The constitution of Pakistan unlike its Indian counterpart doesn’t entail any specific provisions for the promotion and protection of the environment. While the Indian Constitution Post Stockholm Declaration 1972, received the 42nd amendment resulting in the incorporation of Art 48-A, 49-A, 51-A that provided for a fundamental duty and directive principle of state policy for environmental protection and improvement. The very absence of such specific provisions in Pakistan’s Constitution paved the way for judicial activism that in turn allowed courts to look at the fundamental rights through an environmental lens with courts observing that environment and its protection were central in the scheme of constitutional rights (Imrana Tiwana v Province of Punjab 2015 )
In lieu of climate justice, the court’s jurisprudence remained driven by public interest litigation, guided by the Public Trust Doctrine (PTD) and centred around the interpretation and application of the constitutionally guaranteed right to life and dignity provided under Article 9 and Art 14 of the Constitution, 1973 respectively. Consequently, the case law that emerged reflected an attempt on the part of courts to make” basic human rights meaningful to the vulnerable sections of the community, to assure social and economic justice that is the signature tune of our constitution and sharing the burden and benefits of climate change and its impact equitably and fairly. The Supreme Court in Human Rights Case No.17599 of 2018 held that Art 9 doesn’t merely protect the right to ‘exist’ or ‘live’ but the right to live a meaningful life with a minimum standard of living.
A close analysis however reveals a mixed outcome and legal reasoning that was purely anthropocentric, to begin with, fuelled by the ecological-modernist perspective that emphasised the need for continued economic growth along with environmental regulations until recently when a non-anthropocentric approach took the centre stage, emphasising the very treatment of environmental objects as holder of legal rights that the Environment needs to be protected in its own right, for its own sake (Supreme Court in D.G. Khan Cement Company Ltd v. Government of Punjab 2021 SCMR 834)
Over the years Pakistani courts have dealt with a wide range of environmental issues ranging from air pollution, urban planning, water scarcity, deforestation, noise pollution, Oil Spill and the solutions entailed penalties and shifting or stoppage of polluting industries based on a precautionary approach leading to the recognition of the seminal principle of Environment Impact Assessment.
The thread of environmental litigation in Pakistan can be traced back to the 90s and seminal case of Shehla Zia v. WAPDA PLD 1994 Supreme Court 693 that proved to be the watershed moment, where the Supreme Court of Pakistan while applying the precautionary principle holds that the right to a clean and healthy environment as part of the fundamental right to life guaranteed in the Constitution. The case was followed by legislations such as Pakistan Environmental Protection Act 1997., specifying a mechanism of filing a complaint about environmental protection and the Pakistan Climate Change Act post-Paris Agreement
Asghar Leghari case in 2015 was another milestone in climate change litigation, whereby the Lahore High Court made history by holding that the state’s delay and lethargy in implementing the National Climate Change Policy 2012 and the Framework for Implementation of Climate Change Policy (2014-2030) offend the fundamental rights of citizens that need to be safeguarded.
The verdict in the Leghari case, other than carefully weaving together climate change, adaptation and human rights, also highlighted the potential of our courts in terms of climate change litigation. Drawing roots from the legacy of Pakistani courts and their reputation as an activist’ judiciary this claim soon found a strong foothold when a wide array of similar new petitions were filed in courts which may seem like a celebratory tale in the discourse of climate change but in reality, this picture is slightly more complex and nuanced. There is no denying the fact that the judiciary plays a pivotal role in environmental protection and the superior court’s decisions might be good rhetoric in many cases. Yet the looming question is can they become the vehicle of change? A quick view of the broad policy directions given through case law, the blurring boundaries concerning the constitutional separation of powers between executive and judiciary and judiciary’s own’ modest’ success in stemming the tide of environmental degradation highlights the fact that the entire matter to a significant degree remains an open question.
Another caveat is that it may lead to judicial overreach on the executive’s domain of policymaking and even Parliament’s domain of levying taxes, the controversial Diamer Basha dam is one such example. Such exercises at times can stunt the effective enforcement of environmental laws itself without producing any fruitful jurisprudence or impact on the environment itself. The overreach gives the judiciary a role that is overtly political which challenges the very doctrine of separation of powers and causes lengthy delays in the adjudication of other cases. It is for reasons such as these that judicial constraint resurfaced in India over time, where previously Indian courts have awarded exemplary damages for the environmental damage in their attempt to embrace judicial activism (Shriram Gas Leak Case) they began deviating from the said rule in Bhopal Gas Tragedy. Should following the footsteps of Indian Courts, Superior Courts in Pakistan also resort to judicial constraint? and if Yes, then how to address the continued environmental degradation? The answer rests in adopting a wholesome approach than some piecemeal tinkering.
The Superior Court’s power of judicial review in Pakistan allows them to decide important social, economic and political questions generally not put to judges in other countries, which itself is a slippery slope moreover the very environmental law jurisprudence developed through constitutional law domain places the primary responsibility upon the state to enhance the quality of life of its citizens, that calls for all three organs to step in. Where it’s equally important to revive the practice of setting up Green Benches in Superior Judiciary, equally needed is prompt and effective legislation and institutional arrangements and processes for the effective enforcement of that environmental legislation.
Post 18th constitutional amendment of 2010 the legislative domains of federal and provincial legislatures got redefined and the subject of ‘Environment pollution and ecology’ was assigned to provinces who then amended the federal Pakistan Environmental Protection Act 1997 and enacted it as a provincial environmental act however what is still missing is effective coordination between provinces and centre regarding the implementation of international treaties ratified by the later and policy issues. Although the 2012 National Climate Change Policy calls for the setting up of coordination committees and the 2017 Pakistan Climate Change Act seeks to provide participation to provinces in the National Climate Change Authority for combined governance, no progress has been made thus far in this regard.
The burgeoning issue of climate change calls for a ‘better’ climate agenda and the interlinked elements of reform called for addressing these gaps in climate governance, adoption of a robust approach by the Provincial Environmental Protection Departments and collective action and trust but without public education, behavioural changes, corporate responsibility and administrative accountability it will be only half the battle.
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