Information Minister and the PPP's chief spokesman Qamar Zaman Kaira termed the LHC directive an anti-federation project and interference in political affairs. Given the sensitivity of the issue, even the leadership of the ruling party in Punjab, the most ardent advocate of the dam project and allegedly its main beneficiary, has been careful to give a guarded response to the judgement.
The criticism is rather harsh considering that the court, hearing a set of petitions on the issue in the wake of a severe power crisis, based its judgement on law points. The short order, issued by LHC Chief Justice Umar Ata Bandial, pointed out that "the Constitution of Pakistan confers a pre-eminent position to the CCI to formulate and regulate policies for the federation in relation to a number of subjects, including water and power. A decision of the CCI has obligatory effect unless the same is modified by Parliament at the instance of the federal government under Article 154 (7) of the Constitution. "Clearly, the verdict draws its rational from the relevant constitutional provisions. Still, it can, and most likely will be, challenged in the appellate court. The ongoing executive-judiciary tussle seems to be the reason the federal government has reacted to the court verdict in the way it has.
Politicians from Punjab of all hues and shades want Kalabagh to be built while those from Sindh and Khyber Pakhtunkhwa (KP) are strongly opposed to it. This just goes to show that the two major national political parties - PPP and PML-N - are not that much ideologically apart in reality than they appear to be in their public meetings. Both appear to be figuring out what is right for them rather than what is right for the country as they manoeuvre in a hyper-partisan electioneering environment. If past is any guide - the provincial outlook on the controversial dam is expected to continue post-elections.
After all, the dam at Kalabagh had been envisaged in the sixties - soon after the Indus Water Accord between Pakistan and India in 1960. The National Awami Party (NAP) led by late Khan Wali Khan opposed to Zulfiqar Ali Bhutto sounded the alarm when marking for the mega reservoir began in Nowshehra. Khan, upon his release from prison in the wake of military coup against Bhutto, again took up the opposition to the proposed dam and plans for building the water reservoir at Kalabagh were shelved by General Zia-ul-Haq. The issue was taken up in CCI when Nawaz Sharif was the Prime Minister in 1991. But the opposition, earlier by a Sindh representative, Abdul Majid Qazi, on the senatorial committee on the dam design sounded the alarm in Sindh. Since then, Sindh has been bitterly opposed to any dam on the Indus.
Certainly there is a need for more water storages. It is the location on which a deal between federating units needs to be arrived at. The Secretariat of CCI has asked the governments of Sindh and KP to provide their comments on the LHC order. Without bi-partisan support, from Punjab and Sindh/KP, within the two major parties - Kalabagh remains a non-starter. Political pressure to do something later is typically less credible than actually making it happen now. With India making several dams in Kashmir, on the Indus, and Afghanistan planning a large dam on the Kabul River the country needs to do the right thing now. The process, however, at this point for more water storages looks to be long.
While the need to build new dams both for the purposes of water conservation and energy generation is self evident, the Kalabagh Dam project, understandably, is a highly emotive issue in KP and Sindh. KP fears the dam would inundate swathes of its Nowshehra district and cause water logging in large parts of the adjoining areas. Sindh is apprehensive that an irrigation canal that forms part of the project design could deprive it of its share of water, while reduced water flows down the Kotri Barrage would cause sea intrusion and harm the environment. These are all serious concerns aggravated by a long history of distrust of Punjab. So far all the efforts to create a consensus have failed. Meanwhile, the estimated construction cost has kept mounting, the government's financial constraints getting severer, and the multilateral donor organisations less and less inclined to support the project in the absence of a consensus. It would benefit all if the federal government adopted a positive attitude and helped address the KP and Sindh's genuine concerns.
Last but not least, our court system is made up of many courts differing in levels of legal hierarchy and separated by jurisdiction. The High Courts are the appellate courts for all civil and criminal cases in each respective province. Disproportionate criticism that the Lahore High Court short order on Kalabagh Dam has received seems to have, therefore, given birth to an interesting question: Would there be an equally strong reaction had Sindh High Court or Peshawar High Court, or both, passed such order?
Strong but arguably plausible criticism on LHC verdict also leads to another question: Why would High Courts of Sindh and KP give a similar judgement if the LHC verdict was in response to several identical petitions that underscored the need for construction of KBD and how and why SHC or PHC admit for regular hearing such pro-KBD petitions if the jurisdiction of each high court is taken into account? How these two courts had reacted to claims that the construction of KBD was also in the interest of these two provinces. The situation therefore suggests that the KBD is principally in the interest of the Punjab; and, it hardly accrues any benefit, if no harm, to the two provinces opposing its construction. Hence, the Punjab is required to deliver a good sales pitch, making the project acceptable to these two provinces because it's too expensive, delivers too little benefit and there's concomitant too much opposition to it. But the onerous task for the largest province of the country would be to bridge the trust deficit. The role that Punjab under the chief ministership of Shahbaz Sharif played in the finalisation of the historic 7th NFC Award was perhaps its first profound move towards that direction or resolve, though the Centre had made the major sacrifice. Some similar steps would greatly help Punjab evolve consensus on a project of high national import, but in due course. In other words, Punjab will be required to yield more space to other provinces in the greater interest of the federation as well as for better prospects of Kalabagh Dam.