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Interview with Ahmed Rafay Alam, environmental lawyer

Ahmed Rafay Alam is a founding partner at Saleem, Alam & Company, a Lahore-based law firm specialising in the energy, water, natural resources and urban infrastructure. He considers himself an environment activist with a passion for public interest litigation.

He has held several honorary positions in various public sector organisations including Chairman, Lahore Electric Supply; Director, Lahore Waste Management Company; and Founding Director, Punjab Saaf Paani Company.

In addition, Rafay has been member of task forces on urban development, and social sector for the Planning Commission; member provincial and federal committees on urban commercial policy; public transport; UN-Habitat country program; and Lahore Walled City conservation legislation.

As board member, he has worked for Punjab Urban Resource Center, Applied Socioeconomic Research Institute, and Institute of Women’s Studies, among others. Previously, he has also served as Vice President of Pakistan Environmental Law Association, and General Secretary of Public Interest Legation Association of Pakistan.

Given his breadth of experience dealing with legal aspects of environment management, Rafay is not only highly opinionated, but also does not shy away from sharing his views, which are often contrarians. BR Research sat down with him recently to seek his perspective on challenges facing Pakistan’s water economy. Below are the edited excerpts:

BR Research: Your views on managing the specter of water shortage in Pakistan have recently become quite popular, especially on social media. For those of us not familiar with your work and “still living in dark ages”, please explain how a professional lawyer came to have such strong views on water economy?

Ahmed Rafay Alam: I am a lawyer who chose to specialise in environmental law because there were too many banking and corporate lawyers around. Becoming an expert in environmental law, to be frank, is not a big deal. Unlike tax code which goes to hundred of pages, the environmental code is no more than 32 sections or seven to eight odd pages.

It is of course no news to your readers that environmental protection has come out of peripheries of social sector advocacy in recent years globally. For example, early 2000s saw urban development and city planning taking centre stage, followed by climate change in 2009-10.

Similarly, Pakistan has also seen spikes of interest in policymaking and legislation on environment in recent years, in line with global trends. In many ways, 2009 was Pakistan’s year of climate change, and efforts made since led to development of our first policy on environment, which was issued in 2012. By that time, I had already spotted water as the next big thing.

BRR: But what is the extent of water related litigation in Pakistan anyway?

ARA: Immense! Because effectively, there is no water law in this country. This means we had to go down looking for it. How does the local law define water? Is it a fundamental right or a private good? What are the rights and responsibilities of citizenry to this scarce resource?

Most people cannot name any rules or legislation on water other than Indus Water Treaty, which technically governs transboundary issues and does not even apply to local litigation. Pakistan ranks worst globally in terms of number of children (under five) at risk of death due to diarrhea. It is a severe public health risk, caused primarily due to lack of access to clean water for drinking and sanitation.

But when one looks at the discourse on water in this country, it revolves around a handful of areas such as dam-building, which are technically engineering or hydrological questions. Only recently, climate change’s effects on water availability have begun to attract some attention. But issues of public-interest still remain largely ignored.

BRR: A recent study on consumption patterns of drinking water in urban Faisalabad seems to indicate that water pricing has limited value as a tool for demand management. Does that not contradict the policy position taken by most experts that without demand-based pricing, water consumption cannot be rationalised?

ARA: Yes, it is the mainstream view and I agree that pricing can be a useful tool to rationalise consumption and reduce wastage of scarce resources. Public officials serving at various water and sanitation departments have also confirmed to me in various interactions that summaries to revise water charges have been raised time and again, only to be declined by the political bosses in power. I do not know of a politician who has ever publicly advocated increasing the price of water.

Second, there can be no water pricing without first introducing water metering. Currently, water charges are linked to rental value of the property, and not to the amount of water consumed by a given household or farm. Thus, we have to first introduce meters, which is a huge capital expenditure.

Until that happens, the policy recourse is limited to taking ad hoc measures such as introducing slabs based on socio-economic classification of localities. This is probably going to be as ineffective as the current principle of linking charges to rental value of property. So, my answer is yes, pricing as a tool can be ineffective if it is done without introducing metering first.

I will add that the conversation on water is also missing an important aspect: what should the pricing of water include? The price of water charged by a commercial bottler includes a profit for his shareholders; whereas the water and sanitation department only charges operating and maintenance cost. That’s because they think like plumbers. But what about the negative externalities on ecology caused by human consumption? For example, should the price of water consumed in irrigation include the cost of declining environmental flows?

