IN THE ISLAMABAD HIGH COURT, ISLAMABAD
W.P. No________/ 2015
Dr. Fuzail Siddiqui, son of S.M. Afzaal Siddiqui, resident of House No.1067, Street 1, Block-C, Police Foundation, Sector O-9, Islamabad.
- Federation of Pakistan, through the Secretary, Ministry of Petroleum & Natural Resources, Government of Pakistan, Islamabad.
- Federation of Pakistan, through the Secretary, Ministry of States & Frontier Regions, Government of Pakistan, Islamabad.
- Mineral Investment Board, Islamabad, through the Secretary, Ministry of Petroleum & Natural Resources, Government of Pakistan.
- Director-General Minerals, Ministry of Petroleum & Natural Resources, Government of Pakistan, Islamabad.
- Geological Survey of Pakistan, Islamabad, through its Director-General
- Deputy Chairman, Planning Commission of Pakistan, Islamabad.
- Chairman, Board of Investment, Pakistan.
- Province of Punjab, through its Chief Secretary, Lahore.
- Province of Sindh, through its Chief Secretary, Karachi.
- Province of Balochistan, through its Chief Secretary, Quetta.
- Province of Khyber Pakhtunkhwa, through its Chief Secretary, Peshawar.
Writ Petition under Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973
- At the advance age of 76 years, the petitioner is not filing the instant proceedings so as to benefit/enrich himself in any manner, whatsoever. Having had the modern scientific education in his field of specialization and vast experience as a professional geoscientist, both at the national and international levels, the petitioner through the instant proceedings is advancing the larger public interest and seeks the intervention of hon’able High Court for realization of the same for future generations of this country. Additionally, the petitioner feels indebted to his country for attaining of higher academic qualifications and practical experience as a leading geoscientist, as narrated in the succeeding paragraphs. It is further submitted that the petitioner did translate his experience in the formulation of KPK “Mineral Policy 2014” and advised those who devised “National Mineral Policy 2013”, and, therefore, he wants to see the same implemented.
- By way of his background, it is submitted that the petitioner is one of the senior-most practicing geoscientists of Pakistan with over 56 years of active association with geological sciences, including an experience of over 25 years work in operating mines/metallurgical plants, mainly in the Zambian Copper-belt in the African continent. The petitioner graduated in 1958 from the Government College, Lahore, and got M.Sc. (Geology) from the UNESCO sponsored Geology Department of the Punjab University in 1960, and that too, with specialization in mineralogy and petrology. He received his PhD (Mineralogy) from the University of London (King’s College) in 1964, as a Colombo Plan scholar. The petitioner was initially appointed as a Lecturer, then was an Associate Professor, on the Faculty of Geology Department, Punjab University from 1960 to 1973. His pioneering contributions to the geology of Pakistan include: (i) the first ever reconnaissance geological mapping of the 4500 sq.km. region between Swat and Indus rivers; (ii) discovery of rare Silurian/Devonian fossils in Swabi area; and (iii) discovery of the rare Nepheline Syenite (1965) and even rarer Carbonatite rocks (1967) at Koga in district Buner, KPK.
- As pointed out in the preceding paragraph, the petitioner worked for quite some time in Zambia, from the initial appointment as Process-Mineralogist, then elevated/advanced to progressively more important positions, reaching the highest geological position in the billion dollar mining conglomerate-ZCCM. There, by applying a combination of chemistry and mineralogy, he resolved numerous major production shutdown problems in copper/cobalt metallurgy. In ZCCM he managed a major capital project to establish computer aided 3D geological/mine modeling for four mines.
- In 1998, the petitioner moved to Canada, and distinguished himself as the only Pakistani/Muslim geoscientist to be amongst the winners of the international web-based ‘Challenge’, competition launched by Goldcorp of Toronto, Canada in 2000. His gold exploration proposal for Red Lake mine, probably the richest grade Gold Mine in the world, Ontario, Canada was judged worthy of an award of US$10000. He also received the Rouge River Keeper’s award for excellence in environmental stewardship in Ontario, Canada.
