The Lahore High Court came up with a surprise on Thursday and ordered the federal government to implement decisions of the Council of Common Interests (CCI) and build the much-politicised Kalabagh Dam.
“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,” said a short order issued by LHC Chief Justice Umar Ata Bandial after deciding a set of petitions seeking an order for the government to build the dam in the light of CCI’s recommendations.
The chief justice observed that the current shortage of power in the national grid, scarcity and depletion of irrigation water resources for arable land in the country and the frequent occurrence of floods in the Indus River basin had adversely affected the quality and security of life of citizens in Punjab and the country as a whole.
He said the resulting degradation in the quality and conditions of life of the affected citizens violated their fundamental rights guaranteed under Articles 9 and 25 of the Constitution.
Earlier, Shahzad Iqbal, senior joint secretary of the Ministry of Inter-provincial Coordination, informed the court about two decisions taken by the CCI on the project.
The first was taken in 1991 at a meeting of the council which approved the construction of Kalabagh Dam (KBD).
On May 9, 1998, the CCI revisited the issue and directed the Natural Water Resources Development Programme, headed by the water and power minister, to prepare for detractors a document explaining the issues involved in the construction of the dam and addressing political and technical concerns about it.
The council had decided that Wapda should prepare supplementary projects in support of the KBD to mitigate its effect keeping in view that overall cost of the project remained viable. It was also decided that a strategy should be formulated to market the KBD project as a package, including addressing political and technical concerns that had been raised over the time.
The CCI meetings held in the Prime Minister’s House were attended by chief ministers of the four provinces and government officials.
The secretary informed the court that neither the decisions nor the project, thereafter, had received much attention of the federal government. Removal of the elected government in 1999 was also one of the reasons behind non-implementation of the CCI decisions, he claimed.
The petitioners’ lawyers pointed out that a technical study undertaken in 2004 by representatives of the four provinces had endorsed and approved feasibility of the dam. They argued that the CCI was a constitutionally-mandated institution and the government was bound to implement its decisions.
Chief Justice Bandial observed that bona fide steps by the federal government were necessary so that the fate of the project was not sealed on the basis of presumptions and surmises when in the light of the material on record the project was admittedly feasible both technically and economically.
The short order said: “It is, therefore, directed that whilst implementing the CCI decisions the federal government shall faithfully strive to explore and devise an administrative framework and safeguards that allay the apprehensions, political or otherwise nurtured by the quarters concerned about the project.
“The steps shall be taken expeditiously by the government with a resolve to comply with the provisions of Article 154 of the Constitution by effectuating the will of the CCI as expressed or by seeking further guidance and direction therefrom if need arises.
“The federal government is directed that in the performance of its duty under Article 154 of the Constitution, it shall in letter and spirit take steps that implement the decisions of the CCI taken in 1991 and 1998 regarding Kalabagh Dam.”
The chief justice disposed of the petitions after issuing the order.
Feroze Shah Gillani and others had filed the petitions. They were represented by advocates A.K Dogar, Azhar Siddique and Mian Bilal Ahmad.
During the previous hearing, Wapda had contended that the objections raise and apprehensions expressed by three provinces against the construction of KBD were baseless. Such reservations were based on lack of information and hearsay knowledge.
It informed the court that the provincial assemblies of NWFP (now Khyber Pakhtunkhwa), Balochistan and Sindh had passed unanimous resolutions against the construction of Kala Bagh Dam in Dec 1988, Oct 1994 and June 1994, respectively.