ENVIRONMENTAL Protection IN PAKISTAN
Environmental degradation is a major global concern. In Pakistan, as well, we are struggling to find ways to deal with it. The Parliament has passed legislation for protection of the environment. This paper will examine the current legal situation with regard to environmental protection, and in the process discuss the role played by the honorable courts in creating an enabling procedural framework for the protection of environment. The paper looks at the gaps and bottlenecks that existed for the petitioner to approach the superior courts and how the superior courts through various cases, starting from the seminal Shehla Zia case (PLD 1994 SC 693) down to the present day have through hearing many petitions impacted this area. The impact has been two fold; relief in the particular case and broadening of the potential for judicial intervention for environmental protection.
The emergence of environmental protection law in the last four decades is a manifestation of global desire to combat the deteriorating standards of environment by encouraging enactment of laws and policy guidelines to prevent irreparable loss to it. The magnitude of the task required an all-inclusive and participatory approach whereby not only experts but civil-society organizations could also play their part in the formation of laws and act as pressure groups to force governments to adopt a sustainable approach to growth and, thereby, striking a balance between environmental protection and development. Since the conclusion of Stockholm Declaration in 1972, more than 500 international environmental agreements have been concluded3 and the interest in the subject only gains in momentum with every passing day. Pakistan, being a responsible member of international community was quick to respond to the global need and adopted not only relevant international conventions, such as the Convention on Biological Diversity4, but also put in place national legislation. It is pertinent to note that centre is responsible to incorporate its international commitments in the domestic law by virtue of items numbers 3 and 32 of the federal legislative list.
One of the primary purposes for putting in place environmental legislation was to couple development with environment protection in order to keep a balance between economic growth and the use of resources. Being mindful of the need to preserve environment, Pakistan was quick to establish the Ministry for Environment (hereinafter referred to as the Ministry) in 1975.7 The Ministry was mandated with the task to ensure the implementation of Environmental Protection Ordinance, 1983 wherein an institutional framework was provided at national and provincial level in the form of establishment of Environmental Protection Agencies and Pakistan Environmental Protection Council (hereinafter referred to as PEPC), then headed by the President as provided for in section 3 of the said Ordinance. Later, through an amendment, Prime Minister was designated as its head. Main functions entrusted to the Council included formation of the national environmental policy and enforcement of National Environment Quality Standards.8 After the conclusion of the Rio Summit, commonly known as the Earth Summit, National Conservation Strategy (hereinafter referred to as NCS) was introduced to address the environmental concerns.9 NCS was designed to meet three objectives; conservation of natural resources, sustainable development and improved efficiency in the use and management of resources and it highlighted fourteen key areas in respect of which policy guidelines were recommended.10 In 1993, Environmental Protection Agency issued a statutory notification whereby it introduced National Environmental Quality Standards (hereinafter referred to as NEQS). NEQS related to ‘municipal and liquid industrial effluents, industrial gaseous emissions and motor vehicle exhaust, and noise.’11 The current applicable legal framework was provided in Pakistan Environmental Protection Act, 1997 (hereinafter referred to as PEPA) which repealed the earlier Ordinance and is discussed in the next section.
Relevant legal framework:
Constitution of Pakistan, 1973 does not contain any provision whereby an explicit mention of environment has been made. Before concurrent legislative list was repealed under the eighteenth (18th) amendment, item number 24 of the list mentioned “environmental pollution and ecology” thereby allowing both centre and provinces to legislate on the subject.12 However, the courts, by employing ‘expansive interpretation’ have read environmental aspect into certain fundamental rights provisions to be discussed in the seminal case of Shehla Zia v Wapda (1994). The basic framework, otherwise, is contained in PEPA, 1997.
PEPA received the assent of the President on December 3, 1997. It was designed as an overarching legal framework seeking to comprehensively cover aspects related to environmental protection in Pakistan. The preamble to the law states, ‘An Act to provide for the protection, conservation, rehabilitation and improvement of the environment, for the prevention and control of pollution, anti promotion of sustainable development.’
And the term environment, as per the Act, includes:
(a) air, water and land;
(b) all layers of the atmosphere;
(c) all organic and inorganic matters and living organisms;
(d) the ecosystem and ecological relationships;
(e) buildings, structures, roads, facilities and works;
(f) all social and economic conditions affecting community life; and
(g) the inter-relationships between any of the factors in sub-clauses (a) to (f)14
PEPA retained PEPC and allowed Prime Minister, as head of the PEPC, to nominate any other person on his behalf. Functions entrusted to the council remained same as were provided for under the now repealed Ordinance. PEPA provides for environmental protection agencies in both, centre and provinces, whereby the provincial agencies enjoyed power resulting from delegation from central to respective provincial government which would further delegate them to the provincial agency.16 As a result of the eighteenth (18th) amendment to the Constitution of Pakistan, subject of environment, amongst others, was devolved to the provinces. Constitution, however, provides that the laws in force before the commencement of the amendment shall continue to remain in force until altered, repealed or amended by the competent authority.17 The relevant provincial legislation, in this regard, has been referred to later in this section. Chief functions of the federal agency include; enforcement of the Act, preparation of national environmental policy and NEQS with the approval of the Council. It may also, ‘Undertake inquiries of investigation into environmental issues, either of its own accord or upon complaint of any person or organization.
