Many things happen in Pakistan without Constitution, law: CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa Wednesday remarked that many things are done in Pakistan without the Constitution and law.

A three-member bench of the Supreme Court, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan, heard a seven-year-old suo motu case regarding fundraising of Diamer-Basha and Mohmand Dams.

The court sought the assistance of the federal government and Water and Power Development Authority (Wapda) over the matter of keeping the dams funds in a private bank for the purpose of mark-up.

On the last hearing held on September 11, the court had sought the assistance of former attorney generals on the funds collected for utilisation of project relating to construction of the dams.

The court had also issued a notice to the Auditor General for Pakistan, directing him either to appear in-person or nominate his representative for assisting the court.

Similarly, Additional Attorney General (AAG) Aamir Rehman had informed the court that the federal government as well as Wapda have filed a civil miscellaneous application (CMA) seeking transfer of funds collected for building the dams to them.

He had submitted before the court that under the supervision of Supreme Court, the State Bank had opened an account for the collection of funds for the construction of Diamer-Basha and Mohmand dams. The law officer had assured the court that the funds will be utilised for the purpose it was collected.

On Wednesday, former AG Khalid Javed and Auditor General appeared before the court. Additional Auditor General for Pakistan Ghufran Memon told the court that the Supreme Court cannot keep the amount of dams fund, adding that under the apex court order, the PM-CJP dams funds account was opened.

He further submitted that the Registrar of the apex court used to look after the SC account. He further submitted that the investigation so far conducted has revealed that there was no irregularity in the dams fund and mark-up.

The chief justice said that the title of this bank account was inappropriate, adding: “It has always been my practice that judicial decisions should not be given priority over the Constitution and law.”

Khalid Javed submitted that there was no objection to changing the name of the account. He further submitted that the funds so far collected should be utilised for the construction of dams instead of giving it to the government for launching any other project(s).

The State Bank of Pakistan’s legal adviser informed the court that at present the current balance amount of the dams fund was more than Rs23 billion, adding that an amount of Rs11 billion came to the fund while the mark-up on it was more than Rs12 billion.

The chief justice asked as to who pays the mark-up. The additional auditor general said that the mark-up was paid by the government through T-bills. The CJP questioned how and why the government was giving itself a mark-up. The AAG told the court that mark-up was paid on the amount used by the government.

Justice Isa asked as to whether the funds deposited in the account can be kept by the Supreme Court. At this, the AAG told the court that the dams fund should be given to Wapda through public account. The additional auditor general told the court that if the dams fund was transferred from private bank to public account, then no mark-up can be taken on the amount.

The chief justice asked him whether these funds can be kept in a private bank to get markup from the public account? The AAG said that he had never seen that in his 37 years of service.

Justice Isa said that when strange things are happening in the Supreme Court, no one objects. “However, we will not go by the Supreme Court order on the construction of dams.”During the hearing, Barrister Saad Rasool, counsel for Wapda, submitted before the court that since 2018, they have submitted around 19 implementation reports, summoned by the court’s implementation bench on construction of dams. The chief justice, however, asked the counsel under which jurisdiction, the court was seeking implementation reports on the construction of dams.

Saad Rasool replied that seeking implementation report was aimed to ensure its order to be implemented on construction of dams. Justice Isa, however, observed that nothing was mentioned in the Constitution regarding the implementation bench of the Supreme Court.

Saad Rasool replied that there was no bar on the constitution of such implementation bench as well. The chief justice said that many things happen in Pakistan without the Constitution and law.

Amicus curie Khalid Javed told the court that the concept of the implementation bench was propped up during the law & order situation of Karachi. The CJP said: “I had taken the oath of supremacy and implementation of the Constitution not of judicial decisions.”

Meanwhile, the court directed the federal government, Wapda and Auditor General for Pakistan to assist it as to whether the funds collected for the construction of dams could be kept in private bank for the purpose of mark-up or not and adjourned further hearing until Friday.