The Supreme Court on Thursday deliberated over the question whether the Balochistan Assembly enjoyed the legislative competence of encroaching upon the federal jurisdiction to amend a federal law.
A five-member bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, was hearing the presidential reference on the reconstituted Reko Diq joint venture agreement.
Senior counsel Dr Farogh Naseem, in his capacity as amicus curiae (friend of the court), came up with a solution, suggesting that the amendment in the act be considered as a stand-alone statute.
He said the court, in its answer to the presidential reference, may state that Section 7, inserted by the Balochistan Assembly in the Regulation of Mines and Oilfields and Mineral Development (Government Control) Act (RMOMDA) 1948, does not conflict with the latter.
Counsel says going back to provincial legislature at the moment is ‘very difficult’
Being a federal law, the RMOMDA vests subjects like oilfields, gas fields and the nuclear issue in the federation whereas issues like minerals in the provinces.
The CJP, however, observed that the law may not be hybrid and may not be complete on its own, adding it was a provincial law borrowed from the federal act “head to toe”.
Section 7 says that in matters where there exists an international obligation, the provincial government may in the public interest, for reasons to be recorded in writing, enter into a negotiated agreement on such terms and conditions as may be agreed upon by it.
The amendment stated that the provincial government will also have the power to implement such a negotiated agreement, including without limitation by the grant or renewal of any licence, lease or other right granted.
It also explained that the negotiated agreement will mean a commercial agreement between one or more persons and the provincial government entered into through private negotiation and without public tendering regarding the grant of a licence, lease or other rights to explore, prospect mine, refine, develop, process, export, exploit and sell any mineral or minerals and do any and all other things in relation to mines and mineral development.
Dr Naseem said the environment was not conducive for the court to hold that the amendment in the 1948 act could be done away with by the federation. He added that both the 1948 act as well as the Section 7 amendment were correct legislation and both occupied respective fields.
The controversy surfaced when Justice Munib Akhtar observed that law on provincial powers made by the provincial legislature cannot impose statutory obligations or duties on the federal law, though the federal law can impose such obligations on the provincial government.
Thus the provincial legislature’s powers can also be exercised by the federal legislature, Justice Akhtar emphasised. He recalled that already the Khyber Pakhtunkhwa province had made a separate law in this regard.
Earlier, Balochistan government’s lawyer Salahuddin Ahmed argued that the government was running on a very tight time constraint. It was difficult to adopt a separate law or rule and therefore Section 7 Amendment was the only practical solution to the problem, he added.
When Justice Yahya Afridi observed that the provincial assembly could be brought on board to adopt a separate law, Mr Ahmed said the Balochistan government was already on board and had been briefed during a session spread over nine hours after which they passed the Section 7 Amendment.
Justice Afridi observed that one should not shy away when a clarification was needed in a law and therefore it should get it done through the provincial assembly and, while pointing towards the counsel, observed that the lawyer had brought a general law but wanted the court to impose the same.
The counsel, however, told the court that the Balochistan Assembly had made the legislation as per its understanding and going back to it for the new legislation was very difficult at that time.
Justice Jamal Mandokhel suggested to the counsel that in future the assembly make an independent law.
Mr Ahmed explained that they had invoked the apex court’s jurisdiction pre-emptively to seek its advice in this regard.