The Lahore High Court (LHC) decision to ask the federal government to construct Kalabagh Dam has reignited the controversy on the issue, which had almost died down after nearly two decades long arguments for and against the project. Out of the four provinces, three of them, namely Sindh, Balochistan and Khyber Pakhtunkhawa, have been vehemently opposing the venture and their assemblies  have also passed resolutions endorsing the positions taken by the provincial governments, who were of the considered view that the construction of the dam will cause far greater damage to their economies and the ecosystems than the supposed benefits that will accrue from it.

This LHC decision has not been well received by the opponents of the project and the Peshawar High Court Bar Association, who have appealed to the Supreme Court (SC) to take notice and nullify LHC’s decision as the issue is beyond its jurisdiction. The first question to be asked in this connection is: whether it was within the constitutional jurisdiction and powers of the LHC to entertain the petition and give a verdict on it? The answer is ‘no’.

In regards to the matters considered or decided by the Council of Common Interest (CCI), there is an ouster clause in the constitution. Article 155(6) says: “No proceedings shall lie before any court at the instance of any party or matter, which is or has been in issue before the Council or of any person whatsoever, in respect of a matter which is actually or has been or might or ought to have been a proper subject of complaint to the Council under this Article.”

According to Article 154(4), the decisions of the Council shall be expressed in terms of opinion of the majority. Article 154(7) says that if the federal government or a provincial government is dissatisfied with a decision of the council, it may refer the matter to Parliament in a joint sitting whose decision in this behalf shall be final. What these Articles indicate is that the decisions of the Council are of advisory nature and in case of any dispute or objection on its decisions, the matter will finally be decided by Parliament, rather than at any other forum. So, Article 155(6) and Article 154(7)  read together make the matter crystal clear. 

The courts as custodians of the constitution are supposed to abide by it themselves, which gives them limited powers. They cannot and should not transgress into the territories earmarked by it for other institutions of the state. In this instance, the LHC has not only shown disrespect to the ouster clause, but has also usurped the powers of Parliament to decide issues arising out of the decisions of the CCI.

The construction of Kalabagh Dam is a policy issue that can only be resolved through a political process on the basis of consensus of the majority. Here we have three provinces opposing its construction, which means that those who are opposed to this project are in majority. Trying to foist decisions on the provinces against their will can have disastrous consequences for the federation itself and no person in his right mind would opt for any course of action that undermines national unity by generating fissiparous tendencies.

It is really painful to note that the judiciary in its zeal to strengthen its self-assumed credentials of a saviour of the nation is not hesitating from transgressing its limits and even arrogating to itself the powers of the other institutions, which is a very dangerous development. It will generate an ambience of confrontation among the state institutions, besides hampering the process of governing the country, which is an exclusive constitutional prerogative of the executive and the legislature.

The decision of the courts after attaining finality are binding according to the internationally recognised principles of jurisprudence, irrespective of the fact whether they are in conformity with the constitution or otherwise. That is why the courts are also supposed to exercise judicial restraint. Any wrong and binding decision can have serious repercussions. Such decisions are not only embarrassing for the executive in case they cannot be implemented, but also contribute to scuttling the credibility and prestige of the courts themselves, besides making their role controversial.

The SC tried to fix the prices of sugar and we all know it could not be implemented to the embarrassment of the court. These matters come in the domain of responsibilities of the executive, which takes decisions after a process of rational deliberations on the economic variables and due consideration to the interests of the stakeholders.

Another and the most recent example is the lowering of the CNG prices through a judicial order. Though on the face of it the decision was in the public interest, it has caused untold difficulties and inconvenience to the motorists and the commuting public as the CNG Association went on a strike against the decision. The pricing of commodities like CNG is a very complex undertaking and it is better left to the market forces and the executive.

No doubt the Kalabagh Dam project was recommended by the CCI in view of the burgeoning demand and future requirements of electricity and its construction with consensus would have helped a lot in tiding over the shortage of electricity. But it is also the legitimate right of the provinces to weigh the benefits of the dam against the losses in the other areas. Since three provinces are opposed to this undertaking, it should not be agitated further or imposed on them through coercive decisions. The country has other alternatives to produce electricity like solar and wind energy.

According to a USAID report prepared recently, Pakistan has a potential of producing 40,000 MW of electricity through wind power from the Sindh corridor. Similarly, there is no limit on harnessing solar energy. The government has recently decided to convert all the existing power producing unit to Thar Coal and also to base the future projects on the indigenous coal. It is estimated that the in hand projects based on Thar Coal have the potential of generating 4,500 MW of electricity. With so much potential for producing electricity from other sources, there is no justification for generating new controversies and cleavages in the national fabric. We already have had enough of them. It is hoped that the SC will take notice of the decision and set it aside in the best national interest.

The writer is a freelance columnist. Email: ashpak10@gmail.com