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Environmental Rights as Part of Fundamental Human Rights: the Leadership of theJudiciary in Pakistan

Dr. Parvez HassanSenior Partner

Hassan & Hassan (Advocates)PAAF Building

7D Kashmir Egerton RoadLahore, Pakistan

Environmental Rights as Part of Fundamental Human Rights: the Leadership of the Judiciary in Pakistan

Dr. Parvez Hassan**

A. Introduction

The United Nations Conference on Environment and Development (“UNCED”) held in Rio de Janeiro, Brazil in 1992 and popularly referred to as the Earth Summit provided a welcome impetus to Pakistan’s commitment to environmental protection and sustainable development at the national level. Prior to Rio, the military dictatorship under General Zia ul Haq had promulgated the Pakistan Environmental Protection Ordinance, 1983, an emasculated version of a comprehensive over-arching framework law drafted by the author. However, even this modest initiative had not been operationalized in its only substantive provision on the requirement of an Environmental Impact Assessment. Developed with the help of IUCN-The World Conservation Union, the National Conservation Strategy was also a major commitment made in the national development plans. But these were lofty concepts whose impact had not reached the common man of Pakistan.

At the Earth Summit in1992, Pakistan found itself in a leadership role. As head of the Group of 77, it represented the developing countries and, with the stellar and anchor contribution particularly by its respected Ambassador Jamshed Marker, Pakistan emerged as a major player at UNCED. The large national delegation comprising parliamentarians, civil servants, diplomats and leaders of civil society was to return from Rio fully committed to the importance of the mission of UNCED. In effect, environmental protection had been mainstreamed as a legitimate national issue as a direct result of Pakistan’s preparation for and role at the Summit’s extensive preparatory processes.

The post-Rio years witnessed important gains. Following a participative process involving all the important stakeholders, the Pakistan Environmental Protection Act, 1997 replaced the earlier

Some of the issues treated in this paper were earlier discussed by the author in his speech titled, “Securing Environmental Rights through Public Interest Litigation in South Asia”, Global Judges Symposium on Sustainable Development and the Role of Law, at Johannesburg, South Africa, 18-20 August 2002, organized by the United Nations Environment Program. The author gratefully acknowledges the valuable support of Mr. Azim Azfar, Associate, Hassan & Hassan (Advocates) in the preparation of this article. The author was invited to address four meetings in the four week period 8 May – 5 June 2003 at Rome (Italy), Lviv (the Ukraine), London (U.K.) and Sao Paulo (Brazil). This article was, accordingly, prepared for:

(1) Symposium on Environmental Law for Judges, Johannesburg Summit Next Steps: the Role of the Judiciary in the Implementation and Enforcement of Environmental Law, organized by the Italian Council of Judiciary and the UNEP/IUCN, in Rome, Italy, on 9-10 May 2003.

(2) Symposium on Environmental Law for Judges of Central/Eastern Europe, Caucasus and Central Asia, The Role of the Judiciary in Enforcement and Implementation of Environmental Law: A Regional Needs Assessment, organized by the UNEP/IUCN and Ecopravo-Lviv in Lviv, the Ukraine on 16-17 May 2003.

(3) School of Oriental and African Studies, London University, Environmental Law Seminar, in London, U.K., on 19 May 2003.

(4) 7th International Conference on Environmental Law, Sao Paulo, Brazil, 2-5 June 2003.

**. B.A. (Punjab), L.L.B. (Punjab), LL.M (Yale), S.J.D. (Harvard), Senior Partner, Hassan & Hassan (Advocates), Lahore, Pakistan; President, Pakistan Environmental Lawyers Association. Former Chair, IUCN Commission on Environmental Law, 1990-1996, and LEAD Pakistan, 1995-2001.

