The Attorney General for Pakistan has supported the current water apportionment formula adopted by Indus Water River System Authority (Irsa) keeping in view available water. These recommendations were prepared by the Attorney General, after due consultation with the provinces, Irsa and going through available official record. The report will be discussed by the Council of Common Interests (CCI) which is scheduled to meet on June 17, 2019 with Prime Minister Imran Khan in the chair.
On May 27, 2018, the Council of Common Interests (CCI) had constituted a committee headed by the Attorney General for Pakistan and comprising one representative from each province. The committee was mandated to look into the current issue of availability of water and its distribution in the country and present its recommendations for consideration of the CCI. The committee was authorised to also consult the record of proceedings that resulted in approving the Water Accord 1991.
The committee convened two meetings i.e. on November 15, 2018 and December 4, 2018 and consulted all the stakeholders besides going through the available record.
According to the analysis and recommendations of Attorney General for Pakistan, the Water Accord was a historic achievement, after several decades of failed attempt at developing a formula for distribution that was acceptable to all federating units. But the Water Accord also contains within its provisions problems that can frustrate it.
The total surface water available in the country in 1991 that could be distributed was over 102 MAF but the Water Accord apportioned water on the presumed capacity of over 114 MAF, thereby selling a conscious target for the federation to enhance storage capacity. Unfortunately, no real effort was made to enhance storage capacity and new large storage facilities or reservoirs have been made since 1991. In fact, overall distributable volume of water has gone below 102 MAF owning to silting of major water reservoirs. The key problem is that the Water Accord grants volumes of water to provinces that is not even available in the system.
Accordingly, Sindh's claim that water apportioned according to para of the Water and Accord (which distributes water on the presumption of 114 MAF read with para (a) & (b) and the CCI's decision of September 16, 2991 is correct in law. Punjab's contention, on the other hand, is based on a correct assessment of the factual position, but it ignores specific provisions of the Water Accord. Accordingly, it is this very clash of law and logic that has led to creation of this committee.
According to the recommendations, the committee headed by Attorney General bears a heavy burden, for if this issue is not resolved it has the potential of becoming a serious issue in the continued functioning of the federation. The rapidly increasing population is placing an extraordinary burden on all resources, but none more so than water. Unless handled prudently, the water issue can lead to political discord and ecological degradation.
All provinces agree that the sanctity of the Water Accord, arrived at through consensus after long tedious negotiations, be maintained and that no formula outside the parameters laid down in the Water Accord (which includes the decision of September 16, 1991) should be adopted. However, controversy persists between Punjab and Sindh upon the issue of sharing of water during shortages with little flexibility displayed by both provinces.
The analysis and recommendations of Attorney General suggest that the principle of law is that a document has to be read as a whole and that if any provision relates to, or is qualified by any other provision of the same document then the said qualification has to be given a meaning.
It is evident that the real problem impeding the implementation of the 1991 Accord lies on the reading of para 2 and para 14 (a) & (b). Para 2 in fact in the presumption that the available water in the Accord is 114.35 MAF and calculation in Para 2 is made on the assumption. It may, however, be stated that the said assumption in Para 2 has never been achieved so far. Consequently, Punjab maintains that till the availability of 114.25 MAF, the available water should be apportioned among provinces on the basis of 1977-82 'historic uses" (102.72 MAF) as per Para (14(b) of the Accord. On the other hand, Sindh firmly sticks to its view that the apportionment of water among provinces, under all circumstances, must take place as per Para 2 read with Para 14(a) & (b) of the Accord and further read with the CCI decision contained in the minutes of September 16, 1991 where the 10 day average system wise allocation was determined, which has since become a part of the Accord. Sindh further disputes that there is shortage of water and maintains that downstream low availability of water is mainly due to water losses and theft upstream. As to KPK and Balochistan, Punjab maintains that those provinces should be exempted from any reduction in their share of water.
Meanwhile, water is apportioned as per the three tier formula adopted by Irsa. This formula conforms to Punjab's interpretation of the Water Accord but is opposed by Sindh thus as a biased decision.
It is therefore important to analyse the Water Accord and to interpret it so as to come to an equitable formula, remaining within the Accord and to read as it is, rather than importing anything from beyond the Accord.
Para 2 of the Water Accord states, that all the parties have accepted the 'distributional principles'. This principle is given in the Accord that there would be an assumed flow of 114.35 MAF and that it was on the basis, that the requirement and distribution was given to each province for the Kharif and Rabi periods. The important thing that needs to be seen is that Para 2 only gives a principle as mentioned in the said clause. The figures cannot be exact, but by giving the figures, with the assumed flow of 114.35 MAF, a ratio of what has to be distributed can be worked out from the actual flow during that period. The parties to the Accord did realize this, as such clause 14 was introduced in the Accord. It is in Para 14(a) of the Accord that ten daily basis would be separately worked out and consequently 14(b) says that the "average system uses for the period 1977-82 would form the guidelines for future regulation pattern," and further states "these ten daily uses would be adjusted pro-rata to correspond to the indicated seasonal allocations...... The question is, what do the words "adjusted pro-rata" read with the words "ten daily uses" mean this will be analysed hereafter.