These are, of course, tough questions to answers. But it is time they become part of social discourse. Unless the civil society asks these questions, water as a scarce resource will remain susceptible to exploitation, whether it is by commercial bottlers or farmers with large landholdings. Similarly, those of us washing our cars with tap water should be made to pay for it through their noses. Such values only take hold as a social response.

BRR: By most estimates, Pakistan’s agriculture sector consumes between 90-94 percent available freshwater resources. Similarly, 80 percent of country’s exports constitute of agriculture and agri-derived products. Given this context, would you agree that there is an inherent contradiction in government’s advocacy for conservation when the state lacks the will to bring meaningful change to Pakistan’s crop-mix?

ARA: You are absolutely right, and the more closely one analyses the state’s policy, the more ridiculous it sounds. Things can only be this ridiculous, when there is something wrong with the foundation; I have a theory on this.

Like you said, the country applies 90 percent of its water resource to a sector that is one of the least productive forms of economic development. The sector absorbs half of our workforce and yet contributes only 20 percent to the economy.

My point is almost all of country’s water resource and half of its workforce is geared towards producing a small output. This is exactly what the colonialists designed for us 100-150 years ago. They wanted a system that prevented famines, subdue the Sikh Khalsa, and provide monetary gain to the British. This phenomenon is well documented by academics such as Dr. Daanish Mustafa, Dr. Imran Ali and others.

In seventy years, state’s only addition to this colonial economic model is Indus Water Treaty, while basic premise has remained unchanged. By and large, fifty percent of the labour force employed in agriculture remains close to the poverty line. The 80 percent of agri-based exports you referred to are mostly profits to the seths and industrialists in urban areas.

Pakistan needs to transform its water paradigm; it can only be done by employing the workforce currently engaged in agriculture in other more productive sectors of the economy. This agri-centric worldview is shackles for our economy.

Just imagine that the country sows its staple cereal crop during the rabi season, when there is little rainfall. This means that the water stored during monsoon season is used to produce a water intensive crop in rain fed areas during dry season!

Pakistan’s agri economy needs grand thinking. Research has indicated that Pakistan’s cash crops and livestock have very high-water footprint, especially when compared to other countries. If this means the society has to stop treating cereal and meat consumption as ‘pillars of faith’, it’s okay!

Remember, less than hundred years ago, most of this region did not have electricity, which means there was no refrigeration either. Could meat have been a staple part of our diet back then? Absolutely not. And if most of the agri-workforce remains engaged in subsistence farming, has this transformation of dietary patterns helped emancipate them?

It is not necessarily a good thing that 80 percent of our exports consist of agri-derived goods. Because we need to be mindful that it is akin to virtually exporting our water resources. Academics argue that developed countries have effectively outsourced their food productivity to countries such as Pakistan, and that helps their economies be less water-intensive. There is no harm in limiting agricultural output to levels that meet country’s food security needs.

BRR: Do you agree that Pakistan needs additional reservoirs or water storage capacity to the extent will be added by Diamer-Bhasha?

ARA: There are two ways to store water: either above ground, for which you have to build dams, and underground, which does not require any infrastructure building. United States has decommissioned thousands of dams that it built during the 20th century, and they are instead focusing on replenishing their aquifers underground. And it is what the rest of the developed world is doing as well. A recent report by National Academy of Sciences, USA has well-documented the trend towards dam removal around the world. And yet in Pakistan, we want a 20th century solution to 21st century problem.

While your question is technical, I can share the legal perspective. The site for the proposed dam is located in Gilgit-Baltistan, which is not a province. Thus, it cannot take any complaints to the CCI or enjoy benefits from the hydel power generation. I don’t believe that the project will go beyond ground-breaking activities; I have heard anecdotes where the ‘dam affectees’ have built homes from the compensation received in the same valley that is going to be flooded by the dam. That’s because they too are aware that it is very difficult for this project to reach fruition.

Going back to your question, it would be correct to say that the country needs to store more water because the precipitation patterns are becoming increasingly erratic due to climate change. But like I said before, that storage need not come in the form of dams. Climate scientists predict that weather patterns are going to become even more erratic. If additional dams are constructed, will they be of any use if rainfall reduces and we cannot even fill up the existing ones?

Every year, Pakistan loses forty million-acre feet of water to wastage and evaporation in the irrigation system, which is equal to the storage capacity of five Diamer-Bhasha’s. We can save these resources by encouraging more efficient use of water in agriculture and rationalising consumption by increasing water pricing.

Copyright Business Recorder, 2018