Assessing the Legal Authority of the National Water Policy, 2018

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Ahmad Rafay Alam*

*The author is an environmental lawyer and partner at Saleem, Alam & Co. His email address is rafay@saleemalam.com

The document titled National Water Policy published by the Ministry of Water Resources, Government of Pakistan is reported to have been approved by the Council of Common Interests (“CCI”) in its meeting held on 24 April 2018. It was also reported that the CCI also signed a National Water Charter on the same date.

This is a legal analysis of the Water Policy and Water Charter. It is not concerned with the contents of these documents but instead with the legal authority under which they have been issued and operate. As such, this is a brief introduction to water-related law in the Indus Basin, an analysis of the place of water within the Federal governance structure of Pakistan, and an elaboration on the role of the CCI in regulating water-related issues. This analysis is of benefit as no policy – water related or otherwise – can be properly implemented unless it is backed by law. For example, exhortations to manage water in an integrated and holistic manner may not yield fruit if the existing Constitutional and legal structure regulating water does not permit such an approach.

The present Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) established a two-tier form of government, with (1) a Federation of Pakistan consisting of a President, Parliament (comprising of the National Assembly and Senate), Prime Minister and Supreme Court; and (2) provincial Federating Units with their own Governors, Provincial Assemblies, Chief Ministers and provincial High Courts. A third tier, sub-Provincial local governments, was made Constitutionally obligatory through the Constitution (Eighteenth Amendment) Act, 2010 (the “18th Amendment”). 1

The Constitution allocates law making powers between the Federation and Provinces. Subsequent to the 18th Amendment, Parliament can enact laws and exercise executive authority (i) over subjects enumerated in the Federal Legislative List in the Fourth Schedule to the Constitution; or (ii) concurrently with Provincial Assemblies for laws with respect to criminal laws, procedure and evidence; and (iii) for areas within Pakistan not included in any Province. 2 Provincial Assemblies, on the other hand, are Constitutionally empowered to pass laws and exercise executive powers over any subjects not enumerated in the Federal Legislative List. However, it is pointed out that the Constitution also allows the Provinces flexibility to request Parliament to enact legislation on any subject in the provincial domain. This is done by way of Article 144, which allows Provincial Assemblies to pass resolution requesting Parliament to enact laws on any provincial subjects. 3

Water is not enumerated in the Federal Legislative List. 4 In other words, the Constitutional responsibility to enact laws and exercise executive authority over the subject of water is vested in the Provinces, unless the Provinces request Parliament to enact a water-related legislation through exercise of Article 144 of the Constitution.

The “provincial nature” of water in Pakistan can be traced back to before Partition and the Government of India Act, 1919; when the subject of “water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power” was classified as a provincial subject. Water also remained a provincial subject under the subsequent Government of India Act, 1935 – which operated as the first constitution of the country until the adoption of the Constitution of the Islamic Republic of Pakistan in 1956, where it was again similarly classified as a provincial subject. Water was not enumerated in the Concurrent Legislative List found in the pre-18th Amendment Constitution and is not found in any of the entries of the Federal Legislative List of the post-18th Amendment Constitution. 5

Without any limiting provisions, this would imply each province would – by virtue of water’s historical entry as a provincial subject – be entitled to all the water supplies within its own boundaries, regardless of its impacts, on other riparian provinces. However, this is not the case. Even under the Government of India Act, 1935, sections 130-134 imposed certain restrictions upon the provinces in the matter of water. If any action taken or proposed action to be taken by one province affected or was likely to prejudicially affect the interests of another province or its inhabitants, the Government of the latter province could complain to the Governor-General. Thereupon, after appointing a commission of investigation, the Governor-General was empowered to make such order as he deemed proper under the matter. Such orders were binding on the provinces.

The Government of India Act, 1935 therefore recognized the principle that no province can be given an entirely free hand in respect of the common source of water, such as an inter-provincial river. 6 This principle has been followed through to the present Constitution.

The CCI, under the present Constitution, follows the model for resolving inter-provincial water complaints established by the Government of India Act, 1935. The CCI may receive complaints from the Federal or Provincial Governments “If the interests of any Province, the Federal Capital or the Federally Administered Tribal Areas, or any of the inhabitants whereof, in the water of any natural source of supply [or reservoir] 7 have been or are likely to be affected prejudicially” by an act, legislation or failure of any authority “with respect to the use and distribution or control of water from that source.” Upon receiving such a complaint, the CCI may request the President to appoint a commission, and may consider the report of such a commission in its decision on the complaint. 8

Sections 130-134 of the Government of India Act, 1935 were first invoked in 1941 with the establishment of the Indus Commission. The Commission was tasked with looking at the complaint of the Province of Sindh relating to certain irrigation projects constructed, being constructed or planned by the Government of Punjab on the River Indus and its tributaries. The Commission filed its report in 1943, and negotiations between the Provinces of Sindh and Punjab over its recommendations were cut short by the events of Partition in 1947. The provisions of the present Constitution in relation to inter-provincial water complaints were invoked at the 3rd meeting of the CCI held on 31 December 1976, where it was decided to set up a Commission “on division and sharing of water from the Indus River system.” 9 This Indus Water Commission, comprising the Chief Justice of Pakistan as Chairman and the Chief Justice of the four Provinces as members, was tasked with examining the issue of water apportionment amongst the Provinces and to submit its report within nine months. However, this Indus Water Commission was unable to submit its report within the time given to it, and remains unfiled.

