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Khurram Hussain
MAYBE this is a good time to recall the Reko Diq judgment delivered by one of the most exalted and hailed chief justices of the Supreme Court. Or should we recall the Dam Fund instead, along with threats to charge with treason those who dared to criticise the effort?
Remember that fiasco, run by a chief justice who probably relished the limelight more than any of his predecessors? Or maybe an article detailing a blow-by-blow account of how yet another chief justice became obsessed with tearing down a residential building on Sharea Faisal in Karachi, leaving the families who lived in it homeless and fighting to this day for compensation? How many remember how the same CJ who promised us that he would build a mega dam with funds donated by the public also became obsessed with shutting down the Punjab Kidney Liver Institute?
How many of us know what it takes to bring in mega investment in a mining project, or erect a large hospital providing specialised care for free, or how infrastructure financing actually works, or the process of compensating displaced affectees of government decisions is actually structured? How many of us realise how long this list of the follies and silliness of the post-lawyers’ movement judges actually gets?
I have lawyer friends who shrug this history off as if it is all par for the course, or nothing but a series of isolated moments during which some judges temporarily showed bad judgment. But I have a different reading. These are moments when the truth about the so-called ‘independent judiciary’ that emerged following the lawyers’ movement was revealed.
And what we saw was a judicial leadership more interested in interfering in executive decisions, second-guessing policymaking, disqualifying prime ministers on minute technicalities, arbitrarily setting the price of sugar or demanding that subsidies for natural gas be increased, running campaigns in favour of major dams even when there were strong apprehensions in at least two provinces about the negative effects of these structures, and so on in an endless train of ignorant decisions whose negative effects are still with us even if those who made these decisions have gone into comfortable retirement.
Consider the fallout from the Reko Diq judgment. No private foreign investor has been willing to acquire large stakes in Pakistan ever since, without first negotiating protections for themselves from Pakistan’s own laws, courts, tax authorities and payment constraints.
Since Pakistan, like many other Third World countries, cannot afford the costs of its own infrastructure requirements, and no foreign investor was willing to take exposure to such high-cost, long-term risk, the country had little choice but to fund its infrastructure from the Chinese in the mid-2010s. The Chinese first asked for the same protections for themselves before committing to anything. Not all of this can be laid at the doorstep of the Reko Diq judgment, but a significant amount most certainly can.
Of course, we all remember the protracted arbitration that cost Pakistan tens of millions of dollars, the consequent arbitral award of $6 billion, the scramble to renegotiate with Barrick Gold and re-enter into an agreement with them, only this time the deal would be placed beyond the reach of the Supreme Court altogether.
The fallout of that judgment on Pakistan’s investment environment was massive, but its impact was strongly felt only by those directly concerned with foreign investment, and therefore passed below the radar of the conversation in the country, which has always been heavily skewed towards debating the minutiae of the law, the gossip of the judges and breathless live coverage of court proceedings.
The economy was already hamstrung by earlier court decisions, from the days before the lawyers’ movement. One was the Steel Mills judgment, which halted the privatisation process. Second was the court’s scrapping a long-term LNG deal on allegations of corruption levelled in a newspaper. The latter decision left Pakistan’s energy sector gasping for fuel as vital stocks of indigenous natural gas had begun to decline precipitously in those years. Those with a memory will recall the gas shortages from 2010 to 2015.
Now understand this. In all of these cases, the court alleged corruption. In none of these cases was the court actually able to find any evidence of corruption. All the cases had a long-term fallout whose costs could easily be tallied in trillions of rupees. Yet there was no learning curve. As late as 2019, the court was still interfering in the new LNG deal the country finally managed to get after the fiasco in which the first one ended.
Pakistan got an independent judiciary after the lawyers’ movement. But what exactly did the judges do with this expanded power they now possessed? Did the common citizen’s experience of the judiciary improve as a result? Did backlogs clogging the courts come down? Did the time it takes to decide a case reduce? Did the number of cases that go into appeal come down? Is there any indicator which shows that the core business of the judiciary — the dispensation of justice as per the law — actually improved with the arrival of the independent judiciary?
Sadly, the answer is no. The independent judiciary of the post-lawyers’ movement days probably did more to hamstring Pakistan’s response to critical challenges, like arranging alternatives to dwindling stocks of indigenous natural gas or reforming or privatising state-owned enterprises, than any other force in the same time. All the time they mounted no significant effort to reform their own affairs to improve the experience of justice-seekers.
