Fettered Sovereignty of Parliament #2: FI Bill 2020
Supreme court and learned counsels dressing the parliament in new clothes
It has been a while since I published anything there. Part of the reason is my muses are leaving, one by one. First, it was Reza Baqir. Now, Aamer Khan.
I was able to get two pieces published in The Profit about my favorite topic: real estate. The first one was related to the cover story. You can read it at Decoding the progress of Naya Pakistan Housing
The recent one was a cover story last week. You can read it at Pakistan is launching its first development REIT. Should you be interested?
I wanted to talk briefly, very briefly, about the Foreign Investment Bill 2022. The bill has been introduced and bulldozed through the parliament in the aftermath of Reko Diq saga __ to provide protection to Reko Diq investors and future foreign investors and not repeat the very expensive folly of Reko Diq.
There have been a few good threads on it so I suggest you go through them instead of me rehashing their arguments.
Thread 1
Thread 2
Thread 3
My piece begins here and it is about the sovereignty of parliament rather than the charade being carried out by everyone to state that parliament remains supreme.
To ensure that the bill/act is not struck down later by courts on account of being non-constitutional, a presidential reference was sent to Supreme Court seeking their opinion on the draft bill. Check the pedigree of the people representing various parties in the court. This is creme de la creme of the legal fraternity. And they are presenting before a five-member bench of the apex court.
The opinion of the court is being sought if the provisions of FI Bill 2022 limit the sovereignty of Parliament.
The court instead of reading the said provisions is relying on “We have also been informed and is [the] consensus of all the learned counsel in this matter” that the Parliament can repeal the entire bill i.e., the sovereignty of parliament remains unfettered.
The bill comprises 15 pages and it appears, none of the five members of the court bothered to read the bill. More than that, the creme de la creme conspired together to misguide the court. But we are giving too much credit to the counsels here. The court wanted to be misguided.
The court is citing the “precedent” of the 1992 Act and “appealing to the authority” of the learned counsel. It is doing everything except reading the FI Bill 2022.
I inquired on the internet about the court using appeal to authority (ironic that I am appealing to the authority of the internet to argue against the court appealing to the authority of learned counsels) and the reply I got is as follows:
a court will typically require that the expert's testimony be based on facts and evidence, rather than simply being an opinion or personal belief. In this way, a court can use "appeal to authority" as part of its decision-making process, but it will not blindly accept the authority's claims without considering all the evidence and arguments presented in the case.
I will assume that considering all the evidence includes reading the actual Act. This is what subsection 10 of section 3 of the act says
Thus, if the court had bothered to read section 3 and not rely on precedence or appeal to the authority of the learned counsels, it would have realized that true while the parliament can repeal the bill, it will not have any impact on the rights conferred to the investor. Thus, for all practical purposes, the sovereignty of parliament is fettered regardless of what the learned counsels say and if the court pretends to agree.
If there remained any doubts, those are completely removed if one reads subsection 3 of Section 14
So while the “letter of the law” will say that the Act can be repealed and the learned counsel and court can opine that the sovereignty of parliament remains unfettered, we know that as per the “spirit of the law”, the sovereignty of parliament is fettered under this Act as despite repealing the Act, the rights promised to the investor remain intact.
I am reminded that at the same time last year, another act i.e., SBP Amendment Act, was bulldozed through the parliament. I had written three pieces at the time on it. Not that it made an iota of a difference. I should have headlined those posts as Fettered Sovereignty of Parliament #1.
You can read them here: part 1, part 2, and part 3.
In reality, there is nothing to see here. Sovereignty lies with everyone except the Parliament.