab Hussain in the statement.
Malik Qayum, the dictators pet attorney general and one of the master minds behind the current martial law blames SC Judge honourable Justice Khalil-ur-Rahman Ramday( who gave the historic 3rd July 2007 decision of reinstating the CJP Ifthikhar) for putting the judges in the current situation and also said that the deposed judges will not be reinstated on their positions.
Malik Qayum also said that emergency will be lifted on 15 December (But with some UN-CONSTITUTIONAL amendments 1973 amendments which will un-constitutionally legitimise the dictators decisions taken on November 3 and onwards).