PEPA prohibits discharge ‘of any effluent or waste or air pollutant or noise in an amount; concentration or level which is in excess of the National Environmental Quality Standards.’19 One of its significant features is the environmental assessment; initial environmental examination, which needs to be done before a project is undertaken in order to assess the risks the project may pose to the environment ‘for requiring preparation of an environmental impact assessment’20 (hereinafter referred to as EIA) where the project has the probability of leaving a negative impact on the environment.21 Schedule to the Act contains a list of international conventions with respect to which the federal government, as mentioned above, has the power to make rules for implementing their provisions.22 It is pertinent to note that these would remain unenforceable unless the federal government or the provincial government in accordance with the relevant Act prescribes rules to put their provisions into effect.
Since the passage of the eighteenth amendment, all the four provinces have passed environmental protection legislation thereby effectively replacing the national legislation in the provincial jurisdiction i.e. Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan.
It is important to mention the name of Honorable Mr. Justice Saleem Akhtar, who many believe played a pivotal role in promoting environmental protection through judicial action.
Impact of the Case-Law, Innovation and principles of law
An important aspect of studying the impact of case-law to study how superior judiciary has provided for necessary legal and procedural framework which is a prerequisite for assuming jurisdiction over matters of environmental protection under the rubric of ‘public interest litigation. Before we look at the impact of case-law on environmental protection, we need to look at the issues which were a hindrance with regard to the courts’ ability to provide relief. The first problem was that under an adversarial system, being an aggrieved person is a necessary condition for having a locus standi before the court of law. Related to this is the problem that the courts do not traditionally have an inquisitorial role under common law systems. Finally, PEPA has an ouster clause, which does not allow courts to hear the case at the initial stage, and only allows them to hear appeals from the tribunal.
PEPA, specifically provides for establishment of environmental tribunals. A complaint, in respect of matters enumerated in section 17 of PEPA, may be addressed to the tribunal by either the agency or government agency or local council and any aggrieved person provided he has made a notice of his complaint to the respective agency with the intent to file the same before the environmental tribunal. In addition, the law explicitly states that the tribunals shall have exclusive jurisdiction to deal with matters that fall under the Act and, thereby, precludes jurisdiction of any other court to hear the case at the trial stage. Though, an appeal can be preferred to the High Court. The superior courts have, however, maintained that the finality clause cannot preclude the power of judicial review.25 In General Secretary Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore (1994)26, the court made it clear that procedural bottlenecks cannot restrict the ability of the court to hear cases affecting rights of the people, at large. In this case, it stated:
“It is well settled that in human rights cases/public interest litigation under Article 184 (3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections, cannot bar the jurisdiction of the Court.”
The honorable courts primarily adopted this approach to distance themselves from the traditional common law adversarial approach. As this approach is more suitable in cases which involve the rights of one person against another, rather than the rights which rest in things, such as environment, which is shared by large groups of people and citizens at large and which poor people don’t have the means to protect, so that unions, non-governmental organizations and other bodies working for environmental and other causes can bring cases before the court to protect the vulnerable against the environmental hazards who may otherwise be left without redress owing to lack of education or resources to approach the court. In an Indian Case, Bandhua Mukti Morcha v. Union of India and others (1984)27, Justice Bhagwati noted to this effect that:
“[s]trict adherence to the adversarial procedure can sometimes lead to injustice…. it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring necessary material before the Court for the purpose of securing enforcement of their Fundamental Rights.”
Similarly, Lahore High Court in State v M.D. WASA(2000)28 noted:
“The rationale behind public interest litigation in developing countries like Pakistan and India is the social and educational backwardness of its people, the dwarfed development of law of tort, lack of developed institutions to attend to the matters of public concern, the general inefficiency and corruption at various levels. In such a socio-economic and political milieu, the non-intervention by Courts in complaints of matters of public concern will amount to abdication of judicial authority.”