The other critical function of the CCI is to “formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions”. 10 Water is not found in the Federal Legislative List at all. However, entry No. 3 of Part II of the Federal Legislative List does refer to the Water and Power Development Authority (“WAPDA”). WAPDA was originally established as the West Pakistan WAPDA under the West Pakistan Water and Power Development Authority Act, 1958 passed during the period of One Unit and reflecting the provincial nature of water. However, this legislation was renamed the Pakistan Water and Power Development Authority Act, 1958 by the Federal Adaptation of Laws Order, 1975. In any event, this Act confers onto WAPDA the power, amongst others, to prepare plans “for the development and utilization of water and power resources of Pakistan on a unified and multi-purpose basis.” 11 The CCI, with its power to formulate and regulate policies that relate to WAPDA, thus has some say in formulating and regulating policy “for the development and utilization” of water resources through the Authority.

In this backdrop, we may begin asking questions about the legal authority, if any, supporting the Water Policy and Water Charter.

The Water Policy, as made available to the public and on the website of the Ministry of Water Resources, 12 is a document signed by (i) the Deputy Chairman of the Planning Commission; (ii) Federal Minister for Energy (Power Division); (iii) Federal Minister for Water Resources; (iv) Secretary, Ministry of Planning, Development and Reform; (v) Secretary Irrigation, Government of Punjab; (vi) Secretary Irrigation, Government of Sindh; (vii) Chief Secretary, Government of Khyber Pakhtunkhwa; and (viii) Chief Secretary, Government of Balochistan. The Constitution, on the other hand, defines the CCI as comprising of the Prime Minister as Chairman, the Chief Minister of the Provinces as members and three other members from the Federal Government to be nominated by the Prime Minister.

On its face, the Water Policy appears to have been signed by persons other than the membership of the CCI. This immediately raises questions as to the official nature of this document. Even if it can be assumed the CCI has considered and approved the Water Policy, questions still remain whether the scope of the CCI’s Constitutional function to regulate and approve policies with respect to WAPDA confers on it the jurisdiction to approve a policy outside the remit of WAPDA, as the Water Policy is for the entire country. For example, can the Federal Government implement parts of the Water Policy that relate to delineation of crop ecological zones, when this is clearly a subject within the mandate of the agriculture and irrigation Departments of Provincial Governments?

The Water Charter, on the other hand, as made available to the public and on the website of the Ministry of Water Resources, 13 has been signed by the Prime Minister and four Chief Ministers, constituting a majority of the membership of the CCI. The text of the Water Charter does not reference the legal authority of the CCI to adopt it. The Charter is neither the outcome of a inter-provincial water complaint referred to the CCI nor a policy in relation to WAPDA. At best, the Water Charter can be seen as an agreement between the Prime Minister and four Chief Ministers.

What is the sanctity of an agreement of this nature? The CCI has, in the past, considered and approved the Indus Apportionment Accord in its 4th and 5th meetings held on 12 January 1991 and 21 March 1991. The Accord itself bears the date 16 March 1991 and was signed in Karachi by, amongst others, the four Chief Ministers (but not the Prime Minister). The Accord precipitated the establishment of the Indus River System Authority (“IRSA”), which was considered by the CCI in its 6th meeting held on 16 September 1991. Subsequently, in December 1991, Parliament enacted the Indus River System Authority Act, 1992 to implement the Accord. In this manner, the approval of the Accord can be argued to have led to the passing of the IRSA Act.

The Accord is neither a policy in relation to WAPDA nor a decision on a complaint in relation to provincial water resources, so one may raise questions on how it came to appear on the CCI’s agenda. Similarly, the preamble and text of the IRSA Act do not reference any exercise of Article 144 of the Constitution by the Provinces. It is therefore uncertain how Parliament could have passed the IRSA Act or can otherwise legislate on the subject of water, or the apportionment thereof, without being requested through resolutions passed by the Provincial Assemblies.

Regardless, could the Water Charter be the basis of legislation relating to water, as has been the case with the Indus Apportionment Accord? This depends on whether the signatures of the Prime Minister and four Chief Ministers amount to a valid agreement. It is pointed out that the Water Charter was neither presented before or discussed by the National Assembly or any Provincial Assembly, nor was it considered by the Federal or any of the Provincial Cabinets. This lack of democratic mandate is brought into sharp relief by the recent 2016 decision of the Supreme Court of Pakistan in Mustafa Impex vs. Federation of Pakistan and others. 14 In this case, the Court held that neither the Prime Minister nor Chief Ministers exclusively represent the Federal or Provincial Governments, respectively. The impact of this decision is that the Prime Minister or Chief Ministers are bound to run the affairs of government in consultation with their respective Cabinets.

