IN THE SUPREME COURT OF PAKISTAN 
(Advisory Jurisdiction) 
 
 
PRESENT: 
 
 
Mr. Justice Umar Ata Bandial, CJ 
Mr. Justice Ijaz ul Ahsan 
Mr. Justice Munib Akhtar 
Mr. Justice Yahya Afridi 
Mr. Justice Jamal Khan Mandokhail 
 
Presidential Reference No.2 of 2022 
(Reference by the President of the Islamic Republic of Pakistan 
under Article 186 of the Constitution of the Islamic Republic of 
Pakistan, 1973.)  
 
IN ATTENDANCE 
 
 
For the Federation  
: 
Ch. Aamir Rehman,  
Addl. Attorney General 
Assisted by: 
Barrister M. Usama Rauf 
Mr. Zohair Waheed 
Miss Maryam Rashid & 
Miss Faryal Shah Afridi, Adv.  
 
 
 
For PPL/OGDCL/ Govt. 
Holdings (Pvt.) Ltd. 
: 
Barrister Jahanzeb Awan, ASC 
Assisted by: 
Mr. Umar Shahzad Abbasi 
Mr. Abdullah Raza 
Mr. Shabbir Harianwala 
 
 
 
For Govt. of Balochistan  : 
Mr. Salahuddin Ahmed, ASC 
Mr. M. Asif Reki, AG, Balochistan 
Mr. M. Ayaz Khan Swati, Addl. AG, 
Balochistan 
 
 
 
For PBC  
: 
Mr. Mansoor Usman Awan, ASC 
 
 
 
For Balochistan Bar 
: 
Mr. Amanullah Kanrani, ASC 
 
 
 
Amici Curiae  
: 
Mr. Salman Akram Raja, ASC 
Dr. M. Farogh Naseem, ASC 
Mr. Zahid F. Ibrahim, ASC 
 
 
 
For Barrick Gold 
Corporation  
: 
Mr. M. Makhdoom Ali Khan, Sr. ASC 
Assisted by: 
S.M. Faisal Hussain Naqvi, ASC 
Mr. Iftikhar-ud-Din Riaz, ASC 
Mr. Saad M. Hashmi, Advocate 
Kh. Aziz Ahsan, Advocate 
Mr. Yawar Mukhtar, Advocate 
Kh. Azeem, Advocate 
 
 
 
White & Case 
: 
Rabecca Campbell 
Mr. Kamran Ahmed 
(Via Video-Link) 
 
 
 
 
 
Reference No.2/2022                                                                                                
 
 
 
 
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Lazard 
: 
Spiro Youakim 
Pierre Cailletea 
Xovier de Regloix 
(Via Video-Link) 
 
 
 
Dates of Hearing 
: 
25 Oct 2022, 01-02 Nov 2022, 7-10 Nov 
2022, 14-17 Nov 2022, 21-24 Nov 2022, 
28-29 Nov 2022  
 
 
 
OPINION 
 
 
 
For detailed reasons to be recorded later and subject 
to such amplification and elaboration as may be considered 
necessary, Presidential Reference No.2 of 2022 is answered as 
follows:   
2. 
 
On 29.07.1993 the Balochistan Development Authority 
(BDA) entered into the Chaghi Hills Exploration Joint Venture 
Agreement (CHEJVA) with a foreign investor having 75% 
shareholding and BDA having 25% shareholding plus 2% royalty. 
Subsequently, in the year 2006, the foreign investor was succeeded 
by Tethyan Copper Company Pty. Ltd., Australia (TCCA). TCCA in 
turn was acquired by Barrick Gold Corporation (Barrick) and 
Antofagasta in equal shares. Under CHEJVA Barrick and its 
partner had the exclusive right to prospect and explore for copper 
and gold in the Reko Diq area.  
3. 
 
