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Tuesday August 16, 2022

All glam, no dam

November 27, 2021

The writer is a lawyer.

In February of this year, I filed a request for information under the Right of Access to Information Act. It had been close to two years since the then chief justice of Pakistan had set up the Diamer Bhasha and Mohmand Dams Fund. After months of telethons, endorsements by the prime minister, mandatory deductions from salaries, globetrotting fundraising, advertising, and thunderous threats of treason, the page boasted a ‘grand total’ of 12.9 billion rupees – less than one percent of the projected cost.

Back in 2018, the Supreme Court directed the State Bank to submit an hourly report on funds raised. But in February of 2021, the available balance hadn’t been updated for just under half a year. The last update, as of August of 2020, murmured that a hundred million rupees had been invested in three-month market treasury bills, set to mature in November of that year.

The request, addressed to the registrar of the Supreme Court, sought answers to a few basic questions. First, what was the latest with the fund? How much had been raised, and where was it? Second, from behind the bench in Courtroom Number One, CJ Saqib Nisar had pronounced that the account would be set up “for the sole purpose of construction of the aforementioned Dams”. But a more relaxed Retired Justice Nisar, sitting cross-legged at the Lahore Literary Festival had confided that “this money was never intended to be used 100 percent for building”, and that a component was “to create awareness”. So, which was it?

Four days later, I received my request for information back with the following note scribbled on the left margin: “Correspondence through post cannot be entertained as per Order 7 Rule 5 of the Supreme Court Rules, 1980. Hence, if approved may be returned to the Applicant.” The rule requires a “party” to “submit plaints, petitions, appeals and other documents” in person. For all the nostalgia around the personalised feel of a handwritten note, this one was as bizarre as it was anticlimactic.

I won’t bore you with the technicalities of my response, but a request for information under the Right of Access to Information Act can very much be sent by post. Also, it’s hard to argue that you’re a ‘party’ when you’re a semi-invested citizen outside of court proceedings, hoping to figure out what happened to that ‘Dam’ that you texted to 8000.

As much as I’d like to tell you that I sent all this back immediately, it just kind of fell by the wayside. But then, this month, the former chief justice again appeared to assure donors that the Dam Fund was “in safe hands”, and that he and his “team” were guarding it. That was enough impetus to finally send in a response, with an updated request for information. More on that, pending an actual response.

In any case, as it happens, the delay didn’t change much. There is now a spike in the graph back in April, but nothing since. That spike may suggest the maturity of a T-Bill with a longer maturity date, but it’s unclear. The table remains untouched. The State Bank’s portal leads to dead pages. It’s all still a bit of a mystery.

In fact, even after all the discussion about the Dam Fund, there’s quite a bit that is quite unclear. There has, of course, been much discussion about how dam-building doesn’t figure anywhere in a judge’s job description. And about all the backlogged cases just waiting to spill-forth, which could use some attention too. And about the propriety of demanding not-so-voluntary contributions as part of court proceedings. And even about whether or not the dams are the real solution to the problem.

Which is to say that there’s been a lot of talk about ‘why’ there is a dam fund. But there has been a lot less about ‘what’ the Dam Fund is. Who manages the fund? How is the retired chief justice still ‘guarding’ it? Who are the members of the ‘team’ that helps him do this? Who gets to decide what will happen to the money? Is it the federal government? Is it the Supreme Court?

To find possible answers, we turn – as always – to the constitution. Article 78 tells us what happens to money that flows to both the federal government and the Supreme Court. Think of the money as falling into two broad categories. The first consists of revenues, and money related to loans. This is the Federal Consolidated Fund. All other money goes to the Public Account. This second category includes money “received by or on behalf of” the federal government, as well as all money “received by or deposited with” the Supreme Court. “Received by”, “on behalf of”, and “deposited with” are all great ingredients for a deliciously devious MCQ and, frankly, we don’t have much to go by in terms of distinguishing them. Particularly in this case, where the fund has been ordered by the Supreme Court but will presumably go to the federal government.

We don’t know which of the two the fund is supposed to meet, but we do know that the money is, indeed, supposed to go to the Public Account. There’s a Finance Division circular from July 5, 2018, that says so. It also says that the Dam Fund is a ‘Special Deposit Fund’, for ‘development’ purposes, the accounts of which shall be maintained by the accountant general, and which shall be ‘administered’ by the registrar of the Supreme Court.

All this is important because of Article 79. Under the constitution, the Public Account is to be regulated by the Public Finance Management Act. That law basically says that you can call the fund whatever you like – whether it’s the Supreme Court’s fund or the Chief Justice’s Fund or the PM-CJ’s Fund – but that doesn’t mean the person or institution that it’s named after gets to decide everything that happens to it.

There are, for instance, procedures for withdrawal of money from that account. Any use of money, which would arguably include investment into T-bills, would have to follow that procedure. If there is an administrative component that truly funded the former CJ’s travels as part of fundraising, that would also constitute ‘use’. And there are also principles related to money that has been set aside for a particular purpose. Whether or not awareness raising or travelling for awareness raising even falls within that is another question.

And all of these questions fall on the shoulders of the Principal Accounting Officer. If, based on the Finance Division’s circular, that is the registrar of the Supreme Court, then there are further questions. The registrar only has such powers as have been granted under the Supreme Court Rules. How those powers cover the administration of such an account is another question. If it is someone else, then who?

Perhaps there are simple answers to all these questions. Or maybe not. In any case, why should donors have to guess and hope? Why should anyone have to file a right to information request, and hand deliver it in person for the custodians of the account to realise that for a lot of people who paid a lot of money, a little information would really help?

And for all the attention the former chief justice has been receiving, these are no longer matters for him to necessarily have to answer. It is no longer his place to be ‘guarding’ the fund. The fund must be regulated by law, not by a top-secret ‘team’ that no one can identify.

Perhaps the eventual response to the request for information will help. Or maybe it won’t. But one thing’s clear: there is someone out there who really needs to tell everyone exactly what is going on.

Email: salaar.khan@columbia.edu

Twitter: @brainmasalaar

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