Writ Petition No.1769-P/2017 (KPK Minerals Sector Governance Act, 2016 repealed)

The petitioner sought the constitutional jurisdiction of the Peshawar high court to have the Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016 (“the Act of 2016”) and the Khyber Pakhtunkhwa Mineral Titles (Large and Small Scale Mining) Rules, 2017 Rules (“the 2017Rules”) to be declared to have been made without lawful authority, in violation of the Constitution and the ratio of the Mustafa Impex case[1], and therefore be struck down. Alternatively, it was sought that certain provisions of the Act of 2016 and the 2017 Rules being ultra vires article 2A, 4, 5, 9, 10A, 14, 18, 24, 25, 115, 129, 227 and 264 of the Constitution and precedent of the superior courts qualified the entire Act of 2016 and the 2017 rules to be struck down as they were, in any case, impractical and impossible to implement. In addition to these it was requested that the establishment of and all the work done by the Khyber Pakhtunkhwa Mineral Investment Facilitation Authority (MIFA) and the Mineral Titles Committee purportedly under the Act of 2016 be set aside and that all notifications, orders, acts, and things made or done pursuant to the Act of 2016 and the 2017 rules be declared without legal effect and void ab initio and the Regulation of Mines and Oil-Fields and Mineral Development (Government Control) Act, 1948 (“the Act of 1948”) and the Khyber Pakhtunkhwa Mining Concession Rules, 2005 (“the 2005 Rules”) be re-instated. It was also requested that the respondents be directed to engage and involve the petitioner, recognized as an essential stake holder by the 2005 Rules and the 2014 policy, regularly, in meaningful consultations regarding the formulation of any policy and legislative measures etc. The petitioners also requested that an interim relief be granted to them, which would disable MIFA and the Mineral Titles Committee from functioning or taking any adverse action against them, pursuant to the Act of 2016, the 2017 Rules or any other legislative or executive measure in pursuance of this Act and Rules, including their retrospective application, pending appeals and proceedings of the members of the petitioner’s association.

The court held that regarding the contest to the constitutionality of the Ordinance, Act of 2016 and Rules of 2017, the test to gauge the constitutionality of an enactment was laid by the Supreme Court in Messrs Mustafa Impex’s case, which had not been adhered to in promulgating the Act of 2016 and the Rules of 2017.

For this, the Supreme court in the aforementioned case stated that failure to follow the Rules of Business 1973 would lead to any order made in their violation, to be legally invalid. The exercise of the powers of the Federal government, by the Cabinet, was constitutionally invalid and a nullity in the eyes of the law. Budgetary expenditure or discretionary governmental expenditure could only be authorized by the Federal Government (i.e. the Cabinet) and not the Prime Minister on his own. Any Act or statutory instrument purporting to describe any entity or organization other than the Cabinet, as the Federal Government was ultra vires and a nullity. The court also held that the Ordinance making power existed only after the prior consideration of the Cabinet and an ordinance issued without the prior approval of the cabinet was invalid as no bill in the parliament could be moved without having the Cabinet’s approval. Rule 16(2) which enabled the Prime Minister to bypass this procedure was therefore declared ultra vires by the Supreme Court.

The judge presiding over the current case stated that it was a settled fact that apart from the Khyber Pakhtunkhwa Mines and Minerals Development and Regulation Ordinance, 2016 (“the Ordinance”), the amendments made to it and the bill laid before the provincial assembly, its amendments and the final ascent thereto by the governor were acts which took place without the approval of the Provincial Cabinet, after the Supreme Court’s decision on the Mustafa Impex case was pronounced. Therefore, the Act of 2016 and the 2017 Rules were clearly unlawfully constituted.

The Additional Advocate General contended that the Ordinance promulgated by the provincial government before the Mustafa Impex case’s decision by the Supreme court was announced, ought to be considered a valid piece of legislation and therefore be declared the Act of 2016. To this the petitioners submitted that the decision of the Supreme court in the Mustafa Impex case would have retrospective effect and therefore nullify the constitution of the legal instrument. This Additional Advocate General responded to by asserting that the decision of a court of law was prospective, unless expressly stated to be retrospective, which had not been the case for the Mustafa Impex case, which therefore would apply prospectively. To this the judge presiding over the case stated that since the Ordinance promulgated originally had been amended prior to being considered as a Bill introduced in the Provincial Assembly of Khyber Pakhtunkhwa (KPK) and had out lived its constitutional life, it would be legally inappropriate to pass a decision on it, based on a decision of the Supreme Court which was held after its promulgation.

The Additional Advocate General also contended that the Ordinance was introduced as a Bill before the Provincial Assembly of KPK in pursuance of clause A sub-Article (2) of Article 158 and via the provision contained in sub-article (3) of Article 128 of the Constitution which, according to Rule 19 (1) of the Khyber Pakhtunkhwa Rules of Business, 1973, mandated no consent of the Provincial cabinet. The judge presiding over the matter state that he did not agree with this as the very foundation of the original Ordinance lacked constitutionality and authority under the law which permitted no further structure to be built upon it, and since the Bill in the current case had been introduced after the decision of the Mustafa Impex case, the Ordinance although promulgated prior to this decision, had to be “legally cleansed” by the approach of the Provincial Cabinet, before it could be considered by legislature. This crucial omission on the part of the Provincial Government rendered the legal enactment under consideration, to be without lawful authority.

The judge further disagreed with the Additional Advocate General where he stated that this constitutional disability of the Bill so introduced, culminating in the impugned Act of 2016 was in fact a procedural irregularity and therefore according to Article 69 read with 67 of the Constitution, was  beyond the jurisdiction of a constitutional court. He stated that he disagreed with this point as the Act of 2016 lacked the fundamental legal precedent of prior approval of the Provincial Cabinet which tampered with its constitutionality and could not, therefore, be ignored as being procedural. Therefore the court declared the Act of 2016 to be ultra vires.

Regarding the other requests by the petitioners the court sated that the since lack of prior approval from the cabinet was the ground which disqualified the Act of 2016, it was legally unacceptable to further expand the court’s finding on any other grounds.

The court therefore declared the Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016 and the Khyber Pakhtunkhwa Mineral Titles (Large and Small Scale Mining) Rules, 2017 Rules to have been made without legal authority and therefore to be of no legal consequence which in turn vitiated the Khyber Pakhtunkhwa Mineral Investment Facilitation Authority (MIFA) and all actions and decisions taken by it, as it had been created under the Act of 2016.

[1] PLD 2016 SC 808