Between 2006 and 2011, TCCA invested in mineral 
exploration and developed detailed plans for mining at Reko Diq. 
However, on 15.11.2011, the licensing authority of the Government 
of Balochistan (GoB) declined the mining lease application 
submitted by the project company of TCCA. Shortly thereafter, on 
28.11.2011 TCCA initiated arbitration proceedings under the Pak-
Australia Bilateral Investment Treaty (BIT) against the Government 
of Pakistan (GoP), which claim was registered as an arbitration 
case with the International Centre for Settlement of Investment 
Disputes (ICSID). TCCA also commenced arbitration proceedings 
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against GoB at the International Chamber of Commerce (ICC) for 
claims arising out of the CHEJVA. Meanwhile a Writ Petition filed 
by a Pakistani citizen challenging CHEJVA was dismissed by the 
High Court of Balochistan on 26.06.2007. Leave to appeal to the 
Supreme Court against the said judgment was clubbed with other 
Constitution Petitions. All the matters were disposed of by the 
Supreme Court vide short order dated 07.01.2013 setting aside the 
judgment of the High Court of Balochistan. The detailed reasons 
are reported as Abdul Haque Baloch Vs. Government of 
Balochistan (PLD 2013 SC 641). As a result, CHEJVA was 
declared void, inter alia, on the ground that it had been entered 
into without lawful authorization and was a non-transparent 
agreement that failed to comply with the regulatory provisions of 
law regarding mining operations in the Province.  
4. 
 
The ICSID arbitration continued in the meanwhile and 
on 10.11.2017 the ICSID Tribunal rendered its decision on 
jurisdiction and liability. On 12.07.2019 the ICSID Tribunal 
announced its final award with TCCA receiving approximately US$ 
5.9 billion in damages, pre-award interest and costs incurred by it. 
Further litigation ensued as TCCA made efforts for enforcing the 
award in different jurisdictions.  
5. 
 
In the above background, the GoP and the GoB 
commenced talks with the TCCA. After lengthy negotiations 
spanning over three years between the representatives of the two 
Governments and the TCCA Board, a settlement was proposed. 
According to the settlement the financial liability of the GoP under 
the ICSID award was agreed to be settled under the terms and 
conditions incorporated in a set of agreements executed between 
the parties. We do not propose nor are we required to comment on 
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the commercial terms settled between the parties which have been 
agreed after extensive negotiations between GoP/GoB and 
Barrick/Antofagasta. In such negotiations GoP/GoB had the 
assistance of independent international financial, technical and 
legal experts in addition to Pakistani experts. The negotiations 
were conducted by the duly authorized representatives of the 
parties who had been instructed by the competent authorities. 
Simultaneously, the ICC proceedings have also matured to a point 
of decision on liability and quantum with a likely award (as per the 
advice of international legal and financial consultants of GoP) of 
approximately US$ 2 to 3 billion expected in favour of TCCA. As a 
result, in addition to the actual determined liability of US$ 5.9 
billion plus interest (on the basis of the ICSID Award), another US$ 
2 to 3 billion award is in the pipeline to be paid to Barrick and 
Antofagasta by the GoP and GoB. We have been informed that as 
part of the settlement, the parties have agreed that Antofagasta 
shall be paid an amount of US$ 900 million which has since been 
deposited in an Escrow Account by the GoP. Upon fulfillment of 
the conditions precedent on or before December 15, 2022 
Antofagasta shall be entitled to the amount in the Escrow Account. 
On receipt of the said amount any and all rights of Antofagasta 
under the ICSID award, the ICC proceedings and any and all 
claims of Antofagasta against GoP/GoB directly or indirectly 
arising out of or having any nexus or connection with the Reko Diq 
project shall stand finally and conclusively extinguished with no 
further claims either against Barrick or GoP/GoB. It was also 
agreed between the parties that under the settlement the Reko Diq 
project will be reconstituted with Barrick being the operator and 
TCCA holding 50% of the equity with the remaining 50% of the 
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equity being held by local Pakistani entities. We have been 
informed that the 50% local interest will be held as follows: 
(i) 
GoB holding a 10% free carried interest;  
(ii) 
GoB holding a 15% fully participating interest 
indirectly; 
 
(iii) 
GoB receiving royalty at the rate of 5%; and 
(iv) 
GoP or designated Pakistani entities holding the 
remaining 25% fully participating interest. 
The parties also agreed to a package of negotiated fiscal measures 
such as royalties and taxes applicable to the project that will be 
stabilized/granted for a specific period. Following the restructuring 
of the Reko Diq project, Antofagasta will be paid US$ 900 million 
plus accrued interest by the GoP and will exit the project by 
transferring its entire interest in TCCA to Barrick. The GoP, GoB 
and both Barrick and Antofagasta have agreed that all the disputes 
that have arisen from the Reko Diq project which are the subject 
matter of litigation/Arbitration Award(s) anywhere in the world  
shall finally and conclusively stand resolved as soon as the 
agreements which have been placed on record and the conditions 
precedent mentioned therein are met on or before December 15, 
2022, and any or all claims including the outstanding ICSID award 
and the anticipated ICC award shall stand settled without any 
further claim of any nature from either side. One of the conditions 
precedent for finalization of the proposed settlement is the 
President of Pakistan seeking an opinion from this Court on the 
points noted in the Implementation Agreement.  
6. 
 