In light of Mustafa Impex, it is unlikely the Water Charter will be considered a document its signatories had authority to enter into unless it can be shown that it was with the previous approval of their respective Federal and Provincial Cabinets.

While there may be legal questions regarding the Water Policy and Charter, what is certain is both represent consensus of political opinion that water is now a subject of primary national concern. Whilst this sentiment may be useful politically, basic legal questions regarding the legality of the Water Policy and Charter raised above should give pause for thought. The much lamented effectiveness – or lack thereof – of domestic policies depends, amongst other things, on the legal foundations upon which they rest. It’s no use, in the face of an increasingly worsening situation of national water scarcity, that politicians have reached a consensus when that consensus has weak Constitutional and legal backing.

The provincial nature of water in Pakistan’s Constitutional and governance structure should also be understood within the context of Pakistan – and the Sub-Continent’s – experience with Federalism. Pre-Partition political movements were mostly premised on the ideas of provincial autonomy; of devolution; and of local self-government independent of the priorities of Colonial Britain. What else was Mohammad Ali Jinnah’s exhortation that Sindh should be made independent of the Bombay Presidency, but a cry for Provincial autonomy?

Pre-Partition political aspirations had little success with the Government of India Acts of 1919 and 1935, as the Federal structure envisioned in both gave superiority to centralized Colonial governance through elaborate federal, provincial and concurrent legislative lists. Pakistan inherited the Government of India Act, 1935 as it’s first constitution and has built subsequent constitutions upon it. So while water has historically remained a provincial subject in all these documents, what has evolved in light of the 18th Amendment is a reordering of hierarchy between the Federation and the Provinces. The removal of the Concurrent Legislative List has curtailed the executive and legislative scope of Parliament and the Federation. The result, is a “cooperative federalism” 15 and not a top-down federalism. This, in turn, means the Provinces have a much more dynamic role to play in Pakistan’s Federation.

This historic context leads to the irresistible conclusion that any national water policy must be bottom-up with each Province developing its own water-related policy and the Federation, upon considering them following an exercise of Article 144, framing a national policy on their basis. This is important, as integrated water resource management can only be achieved with a holistic understanding of each Province’s individual water issues. Straying once into the text of the Water Policy can illustrate this point: The Policy gives importance to surface water use in agriculture; but such priorities do not exist in Baluchistan where irrigation water comes primarily from the aquifer. Meanwhile, the Water Policy does not address Baluchistan’s unique water characteristics in its chapter on Groundwater.

Integrated water management – one of the stated objectives of the Water Policy – is as much a Constitutional and legal question as it is an engineering, science or hydrological one. Under the present Constitution, integrated water management can be achieved, but only if Constitutionally mandated means are employed. But a priority such as this, at a time of increasing water scarcity – should be translated into reality by updating the laws and, where necessary, the Constitution, to provide for doing so.

References

1- Article 140-A of the Constitution provides “Each province shall, by law, establish a Local Government system and devolve political and financial responsibility and authority to the elected representatives of the Local Governments” (emphasis added). Prior to the 18th Amendment, the Constitution provided only for the “promotion of Local Government institutions composed of elected representatives” and for decentralization of government administration as principles of policy only.

2- Articles 97 and 142 of the Constitution.

3- Notable examples are the Seed Act, 1976 and National Disaster Management Act, 2010. In both cases, the Provincial Assemblies requested Parliament to pass a law regulating their subject matter.

4- Maritime shipping and navigation, the safety of shipping and the carriage of goods and passengers by sea are, however, enumerated in the Federal Legislative List.

5- In the pre-18th Amendment Constitution of 1973, both the Federation and Provinces had the powers to make laws and take executive action over subjects enumerated in the Concurrent Legislative List of its 4th The abolition of the Concurrent Legislative List was an integral part of the devolution of power envisaged by the 18th Amendment.

6- Report of the Indus Commission (Volume I), 1942, at p. 21, available at https://archive.org/details/in.ernet.dli.2015.3465

7- Inserted by the Constitution (Eighteenth Amendment) Act, 2010.

8- The Constitution also confers another responsibility on the CCI in relation to an aspect of water, namely hydropower. Article 161(2) provides that the net profit of a hydropower undertaking established or administered by the Federal Government shall be paid to the province in which the hydro-electric station is situated at a rate to be determined by the CCI.

9- Ahmed Mahmood Zahid, “Institutional Analysis of Council of Common Interests” (UNDP, 2013) t p. 20 available at http://www.pk.undp.org/content/dam/pakistan/docs/Democratic%20Governance/Federalism/CCI%20Manual%20(1).pdf .

10- Article 154(1) of the Constitution.

11- Section 8 of the Pakistan Water and Power Development Authority Act, 1958.

12- Available at http://mowr.gov.pk/wp-content/uploads/2018/06/National-Water-policy-2018-2.pdf

13- Ibid.

14- PLD 2016 Supreme Court 808.

15- The phrase was employed by the Lahore High Court in Syed Imran Ali Shah vs. Government of Pakistan, 2013 PLC (Service) 143.