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Pakistan Environmental Protection Ordinance, 1983. Its substantive provisions reached beyond the EIA requirements to regulate industrial pollution, water, air and noise quality, to ban the import of hazardous waste, to enable “prohibitory environmental orders”, to set up Environmental Tribunals and to establish in each Province, a Provincial Sustainable Development Fund. The institutional framework of the 1983 Ordinance was also strengthened to require a high level Pakistan Environmental Protection Council (“PEPC”) at the national level chaired by the Prime Minister or his nominee for overall policy direction and supported by a Pakistan Environmental Protection Agency (“PEPA”) at the federal level and four Provincial Environmental Protection Agencies (“EPAs”) in each province of Pakistan. The Federal Ministry of Environment, established as a separate Ministry prior to the Earth Summit, has continued to be strengthened.

But, ten (10) years later, as one took stock of Pakistan’s progress in preparation for the World Summit on Sustainable Development (“WSSD”) held in Johannesburg, South Africa, in 2002, it became clear that Rio had held out a false dawn. In spite of the progress at the level of policy articulation, law-making and institution-building at federal and provincial levels, the promise of these initiatives has not translated into implementation and compliance.1 The National Environmental Quality Standards announced by the PEPC in 1993, ten years later, are still un-enforced. Like in most countries, particularly developing, implementation has been handicapped by lack of political will, lack of financial, technical and human resources and lack of requisite capacity.

But while Pakistan is overwhelmed with the constraints that have impeded enforcement of the new environmental order, the judiciary in Pakistan has played a pivotal role in announcing and safeguarding environmental rights as basic fundamental human rights protected by the country’s Constitution. This fascinating story needs telling.

The Stockholm Conference on the Human Environment, 1972, provided a new orientation to many national commitments at the level of policies, laws and, in some cases, even Constitutions. But the Constitution of Pakistan, 1973, which has continued to substantially survive repeated Martial Laws does not prioritize environmental protection and sustainable development, as do many post-1970 Constitutions of other countries. Its only mention of “ecology” is in the context of enabling both the Federal Government and the Provincial Governments to take legislative initiatives in this field and providing for the primacy of the Federal initiative in case of conflict between Federal and Provincial initiatives. While lacking in an environmental orientation, the Constitution has effective provisions on human rights enshrined as Fundamental Rights with effective powers of the provincial High Courts under Article 199 to enforce them directly. And, judicial activism found an opening in Article 184(3) of the Constitution which provides:

Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.

The intellectual leadership and creativity of Justice P.N. Bhagwati that set useful precedents in Indian jurisprudence also facilitated a similar monumental dedication by Justice Saleem Akhtar who served as a Judge of the Supreme Court of Pakistan from 1991 to 1997.2 This paper will highlight the role of Pakistan’s judiciary led by Justice Saleem Akhtar in promoting the environment. It is important to acknowledge the role of the leaders as it is from their pioneering 1 See generally Parvez Hassan, “From Rio 1992 to Johannesburg 2002: A Case Study of Implementing Sustainable Development in Pakistan”, (2002) 6 Singapore Journal of International & Comparative Law, at 683-722. 2 See generally Parvez Hassan, “Judicial Activism Toward Sustainable Development in South Asia”, (2003) 31 Pakistan Law Journal 39.


efforts that new frontiers are explored and the path is made so much easier for all those who will follow.

Although the focus of this essay is on legal developments in Pakistan, it is important to view these developments as embedded in a regional jurisprudence distinguished by its broad and progressive commitment to the promotion of environmental rights. What is central to this judicial approach is an expansive interpretation of “right to life” constitutional provisions to include the right to a decent environment and a dramatic re-conceptualization of the procedural law of locus standi to allow wide access to persons and organizations acting in the public interest. Indeed, as noted by many commentators, the judiciary of South Asia leads the world as guarantors of legal protection to sustainable development.3 Below, we trace the genesis of the Pakistani judiciary’s bold role in creating adequate space for environmental rights and highlight current trends in how the courts are charting their way through the unique challenges posed by environmental concerns.