In light of the above background the President of 
Pakistan has referred the following questions for consideration and 
opinion of this Court: 
“i) 
Whether the earlier judgment of this Honourable 
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Court reported as [Maulana] Abdul Haque Baloch v. 
[Government of Balochistan], PLD 2013 SC 641 or the 
laws, public policy or Constitution of Pakistan prevent 
the GoB and the GoP from entering into the 
Implementation 
Agreement 
and 
the 
Definitive 
Agreements [Agreements] or affect their validity?  
 
ii) 
If enacted, would the proposed Foreign Investment 
(Protection and Promotion) Bill, 2022 [FI Bill 2022] be 
valid and constitutional?” 
 
 
7. 
 
We have heard the learned Additional Attorney General 
for Pakistan, the learned counsel appearing on behalf of Barrick 
and the Advocate General Balochistan assisted by Mr.Salahuddin 
Ahmed, ASC. We also appointed Mr.Farogh Naseem, ASC, Mr. 
Zahid Ibrahim, ASC and Mr.Salman Akram Raja, ASC as amici 
curiae who have also ably assisted the Court on the legal and 
constitutional issues involved in the matter. Mr.Amanullah 
Kanrani, ASC also submitted written submissions on behalf of the 
Balochistan Bar Council. We have also heard Messer Spiro 
Youakim, Pierre Cailletea and Xovier de Regloix, representatives of 
Lazard as well as Ms.Rabecca Campbell and Mr.Kamran Ahmed of 
White and Case (via video link) who were the Financial 
Consultants/Legal Advisors of the GoP/GoB respectively during 
negotiations with Barrick/ Antofagasta .   
8. 
 
On hearing the parties, we find that the following 
issues arise from the Reference:  
i) 
Whether the Constitution places any bar on the 
disposal of public assets through a negotiated 
agreement? 
 
ii) 
Whether the Regulation of Mines and Oilfields and 
Mineral 
Development 
(Government 
Control) 
(Amendment) Act, 2022 (2022 Act) is within the 
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legislative competence of the Balochistan Assembly? 
 
iii) 
Whether the process through which the GoB is 
entering into the Agreements is fair, transparent, 
reasonable and in accordance with law? 
 
iv) 
Whether the terms of the Agreements violate or are in 
conflict with the judgment of this Court in Abdul 
Haque Baloch’s case (PLD 2013 SC 641)? 
9. 
 
In light of our answers to the foregoing issues which 
raise legal and constitutional questions, the first question referred 
to this Court by the President of Pakistan, reproduced in 
paragraph 6(i) above is answered in the negative for the following 
reasons:  
i) 
It is settled law that while disposal of public assets 
through a competitive process is the ordinary rule, it 
is not an invariable rule. The Constitution does not 
forbid disposal of public assets other than through a 
competitive process so long as such disposal has the 
support of the law and is justified on rational 
grounds, as is the case here.     
 
ii) 
Ever since the enactment of the Constitution, 
legislative competence to deal with mines and mineral 
development (other than minerals used for nuclear 
energy) has rested exclusively with the Provincial 
Assemblies. Therefore, the Provincial Assemblies of 
Sindh and Khyber Pakhtunkhwa have already 
enacted comprehensive statutes dealing with mines 
and mineral development (other than minerals used 
for generation of nuclear energy). It follows from the 
legislative ambit of the Provincial Assemblies under 
the Constitution that they are competent to “alter, 
amend or repeal” any existing law to the extent that it 
deals with mines and mineral development. As far as 
the amendment incorporated in the Regulation of 
Mines and Oil fields and Mineral Development 
Reference No.2/2022                                                                                                
 
 
 
 
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(Government Control) Act, 1948 (1948 Act) is 
concerned, which has been introduced by way of the 
2022 Act, to the extent that the said statute applies 
to the Province of Balochistan it is intra vires the 
Constitution and the rules framed by the GoB under 
Section 2 of the 1948 Act. The 2022 Act can therefore 
be treated as a standalone provision that operates 
alongside the 1948 Act and the aforesaid rules 
insofar as the subject of mines and minerals 
development (other than oil fields and mineral 
resources necessary for generation of nuclear energy) 
falls within the exclusive legislative competence of the 
provincial legislature. 
 
