SC earns praise for not interfering in country’s financial issues

In the past, SC meddling in financial matters negatively affected Pakistan's stance before international courts


Hasnaat Mailk February 18, 2018
PHOTO: AFP

ISLAMABAD: Though the superior judiciary led by Chief Justice of Pakistan (CJP) Mian Saqib Nisar is under 'severe' criticism due to some key judgments pertaining to political matters, it is also being praised for not interfering in the country's financial issues.

In the past, the Supreme Court's interference in financial matters negatively affected the country’s position before the international courts. Similarly, Pakistan is facing billions of rupees damages due to the court's intervention in different financial deals with foreign companies.

However, it seems that Justice Nisar has decided not only to show restraint in such matters but is even ready to extend his cooperation to resolve disputes, which may arise in the wake of China-Pakistan Economic Corridor (CPEC).

Supreme Court's three judge bench, headed by CJP Saqib Nisar, on February 12 rejected a petition against the award of a liquefied natural gas (LNG) import contract.

A senior lawyer told The Express Tribune that though one of respondent party had engaged him to plead their case, he is satisfied that the apex court rejected the petition before his appearance.

He believes that the SC decision to not intervene in the monetary matters is good in the interest of both court and state.

Even during the hearing, the chief justice observed that the SC does not want to repeat the episode of Reko Diq, Pakistan Steels Mills (PSM) wherein the country suffered huge financial losses due to court intervention.

Subsequently, he referred to Karkey rental power project case, wherein International Centre for Settlement of Investment Disputes (ICSID) awarded Rs80 billion damage to Pakistan. It is to be noted that ICSID in its award also asked serious questions on the conduct of the Supreme Court.

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Similarly, two days ago, the chief justice has sought the record of Pakistan Steel Mills case. During the hearing of a case on Thursday, the chief justice asked senior lawyer Khalid Anwar about his opinion regarding the SC’s 2006 judgment that had halted the privatisation of PSM.  The counsel replied that it was ‘bad’ verdict.

On behalf of one respondent the counsel had filed a fairly comprehensive review petition but it was dismissed in his absence as he was on general adjournment. Upon this, the CJ asked registrar office to place the file of case before him.

One section of lawyers believes that the larger bench judgement on privatisation of PSM should be revisited. The country is facing billions of rupees loss due to SC’s 2006 ruling.

Likewise, the CJP on February 3 held a special meeting of all chief justices high courts to consider mechanism to resolve the disputes, which are arising out in the wake of CPEC. The purpose of the meeting was to share views about dispute resolution mechanism for Chinese investors/the Pakistan government.

Top court forms committee to suggest guidelines for bringing foreign money in Pakistan

During the meeting, SC judge Justice Mushir Alam informed that with the CPEC investment in Pakistan there is likelihood of civil and criminal disputes in the country.

He emphasised the need of one law mechanism for One Belt One Road countries and that all the countries should adopt a uniform mechanism for dispute resolution.

He further stressed the need of international research centre for dispute resolution at Islamabad for which the judiciary may provide support.

Another SC judge Justice Syed Mansoor Ali Shah informed that with the huge CPEC investment disputes may arise. He emphasised the need of forming a forum like IFC Dubai to look after entire Foreign Direct Investment.

Dr Muhammad Raheem Awan, secretary Law and Justice Commission of Pakistan, informed that there are 48 bilateral investment treaties (BITs) of Pakistan in place, out of which one is with China which covers disputes and provide direct recourse to foreign investors to refer the dispute to arbitration centre under World Bank, therefore, he suggested establishment of dispute resolution mechanism to facilitate Chinese Investors.

Moreover, he suggested that the aforementioned BITs require revisiting and on this occasion the Chief Justice of Pakistan suggested that the Federal Law Ministry may see that whether the BITs require improvement.

At the end, the CJP directed chief justices to advise civil courts that no ex-party stay orders are passed in respect of CPEC related projects.

Last week, the apex court formed a three member committee, led by State Bank of Pakistan (SBP) Governor Tariq Bajwa  for developing guidelines to retrieve money stashed abroad illegally by Pakistani citizens in banks and properties.

The other members of the committee are Finance Secretary Arif Ahmed Khan and the Federal Board of Revenue (FBR) chairperson who have been given a week to come up with concrete solutions and actionable plans.

During the hearing, Justice Umar Ata Bandial made it clear that the purpose behind this exercise was not to create panic among the general public, but to point out lacunas in the law by pointing out transfers of large sums and assets by those using illegal channels for this purpose, without paying taxes.

"You will be heroes of this country if you manage to do this," CJP told the committee members.

Justice Bandial also asked the SBP governor to consider extending incentives to people, rather than discouraging them, so that they would prefer investing in Pakistan or bringing their money back. He pressed upon the authorities the need to devise formulas and schemes for this, and assured them that the court would help them because the existing machinery had been ineffectual in this regard. The legal experts are appreciating the judge approach in this matter.

SC led by former chief justice Iftikhar Muhammad Chaudhry had adjudicated on numbers of international financial deals during Pakistan Peoples Party (PPP) regime.

Likewise, it had passed coercive orders in matters related LNG contract, Rental Power Projects, Safe City Project etc. The SC proceedings had not only badly affected the PPP in political field but the court’s decisions also affected the international investment.

Karkey was awarded a $560 million contract for power ship operations in Pakistan to overcome a spiralling power crisis in the country. The initial contract was for five years. However, PPP-Patriots leader Faisal Saleh Hayat and the current foreign minister Khawaja Asif approached the top court against the contract awarded by the then PPP government.

In 2012-13, then NAB prosecutor general KK Agha attempted to settle the issue with Karkey but the then chief justice Iftikhar Chaudhry stopped his efforts and warned NAB officials of strict action in case a settlement was reached with the Turkish firm.

Karkey’s case is not the only one where Pakistan had to bite the dust. In the Reko Diq case, the ICSID dismissed Pakistan’s allegations of corruption against the Tethyan Copper Company Pty Ltd (TCC). Later, the TCC made a claim of $11.5 billion but Pakistan’s rejected it. Now the quantum stage has started, with both federal and Balochistan governments involved, and the TCC may agree to an out-of-court settlement.

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