Today, many are expressing sorrow at the fact that the independence of this judiciary has been curbed. But what did these people expect would happen, after a decade and a half of rulings driven less by the law and more by spite, ignorance and ego?
The writer is a business and economy journalist.
khurram.husain@gmail.com
X: @khurramhusain
Published in Dawn, October 24th, 2024
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F. S. Aijazuddin
PERHAPS the inspiration came from milking the buffalo his father-in-law gave him. Or the hardships he endured during his training for the Olympics 2024, in which he won the gold medal for his record-breaking javelin throw. It is said that recently, when invited to be a motivational speaker at a school in Lahore, someone on his behalf demanded a fee of Rs50 lakhs.
Instant celebrities have just cause. In the 1960s, the British model Mandy-Rice Davies charged an exorbitant fee from a Sunday rag for her revelations about the Profumo scandal. Her justification? She needed to provide for her “predictably insecure future”.
Was that the rationale for the startling increase approved last year in the perquisites for Senate chairmen, past, present and future? Their benefits extend over nine pages and into the lifetime of the beneficiaries. Clearly, John F. Kennedy’s advice is lost on our legislators: “Ask not what your country can do for you — ask what you can do for your country.”
Milking our country is now a given. A former president is supposed to have told an incoming State Bank governor: “I am the president; therefore, understand that the State Bank is my bank.”
The fund provided no mechanism for refunds to subscribers.
A shameful example of this ‘your hand in the public pocket’ attitude has been the Diamer-Bhasha dam project, located on the River Indus between Kohistan and the Diamer district in Gilgit-Baltistan.
In 1998, prime minister Nawaz Sharif inaugurated the Diamer-Bhasha project, designed to generate 4,500 megawatts of electricity. It should have been completed in nine years. Ten years later, in 2018, unfinished, its cost has ballooned from an original Rs479 billion to Rs1,400bn.
Wapda (hitherto responsible for the construction of dams) warned that at least $12bn would be required to build Diamer-Bhasha dam — $7bn for power generation and another $5bn for infrastructure. The hilly terrain precludes any arterial irrigation canals.
In July 2018, the then chief justice ordered a national fund to be established to finance its construction. Two days later, the then prime minister added his PMO’s name to the CJ’s project. Commercial banks and cellular companies became the conduits to receive contributions from a gullible public.
Within six months, the dam fund rapidly accumulated $66.7 million. After July 2019, deposits dwindled to a trickle. The public was assured that the fund’s status would be “regularly updated” before the Supreme Court of Pakistan. As if the backlog of 43,800 cases was not burden enough, the Supreme Court constituted an implementation bench of five apex court judges. It did not examine the progress reports. All five judges of the bench have since retired and never been replaced.
Meanwhile, Wapda disbursed Rs115.9bn for land acquisition, and Pakistan signed a Rs442bn contract with China Power and FWO to execute the project. The billions spent on direct and indirect advertising has never been disclosed.
In October 2024, 26 years after its inauguration, the Supreme Court finally examined the fund’s status. It was told that the fund had received Rs23.7bn, of which the amount collected was Rs11.5bn. The mark-up earned on it paid to the apex court by the federal government was Rs.12.2bn. The court noted that the fund’s account constituted only 3.2 per cent of the money required to complete the dam.
Today, Wapda predicts the dam will involve a financial outlay of Rs1,406.5bn. It anticipates a completion date of February 2029. The Supreme Court has ordered the fund’s assets to be transferred to the public exchequer and bu-ried the moribund fund.
Are the court and the Prime Minister’s Office liable for misrepresentation, beca-use the public’s contributions have not been applied towards their original purpose? The fund provided no mechanism for refunds to subscribers. Their money has disappeared in the federal government’s bottomless well.
That the Chinese are now co-partners in the project’s implementation is reassuring. They know something about dams. After the gigantic Three Gorges Dam, China is planning a ‘mother of all dams’ — a 60,000 MW Motuo mega dam on the Yarlung Tsangpo River in Tibet. This river (known in India as the Brahmaputra) supplies water to an estimated 1.8bn people within China and in India, Bhutan, and Bangladesh.
Understandably, India has retaliated with a plan to build a 11,000 MW hydropower and reservoir project on the Siang River in Arunachal’s Upper Siang district. India fears that China’s mega dam will allow China, being in the upper riparian, to “curtail the river’s flow during the lean season and trigger artificial floods during the rainy season”.
Could China’s mega dam be our insurance against India’s arbitrary abrogation of the Indus Waters Treaty?
The writer is an author.
www.fsaijazuddin.pk
Published in Dawn, October 24th, 2024
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