The Supreme Court of Pakistan Orders the construction of Dams

Date of Hearing: 4.7.2018

Court: Supreme Court of Pakistan

Judges: Mr. Justice Mian Saqib Nisar, Hcj

Mr. Justice Umar Ata Bandial

Mr. Justice Ijaz Ul Ahsan

Mr. Justice Munib Akhtar

Case Name:

• Barrister Zafarullah Khan Vs. Federation of Pakistan etc. Constitution Petition No.57 Of 2016

(Under Article 184(3) of the Constitution).

• CMA for amendment in Constitution Petition. C.M.A.No.681-K Of 2018 In Const.P.No.57 Of 2016 (Applicant for amendment of petition)
• Engineers Study Forum (Regd.), through its President Mian Fazal Ahmad Vs. Federation of

Pakistan, etc. C.R.P.NO.440 OF 2016 in C.M.A.NO.5135 of 2016 in C.R.P.142 of 2015 in Const.P.NO.104 of 2011 (On review of this Court’s order dated 24.8.2016 passed in C.M.A.No.5135/2016)

• Agha Qasim Raza Vs. Federation of Pakistan through Secretary Ministry of Water Islamabad

and others. Constitution Petition No.24 Of 2018 (Under Article 184(3) of the Constitution)

• In the matter regarding acute shortage of water supply in Karachi. Human Rights Case No.30998-S Of 2018 (Regarding shortage of water supply in Karachi)
• Application by Malik Abdul Latif Khokhar. Human Rights Case No.50363-P Of 2010 (In the matter regarding acute shortage of water supply in Karachi)
• Rana Ilamuddin Ghazi Vs. Federation of Pakistan, through Secretary Cabinet Division, Islamabad and others. Constitution Petition No.37 Of 2018 (Under Article 184(3) of the Constitution)
• Sutlej Ravi Water Forum through its Chairman Zia Shahid Vs. Federation of Pakistan through

Secretary Interior, Government of Pakistan, Islamabad. Constitution Petition No.38 Of 2018 (Under Article 184(3) of the Constitution)

Representatives of petitioners:

• Barrister Zafarullah Khan, ASC (In Const.P.57/2016)
• Khalid Ranjha, Sr. ASC (In Const.P.38/2018)
• Malik Abdul Latif Khokhar, ASC (In H.R.C.50363-P/2010)

Representatives of Federation:

• Khalid Jawed Khan, Attorney General for Pakistan

Syed Nayyar Abbas Rizvi, Addl.A.G.P. Assisted by: Barrister Asad Rahim Khan

Representatives of Provinces:

• Razzaq A. Mirza, Addl.A.G. Punjab

Ms. Sehar Chaudhry, Law Officer, Irrigation, Punjab

• Shehryar Qazi, Addl.A.G. Sindh

Mr. Jamal Mustafa Syed, Secy. Irrigation, Sindh

Mr. Khalid Mehmood, M.D. KWSB, Sindh

• Ayaz Swati, Addl.A.G. Balochistan
• Barrister Qasim Wadood, Addl.A.G. KPK

Representatives of LJCP:

• Muhammad Rahim Awan, Secretary

Representatives present on the Court’s Call:

• Shams-ul-Mulk, ex-Chairman WAPDA
• Zafar Mehmood, ex-Chairman WAPDA
• Mujeeb-ur-Rehman Pirzada, ASC

Representatives present on Court’s Notice:

• For M/o Planning & Development: Mr. Shoaib Ahmed Siddiqui, Secretary

Mr. Naseer Ahmed Jillani, Sr. Chief (Water)

Mr. Arshad Ali, Joint Secretary

• For M/o Water Resources: Mr. Shumail Ahmed Khawaja, Secretary

Syed Muhammad Mehar Ali Shah, Joint

Secretary/Commissioner Indus Water

• For M/o Finance: Mr. Arif Ahmed Khan, Secretary
• For M/o Climate Change: Mr. Yousaf Naseem Khokhar, Secretary
• For WAPDA: Lt. Gen. (R) Muzammil Hussain, Chairman

Mr. M. Babar, Deputy Director

Mr. Shahzad Asif, Director

The Chief Justice of Pakistan, Mian Saqib Nisar, gave the final order. He stated that the need for water reservoirs was not only expedient but also sine qua non for the survival of the people and the economy of Pakistan. He referred to the decisions of the Council of Common Interest and the ECNEC, both of which agreed that the Diamer Bhasha and the Mohmand Dams should be built by the Federal Government on an urgent basis. It was noted that all parties, the petitioners and those summoned by the court were unanimous in their agreement regarding this decision.

