Dams fund: fundamental constitutional questions

Pakistan is faced with a tremendous scarcity of water. Successive Governments failed to pay attention to planning and management of this invaluable natural resource for future human, agriculture and industrial consummation. It is now taking the form of a crisis.
Areas forming Pakistan were blessed with round the year running rivers supplemented by the epic monsoons. This generosity of the Providence was taken for granted and despite draught like situation after threats from India in 1947-48 only averted through the Indus Water Treaty (1960) after long negotiations, that ensured continuous water flows to Pakistan from 3 western rivers.
This arrangement emphasized building of reservoirs and efficient management of water resources. In recent years however, due to multiple factors, there emerged a pressure on water resources in the region. India under heavy demand and also due to its historic hatred towards Pakistan, particularly during the BJP Governments, built dams in the Occupied Jammu and Kashmir and also planned changing courses of rivers flowing into Pakistan. Pakistan has exclusive right over these waters. Folks inhabiting Pakistan belong to the same stock.
They cannot be deprived of their inalienable right to life by a Hinduvata mindset. Religions serve and protect humanity. Today, the Indus civilization and folklores of Ravi and Chenab and the romantic sagas of Sohni, Heer and Marvi of Shah Bhitai's Mehran weaved around the flowing rivers of Pakistan are terminally threatened by the forces of hate and greed. The land of saints, sadhus and Baba Nanak is being turned barren. Our posterity would find themselves paupers in culture. Unfortunately, India is instigating other states of the region.
There are now several areas in Pakistan where dearth of water is so immense that life is threatened and humans and animals are forced to drink from the same place. This apathy, nay criminal negligence of last 50 years or so cannot be justified at all, even if it may have multiple arguments, political, economic and regional. Nothing will be gained by criticizing anyone/all except exposing their incompetence and sycophancy and learning a lesson from the past to correct the future course.
The Supreme Court took suo motu notices of several water related issues across the country ranging from the drying up of holy Hindu religious site at Katas Raj to Manchar Lake in Sindh to Bhagani and Bolan water shortage in Baluchistan province. But most importantly, it was the suo motu notice for building of dams, Mohmand-Basha and creation of a fund for that purpose. A fund is: the money or asset kept for specific purpose. This fund was created through a judicial order. Fund raising events were arranged in England and at some other places.
In a number of cases, parties were directed to deposit/contribute towards the Fund. Campaigns were run on TV channels. A private organization was launched overnight alluding to the statements of the (former) Chief Justice and the Prime Minister. None questioned sincerity of purpose or nobility of the cause. Nobody raised the question of the constitutional of validity of the Dams Fund and its collection by the Supreme Court or a private organization or individuals. But it is in the very nature of public acts that they cannot avoid public gaze and scrutiny.
Two fundamental constitutional questions thus arise. Whether in view of Article 78(2) (b) and other provisions of the Constitution, the Supreme Court can collect, receive and keep money for building dam(s)? Secondly, whether a private organization or an individual can collect funds for public projects like dam(s) and organize fund-raisers locally or aboard?
Almost all constitutions contain elaborate provisions for public finance. State collects taxes and other moneys from public and expends on public projects. The raising of money through taxes or other means requires a constitutional or legal authority. Collection of money from public by any branch of the Government, in any form, has to be authorized by the law or the Constitution.
The collected amounts are then transferred to two notional kitties, if you may call it, i.e. Consolidated Fund and/or Public Account. There are detailed checks over these kitties. Only through the keys provided by the law, money goes out of either of the kitty. The doorkeeper of these kitties is Parliament. A long history and struggle is enshrined behind these provisions now contained in our Constitution. There is a difference between a fund, tax and fee.
Law reports are full of cases fought over the definitions and meanings of these words. The important point however is that no money can be collected in the name of state and kept in a private account. In the EOBI fund case, the former Chief Justice recognized that the contribution to the workers welfare fund was not a tax though it had the attributes of tax but it could only be levied or increased by law.
Thus it confirms the legal position that no fund can be generated for public purposes except with the authority of law. Article 78 (2) of the Constitution provides that any moneys received or deposited with the Supreme Court or any other court are to be credited to the Public Account of the Federation.
Unlike Article 266 of the Indian Constitution, clause (2) (b) of Article 78 is an addition in our Constitution. The words received, deposited and Federation are relevant. The possibility of receiving any amount in cash is also envisaged by the said clause for which a receipt would be given to the contributors. Once money goes into the Public Account of the Federation, depositors and contributors lose power over the amount. No restriction can be placed over it. Public fund raising does not exclude the possibility of cash contributions for which apparently a mechanism is needed to avoid pilferage.
The Supreme Court has made its contribution to awaken Government(s) and people in slumber. It is high time for the elected Government to come forward and take the ownership and responsibility. Fund raising programs, if at all necessary, should be conducted by the Federal Government and no cash contribution be allowed in the absence of a foolproof system. (The writer is Advocate Supreme Court and a former Additional Attorney-General for Pakistan)