Governing Indus in silos

Is the period of hyperactive public interest in water shortage going to come to an end today? Cynics point to news reports that more has been spent on ads than has been raised through dam fund initiative. But few will deny that the issue came to occupy mainstream imagination in a way never seen before.

So, without judging (pun intended) the intent and achievements, let’s first summarize the consensus developed over the past one year. Yes, there is water shortage, and it has been caused as much by inefficient and wasteful consumption practices as by erratic weather patterns.

Broad consensus also fixes blame on agriculture for the inefficient use, which has pumped the irrigation system dry akin to squeezing a toothpaste tube with a dumper truck tire. Commercial bottlers have also been called to the stand too, for exploiting colonial era principles of “absolute dominion” and rule of “first capture” to abstract groundwater mercilessly, leaving little behind for future generations.

All the players on the poker table are watching closely if the reckoning will last beyond January 17th. It should. While the problems have been highlighted endlessly over the past year (twenty-one columns in these pages alone!), no consensus exists on the proposed solutions.

Much has already been said and written about the dam, so let’s shelve that debate for a future date (not unlike its inauguration). More important is the question of water governance law in the country and a mechanism for its benefits sharing.

In a land where no legal distinction exists between those who abstract water for commercial purposes and those for domestic, it is little surprise that consensus is also virtually absent on the way forward for inter-provinces water relations.

Writing in a policy brief for Jinnah Institute, Ahmed Rafay Alam, an expert on environmental law, notes that water governance has historically been a provincial subject since irrigation and drainage acts were enacted by the provinces in British India during 1870s.

History changed course when WAPDA was formed during the One Unit period. This resulted in de facto centralization of the subject; de facto because West Pakistan by itself represented one of two federating units. Further ambiguity was added by the 1973 constitution, which while never explicitly took water out of the provincial list, retained WAPDA with all its powers as a federal institution.

Abolishment of concurrent list with the 18th amendment has established full clarity so far as the constitutional law on water is concerned. The federation may only legislate on a provincial subject if and only if provinces pass resolutions requesting it to do so.

That’s so far as the law is concerned. But water is a tricky substance that respects no human drawn boundaries. As Ali T. Sheikh, CEO Lead Pakistan poetically put it in a recent sitting with BR Research, “basin is the only thing that binds the federating units together.”

True, the federation already has a role to play so far as adjudication of disputes between provinces is concerned. A water apportionment accord also exists between provinces, and IRSA, its dutybound patron.

But Rafay is of the opinion that in absence of any resolutions by the provinces to the effect, calls for integrated water management run counter to constitutional structure. Recall that last year, both executive and judicial branches issued policy frameworks on water governance with little regard to subject’s legal status.

But setting aside the existing legal framework, there can be no denying that challenges to water governance are transboundary; whether it’s the question of future dams, groundwater contamination, or surface water distribution. And provincial irrigation department simply do not live up to the task.

Take one example. Despite ever increasing reliance on groundwater across all sub sectors of water consumption, no province has been able to come up with a legislation or proposal on management of this disappearing resource. Groundwater reservoirs may offer a cheap substitute to mega dams for water storage, but in absence of any regulatory mechanism, is it so wrong for common folk to pin hopes on dams instead? At least no one can pump water out of a dam with a tube well and sell it in plastic containers!

Whether Pakistan’s water resources should be governed under a basin-wide management system is a complex subject and cannot be settled in this space. If National Water Policy or Islamabad Declaration represent overreach, provinces should register their protest by coming up with sound legislation on water governance.

If judicial overreach of past year manages to save Pakistan’s water resources from running dry, the unintended consequence should be greeted as a blessing. But for both things to not happen in the future, parliamentarians need to take up the baton, and now.