The Court, in the foregoing case, also pointed towards the possibility of judicial intervention where the court deems it appropriate. The suo motu notices are a reflection of the court’s intent and, as put by Dr. Pervez Hassan, “show the acute concern of the Pakistani judiciary to perform their functions towards advancing justice so far as circumstances and their powers permit.”29
One of the essential differences between adversarial and public interest litigation is that in the latter “proceedings conducted by the court are inquisitorial rather than adversarial, and they tend to be discretionary, incorporating any elements of informal procedure which the judge considers appropriate to follow.”30 It needs to be mentioned here that the inquisitorial system is practiced in the European continental civil legal systems, whereas common law works on the basis of adversarial system. The reason for broadening the purview of their jurisdiction and to innovate new procedures is to ensure that the court interprets the law avoiding procedural technicalities so that justice is done. In an adversarial legal system, the judge is neutral whereas in an inquisitorial system he plays a more active role and as part of combining inquisitorial with adversarial legal system the courts have devised the system of appointment of expert commissions to probe the hazards which may accrue as a result of a project is an example of the inquisitorial procedures adopted by the courts in public interest litigation to fill in the ‘gap’ that the court exercises in matters related to environmental protection since judges require the help of environmental experts to understand the environmental impact.31
The landmark public interest environmental litigation is considered to be Shehla Zia v WAPDA (1994).32 The case preceded PEPA whereby it was submitted before the Honorable Supreme Court that whether the life of a citizen can be endangered by an action undertaken by an agency of the government without the consent of the citizen. This case is important for quite a few reasons. Firstly, the honorable Supreme Court broadened the right to life (Article 9) to include the right to clean environment and made the following observation as obiter dicta:
“The word “life” has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. A person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations.”
Secondly, the honorable Court while being mindful of the need for economic development observed that a balance needs to be struck between the rights of the citizens and the economic progress and prosperity of the country. Thus, the Court highlighted that a ‘policy of sustainable development’ shall be adopted. Thirdly, the Court gave weightage to expert opinion and the importance of research in technical matters. The Court was mindful of the fact that up-to date information and research must be available at all times to consider the effects which hazardous material may have on human health. This is significant because the Court rightly adopted evolutory interpretation on the matter for nature of the law is one which required the Court to deal with it as a living instrument constantly evolving with scientific research on the subject. Lastly, the Supreme Court introduced the precautionary principle in the Pakistani jurisprudence. This was adopted from the Rio Declaration albeit it is not binding. The said Principle 15 of Rio Declaration provides:
“…Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation”
In the same case, the honorable Supreme Court further noted:
“Pakistan is a developing country. It cannot afford the researches and studies made in developed countries on scientific problems particularly the subject at hand. However, the researches and their conclusions with reference to specific cases are available, the information and knowledge is at hand and we should take benefit out of it. In this background if we consider the problem faced by us in this case, it seems reasonable to take preventive and precautionary measures straightaway instead of maintaining status quo because there is no conclusive finding on the effect of electromagnetic fields on human life.”
The Court, though, as can be deduced from the abovementioned case are ready to give an expansive interpretation in cases of environmental protection but at the same time they do not seem to go so far as to frustrate the projects which are undertaken by the Government as a result of compelling circumstances. In Cutting of Trees for Canal Widening Project, Lahore (2011)33, the Honorable Supreme Court laid down some important principles to achieve a balance between economic growth and preservation of the environment. It was observed that the alleged violation of a fundamental right will not vitiate the necessity of a project so long as it can be shown that; alternative proposals were duly considered, EIA was given clearance by the concerned agency and doctrine of public trust or precautionary principle were not violated. In this regard the Court made reference to Professor David Takacs’s34 work wherein the elements of Public Trust Doctrine are explained as follows:
“(i) the sovereign holds certain resources in trust for the common good;
(ii) The public has some kind of right to protection of these resources: and
(iii) While democracy may seem subverted when a court overrules the acts of elected officials, such judicial acts in fact serve democracy by preserving rights invested in all the people.”
The preceding case-law is an example of how the courts will not second guess the judgment of the relevant agency so long as all the legal requirements are met and the law is abided by in true spirit. Secondly, by making reference to the doctrine of Public Trust, court has made it evident that it is for the state to decide what constitutes greater good of the society and not the public and that the court will only overturn an official act where it deems the same to be against the interest of the public at large.
