Chang­ing horses in mid­stream

The Pak Banker - - 4editorial - Ash­fak Bokhari

BY sud­denly re­mov­ing Ja­maat Ali Shah from the po­si­tion of the coun­try's per­ma­nent com­mis­sioner on In­dus Wa­ters Treaty, Pak­istan has only shot it­self in the foot at a time when pro­ceed­ings of Kis­hanganga dam case are about to be­gin in the In­ter­na­tional Court of Ar­bi­tra­tion. Mr Shah hap­pens to be the most ex­pe­ri­enced hand in Pak­istan team with ex­per­tise in mat­ters re­lat­ing to wa­ter is­sues with In­dia.

Is­lam­abad has moved the ICA over the con­tro­ver­sial project be­ing built by In­dia in the oc­cu­pied Kash­mir. The con­sti­tu­tion of the court is about to get com­pleted. Shah's trans­fer has noth­ing to do with the Kis­hanganga case. It is an out­come of the two-year long tus­sle be­tween him and Ad­viser to the Prime Min­is­ter on Wa­ter Mr Ka­mal Mjidul­lah over who should call the shot in se­lec­tion of le­gal coun­sels and other mat­ters re­lat­ing to this project for which the govern­ment had ear­lier al­lo­cated $10 mil­lion.

Mr Ma­jidul­lah had ear­lier sug­gested the name of Prof Kaiyan Kaikobad, who had done doc­tor­ate from London School of Eco­nom­ics and was a fel­low of Royal Ge­o­graph­i­cal So­ci­ety (FRGS), as the lead ju­rist. Kaikobad died be­fore a for­mal de­ci­sion could be taken.

The ad­viser is against re-se­lec­tion of Prof James Craw­ford along with his team of lawyers. Al­though Craw­ford failed to win Bagli­har dam case for Pak­istan be­fore the neu­tral ex­pert ap­pointed by the World Bank, he is be­ing favoured by the min­istry of wa­ter and power and also Ja­maat Ali Shah. They find him, un­der the cir­cum­stances, the most ap­pro­pri­ate choice for he has knowl­edge about Pak­istan's le­gal po­si­tion in its wa­ter dis­putes with In­dia.

A new le­gal coun­sel, what­ever his cre­den­tials, will re­quire a few months to pre­pare him­self and his team to con­test the case. But Pak­istan has al­ready wasted about six months in ef­forts to choose a le­gal ex­pert to rep­re­sent it in the ar­bi­tra­tion pro­ceed­ings, which are the first of its kind since 1960. In fact it took al­most a year for the min­istries of wa­ter and power, and law and jus­tice to de­cide whether it should seek ar­bi­tra­tion un­der the IWT pro­vi­sions.

With Ja­maat Ali Shah re­moved from the scene and Craw­ford side­lined, Mr Ma­jidu­lalh him­self and deputy at­tor­ney gen­eral K. K. Agha are likely to lead the govern­ment team. How­ever, the way the things are mov­ing, concerned cir­cles fear that the fate of Kis­hanganga case may not be much dif­fer­ent from that of the Bagli­har.

The dis­pute is over In­dia's 330 MW hy­dro­elec­tric project on Kis­hanganga, a trib­u­tary of the Jhelum in In­dian part of Jammu and Kash­mir. Ac­cord­ing to New Delhi, the In­dus treaty al­lows it to di­vert Kis­hanganga wa­ters to the Bonar Mad­mati Nal­lah, an­other trib­u­tary of the Jhelum, which falls into the Wullar lake be­fore join­ing the Jhelum again.

Pak­istan has ob­jected to this say­ing In­dia's plan to di­vert wa­ters is il­le­gal and will ob­struct the flow of the river af­fect­ing its Nee­lam-Jhelum project down­stream. The di­ver­sion will re­duce by 16 per cent the power gen­er­a­tion ca­pac­ity of the 969-MW Neelum-Jhelum power project on the same river down­stream in Azad Kash­mir. The project will cause a loss of en­ergy worth Rs6 bil­lion ev­ery year.

Ja­maat Ali Shah was told on tele­phone in La­hore a week ago to hand over charge of Pak­istan's In­dus Com­mis­sioner to his deputy, Sheraz Jamil Me­mon, an of­fi­cial of Sindh ir­ri­ga­tion depart­ment, and re­port to the Es­tab­lish­ment Di­vi­sion. This is de­spite the fact that com­mis­sioner's post is a per­ma­nent post and falls va­cant only on superannuation of the in­cum­bent, which is due next year. The concerned min­istry was un­aware of the hap­pen­ing but one of its of­fi­cials said that prob­a­bly the or­der came from the pres­i­dency.

Pak­istan de­cided in May to ap­proach the In­ter­na­tional Court of Ar­bi­tra­tion against the con­struc­tion of the Kis­hanganga hy­dropower project by In­dia in what is seen a vi­o­la­tion of the 1960 In­dus Wa­ters Treaty. By this time In­dia had al­most com­pleted the 22-km tun­nel to di­vert Kis­hanganga (it is called Neelum as it en­ters Azad Kash­mir) wa­ters to Wullar Lake. The project will be com­pleted by 2016.

Once com­plete, the project will af­fect Pak­istan's rights over the river, re­duce its flows into Pak­istan and min­imise its power gen­er­a­tion ca­pac­ity. Ja­maat Ali Shah had re­quested the govern­ment in March, 2009, to take up the case with the In­ter­na­tional Court of Ar­bi­tra­tion as all op­tions at the IWT level had proved fu­tile. Still, it took the govern­ment more than 14 months to take a fi­nal de­ci­sion.

In fact, Pak­istan has been op­pos­ing the project for more than a decade. Pak­istan may have al­ready lost pri­or­ity rights over the project as the com­pleted tun­nel was the ma­jor com­po­nent of the project. Time is of essence in such cases for what has been com­pleted can­not be un­done.

In­dia has been ben­e­fit­ing from Pak­istan's in­de­ci­sive­ness by pur­su­ing the work on the project ex­pe­di­tiously al­though Pak­istan has been rais­ing ob­jec­tions and seek­ing ne­go­ti­a­tions. While In­dia de­cided to de­velop the project in 1988, it in­formed Pak­istan in the mid-1990s. The is­sue re­mained on the agenda of the Per­ma­nent In­dus Com­mis­sion for more than eight years. On July 3, Ka­mal Ma­jidulla said in a state­ment that if a mu­tu­ally agreed list of ex­perts to re­solve the is­sue can­not be agreed upon, the two coun­tries will rely upon a sin­gle negotiator to rec­on­cile dif­fer­ences with re­spect to a com­mon list.

On July 22, Pak­istan and In­dia re­jected each other's pro­posed nom­i­nees for the Court of Ar­bi­tra­tion. The two sides de­cided, un­der the IWT pro­vi­sions, to draw lots to de­ter­mine three in­di­vid­u­als who will se­lect the um­pires un­der three cat­e­gories - chair­man, le­gal mem­ber and en­gi­neer mem­ber. On Oc­to­ber 8, min­is­ter for wa­ter and power Raja Pervez Ashraf in­formed the Na­tional Assem­bly that Pak­istan has in­sti­tuted pro­ceed­ings in the In­ter­na­tional Court of Ar­bi­tra­tion to re­solve the dis­pute with In­dia over Kis­hanganga dam.

Newspapers in English

Newspapers from Pakistan

© PressReader. All rights reserved.