iii) 
The Balochistan Cabinet has approved the decision to 
enter into the Agreements on the basis of a detailed 
summary, a copy of which has been filed with this 
Court. The summary considers ‘public interest’ 
inherent in the negotiated agreement and since the 
Agreements pertain to an ‘international obligation’ in 
terms of the 2022 Act (i.e., Pakistan’s obligation to 
make payment of approximately US$ 6 billion under 
an ICSID award dated 12.07.2019), the formal 
obligations required under the 2022 Act for entering 
into a negotiated agreement stand fulfilled. 
 
iv) 
The Federal Government has placed on record 
documents to show that an Apex Committee headed 
by the Prime Minister of Pakistan and attended by all 
the 
relevant 
stakeholders 
(including 
the 
Chief 
Minister and Chief Secretary of Balochistan) had 
carefully negotiated the terms of the Agreements with 
the 
help 
of 
international 
financial 
advisors, 
international legal advisors, international mining 
experts and international tax advisors in addition to 
independent Pakistani advisors. As noted above, the 
international advisors also addressed the Court 
directly during proceedings in-person and through 
video link, and answered all the queries raised by the 
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Court. Prima facie, the Agreements cannot be faulted 
for lack of due diligence on the part of State 
authorities. 
 
v) 
The Agreements do not, prima facie, violate any of the 
findings recorded in the Abdul Haque Baloch case 
(PLD 2013 SC 641). Unlike CHEJVA, the decision to 
enter into the Agreements is backed by law and has 
been taken on the basis of careful negotiations during 
which authorized representatives of GoP/GoB were 
duly 
assisted 
by 
independent 
international 
consultants.  
 
Further, the obligation to act in accordance with 
“Applicable Law” contained in the Agreements as well 
as the obligations of the Licensee to apply for 
consents in accordance with law and satisfy all 
conditions prescribed by the Applicable Law means 
that the statutory discretion of public functionaries is 
not being fettered by the Agreements. 
 
vi) 
We have also been informed that the Provincial 
Assembly of Balochistan was given a detailed in-
camera briefing and was taken into confidence 
regarding the entire project and the terms and 
conditions of the proposed settlement between the 
parties were accepted without any objections being 
raised by the chosen representatives of the people of 
Balochistan.   
 
vii) 
On our specific query relating to environmental 
considerations, particularly in relation to the use of 
water, we have been informed that the Agreements 
contain no exemption from Pakistan’s environmental 
laws. Rather, the Agreements require Barrick to act 
in accordance with both international environmental 
standards and domestic laws.  
 
Reference No.2/2022                                                                                                
 
 
 
 
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10. 
 
The second question is answered in the affirmative for 
the following reasons:  
i) 
Article 144 of the Constitution allows Provincial 
Assemblies to empower Parliament to pass a law 
dealing with issues within the legislative competence 
of the Provinces. Similarly, Article 147 of the 
Constitution allows the Provinces to entrust, either 
conditionally or unconditionally, to the Federal 
Government or to its officers, functions in relation to 
any matter to which the executive authority of the 
Province extends. 
 
ii) 
We have been provided the draft resolutions proposed 
to be passed by the Provincial Assemblies of Sindh 
and Balochistan to empower Parliament to enact the 
proposed FI Bill 2022. Provided that the draft 
resolutions are passed, Parliament will be competent 
to enact the FI Bill 2022, including the notified 
exemptions specified in the Bill and the protected 
benefits listed in the Third Schedule. 
 
iii) 
The provisions of Section 3 of the FI Bill 2022 do not 
in our opinion fetter the sovereignty of Parliament. It 
appears that the FI Bill 2022 represents a version of 
the Protection of Economic Reforms Act, 1992. It 
allows the Federal Government to notify certain 
benefits which may not be withdrawn to the prejudice 
of an investor. We have also been informed and there 
is consensus of all the learned counsel in this matter 
that Parliament remains at liberty to repeal the entire 
FI Bill 2022, if it so desires, of course subject to the 
corresponding legal consequences that may arise 
from such repeal.  
 