In another important case, Syed MANSOOR ALI SHAH and 4 others v GOVERNMENT OP PUNJAB, through Housing, Physical and Environmental Planning Department, and 3 others (2007)35, the Honorable Lahore High Court while dealing with the issue of air pollution caused by vehicular emissions directed the relevant authorities to take concrete steps to implement the recommendations of the Commission appointed by the Court in the said case. One of the key suggestions in the case was the phasing out of two stroke rickshaws from Lahore. The case is important for two reasons. One, the court directed the authorities to undertake measures so that suggestions of the Commission could be implemented what would otherwise have been a policy decision. This reflects that the court may be ready to venture into-policy domain if the relevant authorities fail to take measures in order to preserve the environment and to prevent public from being affected by the hazards of its degradation. Secondly, the attention of the Court was drawn to the international conventions that Pakistan is a part of whereby she has made commitments to take measures to improve the environmental situation. This suggests that there is a trend in cases related to protection of environment that the court would delve into the international environmental treaties and the principles laid therein to reach a conclusion even in the absence of an enabling legislation or rules made to that effect. The Court made the following observation:
“Pakistan is party to 2001 Stockholm Convention; which is a global treaty to protect human health and environment from Persistent Organic Pollution (POP). Pakistan has also joined the global community being party to 1985 Vienna Convention on Protection of Ozone Layer. Pakistan has signed the 1992 United Nations Framework Convention on Climates Change (UNFCCC). The objective of the Convention is the stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Pakistan is also signatory of 1990 International Oil Pollution Preparedness, Response and Cooperation.”
Similarly, in a recent case titled, YOUNG DOCTORS ASSOCIATION and others v GOVERNMENT OF PAKISTAN and others (2015)36, the court other than commenting on the doctrine of Public Trust, mentioned earlier, deliberated on the term ‘sustainable development’ and made reference to URBAN 21 conference that was held in Berlin in 2000, after PEPA had been introduced. This signifies that Court does not keep itself confined to the actual definition given in the Act but would move beyond the Act to understand the parameters if so needed in order to keep the Act applicable to emerging circumstances. Though, a study titled ‘Development of Environmental Law and Jurisprudence in Pakistan done by Irum Ahsan and Saima Amin Khawaja, suggests that the courts have not made too much use of the internationally recognized environmental principles37 but the references made to up to date research and to assign meanings to the terms used under PEPA in keeping with later instruments seems to suggest, the intent to judge the matters of environmental protection in accordance with evolving international standards.
In another case, the SINDH INSTITUTE OF UROLOGY AND TRANSPLANTATION and others v. NESTLE MILKPAK LIMITED and others (2005)38, the Court noted that though an owner of the land has the right to lawful enjoyment of his property but such a right is not unfettered and is subject to certain conditions. In the present case, Nestle wanted to acquire a land for the purposes of setting up a water bottling plant which would have resulted in exploitation of the sub soil water. The Court made reference to Principle 2 of Stockholm Declaration; “The natural resources of the earth, including the air, water, land, flora and fauna especially representative, samples of natural eco systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.” It was noted in the judgment that unfettered exploitation of natural resources cannot be allowed and must be kept in check. Thus, the courts while ensuring the greater good of the society are only ready to expand but also curtail the rights where necessary.
The above discussion shows that the role of the courts in Pakistan has been important in the protection of environment. Although in the opinion of some, the courts may have stepped outside their traditional role of only declaring what the law is, by adopting an ‘expansive and evolutory’ interpretative approach. However, it needs to be kept in mind that the best of the laws may not be able to provide access to ‘justice’, due to a number of ‘roabdlocks’. One of them being the procedural bottlenecks. We have seen in the cases discussed in this paper that the courts have through various cases provided a route to the affected party to approach the courts, by allowing NGOs, and other interest groups etc., to approach the courts, on behalf of the disenfranchised and disempowered poor and vulnerable affected parties. In addition, another ‘roadblock’ so to say, has been the ouster clause in the relevant legislation; again the courts, in keeping with international judicial trend, have continued to respect legislative authority, but still managed to provide a judicial oversight to executive actions, through the use of their inherent and constitutional powers of judicial review. Thus in the presence of exclusive initial jurisdiction of environmental tribunals, superior judiciary continues to entertain writ petitions and take suo motu notices. This approach has resulted in some misgivings on part of those who feel that the traditional declaratory role of the judiciary is to apply the letter of the law only, and in their opinion this has been extended as a result of this judicial role. Though, the authors believe that judiciary as a principle, should continue performing its task of interpreting the law and avoid the perception of stepping into the domain of Legislature and Executive, it is also noted that, with regard to environmental protection, the lack of sufficient interest shown by the Legislature and the Executive has necessitated the judicial intervention in this domain. Otherwise, the environmental protection framework may have failed to achieve any significant functionality in Pakistan. It is hoped that in the future the Legislature will step in to make necessary legal changes to provide easier access to those affected by environmental degradation and the Executive will prove much more sensitive to environmental concerns and tackle them in a decidedly more robust manner. If this happens, it would obviate the need for judges to play such a role. It needs to be mentioned however, that the Executive and the Legislature are tied by the compulsions of political economy and the nature of our politics is patronage based, and therefore for the foreseeable future it is likely that the environmentalists will continue to look to the judiciary for applying the doctrine of public trust for environmental protection.
Mr. Ahmad Nazir Warraich
Mr. Muhammad Bilal Ramzan
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