- Contrary to past practice of completely neglecting its mineral wealth, the petitioner assessed some realization on the part of Government for tapping such neglected field. Thus the petitioner returned to Pakistan in 2005, and he began working with several private and public clients. For instance, he worked with with M/s Shahzad International, Islamabad as Founder/COO of Global Mining Company (Private) Limited (GMC) from 2006 to 2010. Here, he coordinated work on several mineral properties, in different stages of development, with a view to develop green field prospects to the level of operating mines. These included two gold, one aquamarine, one ruby and one copper/gold prospect in Gilgit-Baltistan region. At the age of 76, he is an independent Consulting Geoscientist with international private business clientele including local and foreign investors in minerals of Pakistan with base and precious metals properties in Chitral, Dir, FATA, Gilgit-Baltistan and Chagai District of Balochistan. The petitioner has also provided consultancy services to Governments of the Punjab, Khyber Pakhtunkhwa (KP), FATA and the Defense Forces of Pakistan. For the Government of Punjab, the petitioner compiled an NI43-101 compliant Report on Chiniot and Rajoa Iron and associated metals deposits, and advised on re-estimation of coal deposits of the Salt Range, Kalabagh Iron ore deposits and on resource assessment of Copper and Aluminium/Titanium prospects of the Salt Range and Kalachitta range. For FATA he advised on establishment of a Mineral Trading Yard for marketing of mineral production of FATA in a secure and professional environment.
- For his subsequent submissions, it is pointed out that the petitioner has the distinction of being the focal person and principal author of KP Mineral Policy (KPMP) 2014. The petitioner is the life member of SEGMITE and National Geological Society of Pakistan, and has to his credit the status of internationally recognized “Qualified Person” as a Professional Geoscientist registered with the Association of Professional Geoscientists of Ontario (APGO), Canada.
…………………copy of detailed CV of the petitioner is annexed.
- By way of brief background, it is submitted that Pakistan on the eve of its independence inherited a rudimentary mining industry with cover of legal framework which was formulated in the 1930s by the erstwhile British rulers of the region. A pointer to such an assertion could be The Petroleum Act, 1934, which has been guiding star of all subsequent rules etc. and that too, with “cut and paste methods” from other jurisdictions. The country lagged behind in growing of its mining industry despite presence of highly qualified geoscientists who were not allowed to play their true role which could help formulate a viable policy and national vision for the same. Country’s bad luck had it that the mining or mining industry was never headed by a geoscientist or mining engineer rather such posts were monopolized by the establishment “baboos” with scant generalist knowledge.
- Without lamenting by delving in the past, suffice it to mention that the respondents for the first time in the whole history of the country came up with “National Mineral Policy 1995”. Judging it on past actions of the respondents, it was a significant achievement as it helped all the stake-holders of mineral resources to ponder on its potentials and limitations. National Mineral Policy of 1995 gave way to “National Mineral Policy 2013”.
……..copies of the two policies are annexures “A” & “B”.
- One of the major differences of the two policies is that when the first national policy was formulated in 1995, the Federation had dominant say in the subject. However, after the passing of 18th Amendment to the Constitution, that role has diluted by way of devolution of the subject to the federating units. The contents of “National Mineral Policy 2013” visualizes the inter se role of the federation and the federating units as under:
- “Minerals other than nuclear minerals and those occurring in special areas [Federally Administered Tribal Areas (FATA)], Islamabad Capital Territory (ICT) International Offshore Water Treaty (IOWT) are a provincial subject under the Constitution. Provincial Governments/federating units are responsible for regulation, detailed exploration, mineral development and safety concerns in these operations, whereas geological/geophysical survey and mapping, national and international coordination and formulation of national policies and plans are federal responsibilities. In line with Article172, the Federal and Provincial Governments jointly endorse this Policy, which provides for appropriate institutional arrangements, a regulatory framework, internationally competitive fiscal and regulatory regimes and a program to expand Pakistan’s geological database. This Policy document also emanates from the constitutional position laid down in Article 70 & 97.
The respective Government may, by notification in the official Gazette, make rules for grant of mineral concessions/titles in respect of any mineral falling in its domain.
- The provisions of this Policy clearly provide that continued focus of all activities and decision-making will be at provincial level while the Federation would provide requisite support and advice to the Provinces to take up the challenges of achieving sustainable benefits from development of mineral resources, specifically in connection with international investment in minerals of Pakistan.
- All federating units of the Islamic Republic of Pakistan commit to the minerals ownership structure and legislation in Pakistan as defined in the Constitution and this Policy”
In line with the above, it is submitted that KP is the only province of the federation which has come up with formulation of its own policy. The petitioner did contribute significantly in formulation of the same, and that role is acknowledged in the said policy itself.
