Prime Minister Shahbaz Sharif had to withdraw the notification for the appointment of Zafar Mahmood, a retired BS-22 bureaucrat and pro-Kalabagh Dam expert, as a non-member chairman of the Indus River System Authority (Irsa) following a strong reaction from Sindh given its major stakes in water distribution.

Post-1947, irrigation water was allocated in the country through ad hoc arrangements. Following several commissions/committees, the four provinces sat together and agreed to apportion the waters of the Indus River system under the Water Apportionment Accord 1991 (WAA). The provinces’ consent also led to the establishment of the Indus River System Authority (Irsa) under the Irsa Act 1992.

Recently, the incumbent Irsa Chairman, Akhtar Hameed Mengal, sent a draft amendment of the Act to the Ministry of Water Resources, which the caretaker federal cabinet approved. However, the outgoing president, Dr Arif Alvi, didn’t sign the ordinance, which was returned to the government unsigned. This writer tried to reach Dr Alvi to find out whether he gave observations on the ordinance, but he didn’t respond.

The federal government is said to have presented the ordinance to the president, and after 10 days, it was deemed to have become law. The course adopted by the Irsa chairman — who represents Balochistan in the Irsa — was unjustified as the provinces, Council of Common Interests (CCI), and parliament had been bypassed in the decision making.

‘Caretakers are not mandated/empowered to make such decisions on contentious issues’

According to former advocate general Sindh, Zamir Ghumrothe, WAA is the parent of the Irsa Act because the provinces had authorised the federal government to create a structure to regulate interprovincial water distribution — that’s how the Irsa was established under the WAA. So, any amendment to this Act can only be made once provinces are taken on board and the CCI approves with consensus.

“What the caretaker federal government has done to amend the Act unilaterally is patently illegal. Caretakers are not mandated/empowered to make such decisions on contentious issues,” Mr Ghumro says.

As a federal body, the Irsa has been functioning as a water regulator with limited scope, regulating interprovincial water distribution as mandated by the WAA. Besides provincial members, a federal government representative is also a member of the Irsa. Under the Irsa Act 1992, the post of chairman is rotated among provinces annually.

But a simple reading of the ordinance shows it has attempted to alter the structure of the Irsa. It created a new post of vice chairman for the provinces as it delegated authority to the federal government to appoint a non-member (a serving or retired federal government BS-22 employee) as chairman of the Irsa with authority to exercise all sorts of autonomy through an expert committee.

The chairman is supposed to decide on any question on water whereas, under the Irsa Act 1992, a reference could be filed before the CCI by provinces if aggrieved by a decision. The CCI is constitutionally mandated to decide water issues with consensus.

What necessitated the caretaker government to amend the 1992 Act and undermine existing countrywide water management is anybody’s guess. When this amendment was planned, Sindh caretaker irrigation minister, Ishwar Lal, wrote a letter to the then-premier on Feb 2, informing him that after the 18th amendment, “water is neither a federal nor a provincial subject as it falls under the domain of the CCI which is the highest constitutional body to prevent, manage, or resolve intra-federal conflicts and issues on the basis of consensus rule”. He had urged him to drop this proposal till an elected government was in office, but in vain.

As a lower riparian area, Sindh has a significant share of around 23 per cent of Pakistan’s agricultural sector. Yet, it remains at a disadvantage regarding water distribution quite often — especially during the Kharif period when much-needed water is unavailable.

Due to questionable water distribution by the Irsa, the water shortages in Kharif are not equally shared. Sindh and Punjab bear the burden alone, without Khyber Pakhtunkhwa and Balochistan, which the Irsa exempts. The Kotri barrage regularly receives a 60pc to 70pc shortage of agricultural water supplies in almost every Kharif season.

“Shortage in Kharif is not only a direct economic loss for Sindh but also for Pakistan. Weather conditions help the sowing of cotton in Sindh by early March. Water unavailability, however, affects it as dams remain empty in this period. Cotton, being a major cash crop, has the potential to earn foreign exchange. Regarding overall shortage, Sindh has over and above average shortages in the river,” remarks Zahid Junejo, Sindh’s outgoing representative in the Irsa.

According to Zarif Iqbal Khero, a former secretary of irrigation and Sindh’s expert on interprovincial water distribution, even the Irsa has a limited scope within the provisions of the WAA. It can’t function at its whims to allocate water for new canal commands, propose amendments in the Act, or devise formulas other than those mentioned in Chapter II of the Accord and the 10-daily basis operating strategies approved by the CCI.

Interprovincial water distribution, historically, has been a bone of contention between Punjab and Sindh, with Sindh pressing for water distribution under the WAA; the Irsa has been ensuring the distribution of a three-tier formula since 2003. This issue has been pending before the CCI since 2018.

Former attorney general Anwar Mansoor, who led the committee formed by then-premier Imran Khan to look into the matter, had backed the “stance of Sindh on the three-tier formula” in its report before the CCI. But the matter was referred to another committee led by then-attorney general Khalid Jawaid, who subscribed to the Mansoor-led committee’s view. No headway has been seen since then.

In this formula, the Irsa ensures storage, deducts losses, and then distributes water among provinces but exempts Balochistan and Khyber Pakhtunkhwa from bearing shortages, informs Mr Khero. “This formula doesn’t affect Punjab. It is already getting more than its share. Sindh ends up having a net shortage of six million acre feet — equal to Tarbela’s storage”, he explains.

Punjab’s position on the three-tier formula, says Irsa spokesman Khalid Idris Rana, is that the formula is guided by three different provisions of the WAA, ie points two, four and 14-B. Therefore, it has sanctity, whereas Sindh stands for point two-based water distribution. “The CCI now has to come up with a decision on it,” he informs.

To address Sindh’s water-related concerns, Gen Pervez Musharraf, through an executive order, made it mandatory that the Irsa’s federal member always be a person with “Sindh domicile”. This ensured two votes for Sindh — one of Sindh’s own members and one of the federal members— when voting on any matter relating to water distribution.

The arrangement worked for some time, and Sindh-based officials like Fazalur Rehman and Bashir Dahar served as federal members. Later, the matter landed in the Sindh High Court (SHC), which was moved by Ghulam Abbasi Leghari regarding the issue of his nomination as a federal member. The Sindh High Court (SHC) ruled in his favour, but the federal government questioned it in the Supreme Court. Since then, the matter of the federal nominee is also pending.

Published in Dawn, The Business and Finance Weekly, March 18th, 2024