On our query, we have also been informed that most 
of the exemptions proposed to be granted are already 
available under the regulatory regimes pertaining to 
Export Processing Zones and Special Technology 
Zones.  Further, the exemptions being granted from 
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the operation of Labour Laws do not denude the 
labour force of their rightful entitlement to fair wages, 
allowances and guarantees/benefits provided by law. 
The learned counsel for Barrick has categorically 
assured us that the applicable minimum wage laws 
will be fully observed and the Agreements expressly 
provide that all operations will be carried out in 
accordance with International Mining Standards 
which are defined to include compliance with IFC 
Performance Standards, to the extent applicable. It 
has been pointed out to us that the IFC Performance 
Standards contain detailed provisions pertaining to 
labour rights. Barrick has also committed to act in 
accordance 
with 
the 
United 
Nations 
Guiding 
Principles on Business and Human Rights. We have 
also been assured that Barrick will contribute 
substantially towards Corporate Social Responsibility 
by dedicating a percentage of its returns towards 
provision of fresh drinking water, health facilities, 
schools and local infrastructure to the people of 
Balochistan. In addition, most of the labour force will 
be employed from amongst the local population of the 
Province. In addition, programs for development of 
skills will also be put in place.  
 
11. 
 
A point that emerges from the Reference filed before us 
is whether the FI Bill 2022 can be challenged on the ground that it 
is a person specific law. We note that the FI Bill 2022 is not limited 
exclusively to the Reko Diq project. Instead, it provides a 
framework for grant of investment incentives which will, subject to 
the provisions of the Bill, be available to all investments of US$ 
500 million or more. The fact that the Reko Diq project is the first 
to be identified as a “Qualified Investment” under the FI Bill 2022 
does not render the statute as “person-specific.” Furthermore, to 
the extent that legislative amendments in the Second Schedule to 
Reference No.2/2022                                                                                                
 
 
 
 
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the FI Bill 2022 pertain specifically to the Reko Diq project, such 
statutory provisions and mechanisms are the norm in a number of 
other fiscal statutes, including, but not limited to the Income Tax 
Ordinance, 2001. Under the terms of the FI Bill 2022 such specific 
exemptions are required either to be legislatively promulgated or 
legislatively ratified. 
12. 
 
We also note that the proposed FI Bill 2022 will not 
only pave the way for implementation of the Reko Diq project in its 
present form but will also facilitate and encourage direct foreign 
investment in similar mining projects and other high capital 
intensive industries in which direct foreign investment is required 
to be encouraged through guarantees assured by laws and 
regulatory measures. 
13. 
 
To sum up we are of the view that the parameters set 
out in Abdul Haque Baloch’s case (PLD 2013 SC 641) and the 
reasons for the same, have been duly addressed by the Federal and 
Provincial Governments. The process for the reconstitution of the 
Reko Diq project has been undertaken transparently and with due 
diligence. The Agreements are being signed by authorities duly 
authorized and competent to do so under the law. To ensure 
transparency and fairness, expert advice on the financial, technical 
and legal issues involved has been sought from both local as well 
as independent international experts/consultants on the terms 
settled in the Agreements. The Agreements have been put in place 
after due deliberation and have not been found by us to be 
unconstitutional or illegal on the parameters and grounds spelt out 
in Abdul Haque Baloch’s case ibid.  Likewise, the rationale, basis, 
legality and vires of the FI Bill 2022 as well as the amendments to 
its schedules and annexures and the amendments incorporated 
Reference No.2/2022                                                                                                
 
 
 
 
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through SROs, provided the resolutions are passed by the Sindh 
and Balochistan Provincial Assemblies and the Bill is passed by 
the Parliament after following due process, shall be duly enacted 
as required under the Constitution. And such laws and regulatory 
measures do not in any manner violate the Constitution or the 
Law.   
 
  
The 
Reference 
is 
accordingly 
answered 
in 
the 
aforenoted terms.   
 
Sd/- 
Chief Justice 
 
 
 
 
  Sd/- 
 
 
Judge 
 
 
  Sd/- 
Judge 
 
I agree subject to my clarification that I may not 
respond to question No.1 to the extent of “public 
policy.” My detailed reasons shall follow. 
 
 
 
 
 
Sd/- 
 
 
Judge 
 
 
 
  Sd/- 
Judge 
Announced in Court  
on 09.12.2022 
 
 
 
 
Sd/- 
 
 
CJ. 
 
APPROVED FOR REPORTING.  
