News Analysis: Saqib Nisar’s dam fund, an exercise in judicial overreach

KARACHI: Former chief justice of Pakistan Saqib Nisar in his tenure gave several controversial verdicts. He, beyond his authority and power, initiated unnecessary suo motu actions and also intervened in disputed matters, which are still haunting him. After his retirement, the Supreme Court quashed those decisions.

But instead of acknowledging his mistakes, the former CJP is defending his actions and initiatives. Recently, during a religious event, he was defending his initiative of collecting funds for the construction of a dam. He proudly mentioned how the dam fund that he left in the account increased from Rs10 billion to Rs17 billion. It means he collected funds from the public showing them a dream about the construction of a dam, and later he invested the amount in the government T-bills, and this way the funds rose to Rs17 billion through interest collected on it. And Saqib Nisar is feeling proud of this achievement. However, the apex court judges see this initiative as a wrong judicial precedent.

Recently, on April 7, Supreme Court judge Justice Athar Minallah wrote in his detailed note that there are some incidents that should have been given priority under Article 184-3 of the Constitution. But, he said, instead of providing protection to vulnerable people, Article 184-3 was used to justify the removal of two prime ministers and overthrow of the government by the army. The Steel Mills and Reko Diq cases were also heard under Article 184-3 and these cases were viewed by the court as overstepping the bounds and interfering in the domain of economic policies of the state.

Similarly, the collection of funds under Article 184-3 and the issue of building dams also raised public concerns. In addition, Justice Mansoor Ali Shah on March 27 in his note quoted a paragraph from the book authored by political scientist and legal scholar Yasir Qureshi criticising the unlimited discretionary powers of the CJP. In comments on Justice Saqib Nisar’s use of these powers as chief justice, it has been written that Justice Saqib Nisar interfered in the administrative affairs of the government by using suo motu authority as chief justice to an extent that was never seen before. He [Saqib Nisar] himself decided to solve all the social and economic problems of the country, which included water supply, milk production, corruption, hospital management, education and population control.

In the first three months of 2018, CJP Saqib Nisar took 30 suo motu notices on the basis of articles published in newspapers, headlines of news channels or social media posts. Once, he took suo motu notice of a photo which went viral on social media, in which a funeral was being taken through a narrow street where sewerage water had accumulated. During hearing suo moto cases, he used to summon civil servants to court to insult them, to comment on mismanagement and issue orders. Perhaps, the most controversial example of his suo motu action was his order to build a dam to solve the country’s water problem, and then he established a multi-billion dam fund.

After then, orders were issued for extensive promotion of the Dam Fund through television and newspaper articles. Even convicts in various cases were ordered to deposit money to the Dam Fund. Outside the court, then CJP Nisar donned the guise of a government inspector and international fundraiser.

Sometimes he would visit hospitals and schools and sometimes he would inspect water filter plants, and news channels’ cameramen accompanied him during such visits.

Now, some voices within the Supreme Court have been commenting on Nisar’s Dam Fund and other actions. The fund was created in July 2018. However, an interesting point to note is that the decision to set up the Dam Fund was given by a four-member bench, headed by Justice Saqib Nisar, and the bench comprised incumbent Chief Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Munib Akhtar. However only Nisar’s name surfaces whenever the Dam Fund is talked about and only the former chief justice is criticised for establishing the fund, whereas the decision was unanimously given by the four judges.

It was even written in the order that the court was instructing that no authority or department would question the source of money deposited in the Dam Fund and the utilisation of the fund would be conditional on an audit on directions of the Supreme Court.

Justice Saqib Nisar, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Munib Akhtar had unanimously decreed that if someone deposited money in the Dam Fund, they would not be asked whether that money had been earned through lawful means or unlawful means.

Later, then prime minister Imran Khan became part of the Dam Fund and campaigned for it alongside former chief justice Nisar, just like he is creating expectations among the public today that when he came into power, the overseas Pakistanis would remit billions of dollars to the country, after which the economy would be out of the crisis. Like that, Khan was appealing for donations for the Dam Fund in those days. He also appealed to the Pakistanis living abroad to donate money for the Dam Fund. Not only Imran Khan was involved in the campaign, but also leaders of the Pakistan Tehreek-e-Insaf would accompany Saqib Nisar in his foreign fundraising visits.

At that time, Justice Saqib Nisar said the campaign for dams had intensified in Pakistan and nobody could stop the dam from being built. In September 2018, in an informal conversation with journalists, he even said that he would himself guard the dam after his retirement and even if he would have to live in a shack near the dam, he would do so. However, he did no such nothing.

During that time, it was repeatedly said at various forums, including Geo News show Aaj Shahzeb Khanzada Kay Saath, that a dam worth more than Rs1,400 billion could not be constructed by mere public donations. Nevertheless, after 2018, the Supreme Court and the government together continued making efforts to build a dam. Appeals were made to the people to donate money for the fund and transmissions were broadcast on television channels for the purpose. Seminars and conferences were also organised in the country and abroad for the dam.

Justice Saqib Nisar continued making foreign tours and giving interviews on television. Even salaries of government employees were deducted for the Dam Fund. In addition to these, the Supreme Court also devised a unique way to increase money in the Dam Fund as it started imposing fines on suspects in various cases and they were ordered to deposit the amount of the fine to the Dam Fund.

However, on the matter differences were also seen among judges of the Supreme Court. During a hearing in 2018, Justice Gulzar Ahmed told the lawyer of a suspect that the bench was imposing a fine of Rs50,000 on his client. He told the counsel to tell his client to deposit the amount in the Dam Fund. However, another judge on the bench, Justice Faez Isa, differed with Justice Gulzar Ahmed and stated that the amount of the fine be given to the Edhi Foundation instead of the Dam Fund. To this, Justice Gulzar ordered payment of the fine to the Edhi Foundation.

Another interesting revelation made during the Dam Fund campaign was that free advertisements for the fund were broadcast on television channels which were worth more than the amount which had been collected in the fund.

On a hearing on January 9, 2019, the State Bank governor told the court that so far Rs9.1 billion had been collected in the Dam Fund and the money had been received from more than 50 countries. Praising the media, the attorney general informed the court that television channels were running advertisements for promoting the Dam Fund and so far advertisements worth Rs13 billion had been broadcast free of charge, which meant that the cost of ad campaign for the Dam Fund had exceeded the amount collected in the fund.

Then, Justice Saqib Nisar retired and eventually all the clamour related to the dam disappeared. In August 2021, the ministry for water resources submitted a written response to the National Assembly related to the Dam Fund, according to which more than Rs12.934 billion had been deposited in the Dam Fund and no amount from the fund had been released to Wapda.

Between June 18, 2020, and August 27, 2020, the amount in the Dam Fund was used to invest in the treasury bills for a total of six times. Over Rs12.934 billion were invested in the treasury bills.

The funds in the accounts of the Diamer-Bhasha Dam and Mohmand Dam were only Rs799,358, which meant that the amount required for building a dam could not be collected and whatever money that had been collected was invested and not a single penny from it was spent for the dam. However, today former chief justice Saqib Nisar has been taking the credit for the profit of a few billion rupees against the Dam Fund.