The chief justice further stated that since the right to life was a fundamental right and there could be no life without water, therefore, the establishment of water reservoirs, given the impending water crisis, was an issue of the existence of life, rather than a question pertinent to its mere quality. In terms of the provisions of art. 184(3) of the Constitution of Pakistan, read with art.9, as guardians of the fundamental rights of the people of Pakistan, the Supreme Court had the jurisdiction to issue necessary directions to the government for the practical enforcement of the fundamental right to life.

Therefore, the Federal and Provincial Governments, WAPDA and all the Executive Authorities in Pakistan, responsible for or having a connection to the building of the dams mentioned above, were directed to take all steps necessary for the commencement, construction and early completion of these dams. The court also ordered that a comprehensive report with detailed timelines and milestones was to be submitted to the court within three weeks by a committee which it formed in this decision (headed by the Chairman WAPDA and for the time being comprising experts and officials of the Federal and KPK Governments).

A fund was also ordered to be set up under art.78 of the Constitution, under the name of the registrar of the supreme court to collect funds donated by the citizens of Pakistan for the construction of these dams. The Court also made an appeal to Pakistanis to contribute towards this cause and specified that money from this fund would not be used for any other purpose, besides the construction of these dams and the utilization of these funds would be audited according to the directions of the Supreme  Court.

Another order was made by the Supreme Court on 11.07.2018 detailing the account in which the funds for these dams will be collected.

Date of Hearing: 11.07.2018

Case Name: CMA No.6155/2018 In Constitution Petition No.57/2016

(Advertisement by UBL and HBL regarding raising of Funds for Diamer Bhasha and Mohmand Dam by the government of Pakistan.)

The court noted that pursuant to its instructions, the State Bank of Pakistan had set up a bank account titled ‘Supreme Court of Pakistan – Diamer Bhasha & Mohmand Dams – Fund’. Donations could be made at all Branches of the State Bank of Pakistan, all Treasury Offices and Branches of National Bank of Pakistan as well as other Banks including Micro Finance Banks. Donations could be made in the form of cash, cheques, pay orders, demand drafts, prize bonds deposited either at the counters or through online transfers. The Banks receiving such donations were directed to provide stamped/signed receipts acknowledging the donations.

Branches of all banks receiving such donations were directed to display banners at their entrances stating that they will be accepting donations for the construction of these dams.  An IBAN number for this account was directed to be displayed on the websites of the State Bank and the Supreme Court of Pakistan. The court waived off additional charges for donations made through local credit/debit cards. The State Bank of Pakistan had even set up a toll-free helpline (021-111-723-273) to answer queries and receive complaints from donors. Subscribers of cellular companies (Mobilink (Jazz), Telenor, Zong and Ufone) could also make donations by dialling the code ‘8000’ which would result in an automatic deduction of Rs 10/-. All cellular companies were instructed to display the amount received by them on their websites, which would be transferred to the fund, on a daily basis. Instructions were also provided to enable branchless banking (ONMI Paisa, Easy Paisa etc) to help in the collection of funds as well. All such transfers were directed to be delivered into the fund within 30 minutes of the donation (for branchless banking and 48 hours for transfers made by credit/debit cards).

The Ministry of foreign Affairs was directed to enable Pakistani Missions abroad to be capable of receiving funds for this account and for transferring them into the account, in the State Bank of Pakistan.

The State Bank was ordered to communicate the amounts received by this account, to the Supreme Court, on an hourly basis.

The Ministry of Information and Broadcasting, in consultation with the State Bank of Pakistan, Pakistan Telecommunication Authority and Print & Electronic Media Regulatory Authority prepared an awareness campaign for electronic and print media, to be run by all electronic media houses (TV/Radio) as a public service message, free of cost. PEMRA was tasked with ensuring that this campaign received sufficient time for broadcast, during prime broadcasting hours to raise public awareness for the fund.

The Ministry of Law & Justice in consultation with Federal Board of Revenue was directed to promulgate an ordnance which ensured that all contributions to this fund would be exempted from taxes. Also, individuals making such contributions were to be exempt from investigations into the sources of funds utilized for making donations to this account.

The court clarified that it had not authorised any individual or group to collect donations for this fund.

A further hearing on the same matter was to be held on 30.07.2018.