……….copy of KPK Mineral Policy 2014 is annexed.
- Under these policies, the Government has emphasized that in implementing the mineral policy it will take into account international standards. Canadian National Instrument NI 43-101 is an example of such standards. One of such standards is to take into and give preference to geoscientists and mining engineers as Qualified Persons (QP) to have final say in the mineral exploration and exploitation industry. Qualified Person has been defined “as an individual who is an engineer or geoscientist with at least five years of experience in mineral exploration, mine development, mine operation or project assessment, has experience relevant to the subject matter of the project or report and is a member in good standing of a recognized professional association”.
- Now it is an established international practice that whenever there is a discovery of mineral made or announced, the details of such exploration to the public have to be disclosed through a report of a ‘Qualified Person’. If tomorrow there is some incorrect statement made by the QP, his/her professional credibility could be readily questioned. However, if there is a non-qualified high ranking person making any statement which is subsequently found to be untrue, he may get away with it by simply asserting that it was not his field. Then he may also be having the backing of similarly-placed other unqualified persons sitting on similar high positions ready to bail him out as well. Another cause of concern is that ignoring of professionals of geology and giving preference to persons not having relevant qualifications has generated frustrations amongst the geologists/geoscientists.
- To elucidate the foregoing assertion of the petitioner, it is submitted that recent announcement made at Chiniot on 11-02-2015 in front of the Prime Minister of Pakistan that there are huge deposits of Gold and Copper and this deposit was bigger than the Reko Diq of Baluchistan was merely a premature and untimely announcement. May be it was made to divert attention of people, or for the motive best known to the concerned authorities. There is no denying of the fact that there may be huge deposits of minerals at the Chiniot site but the percentage and volume and even presence of respective deposits is still not confirmed as the survey is still underway. This premature announcement, apparently for taking credit for past work of geoscientists and for unproven future accomplishments that may or may not materialize, will be detrimental to national interest and be a loss to every citizen of Pakistan. It is to be noted that once a credible discovery is announced, following the international standards, the potential investors the world over take notice and enquire with a view to investment. On the contrary, when announcement is made flouting the international standards it erodes the credibility and the mining investment industry considers it a scam of some kind and becomes cautious so far investment is concerned. Thus even a genuine discovery may subsequently remain coloured in suspicion.
- The geologists (Geoscientists) of Pakistan are professional people and have served the country well since it came into being. The important part of their profession is to locate and assess areas where there is a potential for mining of minerals. That area is then marked as mineable and further recommendations are made for mining of the same. There have been many discoveries in the past where Pakistan has benefited from availing services of these people to locate valuable minerals.
- In the past geologists have faced many problems and have been neglected domestically and favor has been given to international geologists over our own qualified people and this has seriously damaged the profession. Many have thus opted to go abroad to prove their abilities and are recognized internationally but ignored in their home country. It is a well-known practice in the Europe, America, Australia, even in developing countries like Zambia and many countries to give preference to their own nationals, for any job/service public or private but unfortunately this has not been the case here. Even otherwise, hiring of international consultants has resulted in paying heavy fees and has badly damaged the profession, confidence, and rights of the qualified and able nationals in the field.
- The Constitution of the Islamic Republic of Pakistan,1973, guarantees fundamental rights of all citizens, therefore, it is the responsibility of the State to protect those rights. The geoscientists do come within the ambit/fold of such fundamental rights. Geology has been introduced at the higher education level as a separate department and thousands of students are joining this profession by getting quality education from our own universities with high hopes of joining the profession and serve the country for unearthing its potential in the same field. In this behalf, they deserve special treatment at the hands of the respondents. Geoscientists are also ignored for the sake of people with strong political as well as bureaucratic connections even though they may not know even ABC of geology, as was the case in announcement of Chiniot discovery mentioned above.
- In the National Mineral Policy 2013, clause 20.4 states that international standards will be taken into account in its implementation. Khyber Pakhtunkhwa Mineral Policy 2014 also expresses KP Government intention to adapt international standards. Clause 20 of “National Mineral Policy 2013” is reproduced below:
“20. Implementation of National Mineral Policy
20.1 The respective Federal and Provincial Ministries/Departments will take all administrative measures and amendments to the relevant mining, fiscal and other laws to give full effect to the provisions of this Policy. This will be done mainly by making the appropriate amendments in the Regulation of Mines & Oilfields and Mineral Development (Government Control) Act, 1948 and related rules and regulations.
