Changing horses in midstream
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.