Water, power and politics

How can we grow and prosper together? Is this question truly so difficult that we have yet to find a wise and effective answer?

In reality, our democratic and federal constitution already provides both the answer and the strategy for inclusive development. It goes even further, urging us all to be generous and extend a helping hand to our country's underdeveloped regions and people. Yet, we seem consumed by the relentless pursuit of self-interest, disregarding the common good and violating the fundamental ‘no-harm’ principle of development.

In my previous article, ‘Law of equitable management’ (March 5), I discussed the growing complaints regarding IRSA’s decisions on inter-provincial water distribution, which violate both the letter and spirit of the 1991 Accord as well as the principles of corporate governance -- principles that IRSA, as a corporate body, is obligated to uphold.

The 1991 Water Accord was an agreement among the four provinces to determine how the waters of the Indus River would be apportioned. The accord was ratified by the Council of Common Interests (CCI), which has exclusive jurisdiction over inter-provincial waters and was subsequently enacted. It was not a product of the federal government. However, the federal government now appears to have sidelined the CCI and taken over its powers and functions. Even CCI meetings, which are constitutionally required to be held every 90 days under Article 154, are not being convened.

The power struggle has been so intense that the CCI has not been treated well since its creation in 1973. Between 1973 and 2010, only 11 meetings were held over 37 years. The same pattern persisted even after the 18th Amendment, which mandated CCI meetings every 90 days. In the past three years alone, only three CCI meetings have been held since January 2022 -- far short of the 12 required -- even as pressing water issues demanded urgent resolution.

IRSA also appears to have overstepped its lawful bounds. Without the approval of the CCI, which has exclusive jurisdiction over inter-provincial waters, and despite serious objections from one of the original signatories of the accord, it has allocated new waters to the Six Canals Project. This decision has triggered widespread protests and marches across Sindh. People see ominous signs for their future on the horizon, fearing not only the destruction of the delta and the livelihoods of its inhabitants but also a severe water crisis affecting both urban and rural populations in Sindh. Drinking water, household consumption, commercial and industrial needs and food production all stand at risk.

This fear is not unfounded. The province is already struggling with water scarcity and a rapidly growing population. In the more than 70 years since independence, while the population of the rest of present-day Pakistan has increased sevenfold, Sindh’s population has surged fifteenfold, exacerbating social, economic and political challenges.

The UN Report on Water Development warns that by 2050, over 3.2 billion people will face acute water scarcity -- double the number in 2010. IRSA’s arbitrary diversion of Indus River water upstream, reducing supplies to the already water-scarce lower riparian areas, signals a grim future. Instead of water scarcity being equitably shared, it is being passed on to the last riparian, whose people will likely be among those 3.2 billion struggling to meet their basic water needs in 2050 -- let alone planning for future growth and prosperity.

These developments have revealed two key issues: one, IRSA, in its structure and organisation, is not designed as an equitable manager of a common resource with sequential benefits and is losing the trust of a federating unit that is also the lower riparian in water distribution.

And, two, that the CCI -- the constitutionally mandated body with exclusive jurisdiction over interprovincial waters -- is not being allowed to perform its functions, as its meetings are not convened for prolonged periods, even as pressing issues requiring its decisions continue to mount. According to Article 154 of the constitution, CCI meetings are required to be held every 90 days, yet this mandate is being ignored.

However, the IRSA Ordinance of 2024, which amends the IRSA Act of 1992, has further deviated from the letter and spirit of the 1991 Accord, the interprovincial nature of IRSA, and the principles of corporate governance. Since the ordinance has a short lifespan and has not been enacted by parliament, these amendments remain in limbo.

However, if enacted, the ordinance would transform IRSA from an interprovincial body into a federal agency. It would cease to be a collective decision-making body, and its chairmanship would no longer rotate among provinces annually. Instead, it would have a powerful chairman with a three-year term, appointed at the prime minister’s discretion.

This background analysis underscores the urgent need for changes in decision-making systems to ensure that water-related issues are addressed according to universally accepted principles of equitable management of a common resource, where the flow of benefits remains sequential.

In this spirit, five recommendations are proposed to improve the governance of water issues and align decision-making systems with best management practices in the broader interest of peaceful growth and prosperity, guided by the ‘no-harm’ doctrine of development.

One, the disaster unfolding in the delta region and coastal lands must be taken seriously, as it is destroying not only mangroves, birds and fish but also the lives and livelihoods of millions of people. The CCI should engage an internationally reputed agency to conduct a scientific study to determine how much water must flow from the Indus into the sea to prevent rising sea levels from submerging fertile lands and urban and rural settlements.

Two, just as corporate law mandates that shareholders -- the ultimate beneficiaries -- sit on a company’s board of directors to ensure the equitable management of common resources with sequential benefits, the chair of IRSA should always be held by the last riparian to ensure fair distribution of the Indus waters.

Three, the principle of natural justice that states that ‘No one can be a judge in their own cause’ must apply to IRSA. As the regulator and distributor of Indus waters among provinces, IRSA cannot be the sole arbiter of its own decisions. Therefore, an Indus Water Tribunal composed of qualified independent experts should be established to provide redress for any province that has serious grievances regarding IRSA’s decisions.

Four, to make the CCI more democratic and judicious, the three members appointed at the discretion of the prime minister should be from provinces other than that of the prime minister.

Finally, five: the CCI’s failure to meet as per the constitutional requirement under Article 154 is an unusual and serious issue, not a routine matter. This situation must be urgently addressed.

In the interest of fostering a cooperative federation that aims for shared growth and prosperity, and in the spirit of the ‘no-harm’ development approach, these recommendations would strengthen national cohesion, improve governance and ensure the equitable management of common resources with sequential benefits.

The writer designed the Board of Investment and the First Women Bank. He is the author of ‘Struggle between State & Society’, and can be reached at: smshah@alum.mit.edu