20.2 Mining companies presently operating in Pakistan can opt for the Policy terms; where mining companies have existing agreements with Federal Government or Provincial Government, if the mining company so elects, such Governments will concur to amend their agreements to bring the same in conformity with Policy.
20.3 The Federal Government/Provincial Government/federating units acknowledge that continuous evaluation and review is important for successful implementation of this Policy. In this regard, the Policy review meetings will be held twice a year. The mineral Wing of Ministry of Petroleum & Natural Resources will act as Secretariat for coordination with the federating units and issue periodic progress reports on the implementation of the Policy. A Committee comprising the following shall review/monitor implementation progress:-
Secretary, Ministry of Petroleum & Natural Resources …Chairman
Secretary, Ministry of State and Frontier Regions …Member
Chief secretaries of federating units …………Members
Director General (Minerals), M/o Petroleum & Natural Resources ………… Member/Secretary
20.4 In implementing this Policy the Government will take into account appropriate internationally established standards and Pakistan’s international commitments to sustainable development and trade agreements. Pakistan will promote Policy’s objectives both domestically and internationally, by working bilaterally and multilaterally with other countries and through international organizations, such as United Nations and other agencies. The Federal Government shall form a close working relationship with federating units, the private sector and other stakeholders in implementing the National Mineral Policy towards the successful and beneficial development of nation’s mineral resources”
- The quoted part from the National Mineral Policy 2013 does provide a mechanism for its implementation. However, since its formulation bureaucratic bottle-necks are not allowing its implementation, and Governments of the day i.e. the respondents are presenting it merely a decorative show piece.
- The matter could be viewed from another angle that the petitioner is absolutely not seeking any relief which is prohibited in any codified law or confronts the same. The petitioner is also not seeking the intervention of the hon’able High Court for any direction against the respondents for correction, amendment or additions in “National Mineral Policy 2013”. The petitioner is not praying any interference of the hon’able Court in the said policy. What the petitioner is asking is that the respondents who have formulated “National Mineral Policy 2013” be directed to implement it in its letter and spirit, and that too, only for the larger public interest.
- For the above, rights of the geologists are infringed and their job securities are at risk. There is a huge concern amongst the geoscientists that their future generations will be neglected as they themselves have been neglected in the past if government is not directed to consider giving them guarantee in the shape of implementing Government’s own policy and protecting their fundamental rights provided under the Constitution of Pakistan,1973.
- It is a fundamental right of the petitioner that he be treated in accordance with law and Constitution, and the petitioner is not seeking anything which is controversial or against the letter and spirit of the law of land. The petitioner simply asking the respondents through intervention of the hon’able Court the respondent’s “National Mineral Policy 2013” which is completely in accord with the law and fundamental rights guaranteed under the Constitution be implemented in its letter and spirit, and that too, at the earliest in the larger interest of the public at large.
- The petitioner has no other efficacious and speedy remedy except to knock at the door of the Hon’able High Court for implementation of “National Mineral Policy 2013” in the larger public interests in which the petitioner being citizen of this country has inalienable right to insist for its implementation.
- Even otherwise, policies are framed and formulated by the Governments so that the public at large get the maximum benefits out of the same. Precisely, for the same reasons, this petition is being filed not for the sake of any individual interest but for the public at large.
For what has been submitted above, it is humbly prayed that the Hon’able Court may graciously be pleased to accept this writ petition and declare, that:
- The elected Governments are required to implement policies which are formulated for the benefit of the public at large and “National Mineral Policy 2013” is one such policy and needs implementation in terms of clause 20 of the same policy, quoted above, in its letter and spirit.
- It be declared that there is no legal hitch or constitutional hindrance in implementation of the “National Mineral Policy 2013” on the part of the respondents, therefore, the respondents be directed to implement and act upon it in the larger national interest.
- Any other relief, which this Hon’able Court deems fit and proper in the peculiar circumstances of this case may kindly be awarded to the petitioner.
Zulfikar Khalid Maluka
Advocate Supreme Court of Pakistan
Pir Abdul Wahid
Advocate High Court