B. The Quest for Human Rights

The roots of the Pakistani’s judiciary’s receptivity to environmental rights lie in the recognition that they are yet another facet of human rights, which it is the special duty of the judiciary to protect. As protection of human rights was channeled through public interest litigation in South Asia, this form of litigation came, over the years, to be inextricably linked to the environmental movement in the region.4

1. Leadership of the Indian Courts

Public interest litigation arose first in India, where an activist Supreme Court, appalled by the nature and extent of human rights abuses, allowed “representational capacity” to parties willing to amplify the grievances of the most vulnerable sections of society.5 Judgments of Indian courts tend to be regularly cited in Pakistan, and in the area of public interest litigation as well, the seeds sown by the Indian judiciary found a very hospitable climate, as is evident by the following comments of the Lahore High Court in State v M.D. WASA:

The rationale behind public interest litigation in developing countries like Pakistan and India is the social and educational backwardness of its people, the

3 See Nicholas A. Robinson, “A Common Responsibility: Sustainable Development and Economic, Social and Environmental Norms”, (1999) 4 (3) Asia Pacific Journal of Environmental Law 195, at 195. Robinson’s assessment of the leadership of the South Asian judiciary in the field of environment is echoed by Menski who makes the “poignant observation that today, South Asia leads the world in public interest litigation, not America or Europe”. See Werner Menski, Ahmad Rafay Alam and Mehreen Raza Kasuri Public Interest Litigation in Pakistan (Pakistan Law House, Karachi, 2000), at 109. 4 For a detailed review of the intensive growth of public interest litigation in South Asia, see Parvez Hassan, “Securing Environmental Rights through Public Interest Litigation in South Asia”, Global Judges Symposium on Sustainable Development and the Role of Law, at Johannesburg, South Africa, 18-20 August 2002, organized by the United Nations Environment Program.5 As Mehta notes, “In contrast to “soft options” by the administrative bodies, the Supreme Court of India has taken to strict enforcement of laws and thus has acted as the saviour of people’s rights. This has been achieved through a positive interpretation of the fundamental rights, imposing affirmative obligations on the state in the implementation of its duties, as laid down in the “Directive Principles”. This enabled the court to elicit positive action from the state agencies towards enforcement of environmental rights.” Mahesh Chander Mehta, “Making the Law work for the Environment”, Asia Pacific Journal of Environmental (1997) 2 (3 & 4) 349, at 352.


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.6

The initial foray in India began with S.P Gupta vs. Union of India7; although the facts in what came to be known as the “Judges Transfer case” were quite bland, the Supreme Court laid down the conceptual foundations that were to prove so fecund later:

It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law…and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court of relief, any member of the public can maintain an application for an appropriate direction, order or writ….8

Two years later, in Bandhua Mukti Morcha vs. Union of India9, the Indian Supreme Court, again through Justice Bhagwati, applied its earlier formulation to the repugnant institution of bonded labour in the country. A pragmatic approach to procedure can be sharply seen in the fact that the petitioners, a group dedicated to the eradication of this modern form of slavery, were allowed to treat their letter as a properly instituted writ petition. This pragmatism was seen not only in the rules governing admissibility but also in the approach taken for the management of the case, which involved the appointment of an investigative commission (to report on the conditions of labourers) that was to function under the supervision of the Court. In his judgment, Justice Bhagwati cautioned against an over-zealous commitment to the adversarial process:

[s]trict adherence to the adversarial procedure can sometimes lead to injustice, particularly where the parties are not evenly balanced in social or economic strength….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….if we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the Constitution.10

Environmental action groups in India took full advantage of the relaxation in the rules of standing and procedure, and the resultant public interest litigation gave birth to a robust case law on the public trust doctrine,11 the precautionary principle and polluter pays principle12,

6 2000 CLC 471 [Lahore]. 7 AIR 1982 Indian Supreme Court 149.8 Id. at 188.9 AIR 1984 Supreme Court 802.10 Id, at 815. 11 M. C. Mehta v. Kamal Nath (1997) 1 SCC (Supreme Court Cases) 388.12 Vellore Citizens Welfare Forum v. Union of India (1966) 5 SCC (Supreme Court Cases) 647.


intergenerational equity13 and incorporation of international treaties in domestic law.14 The fact that the Indian Constitution recognized environmental rights15 was tremendously helpful in the spawning of environmental litigation but the stimulating role of the remedial regime introduced by the Supreme Court cannot be over-emphasised.16 As Nomani notes:

[p]ublic interest litigation has had a galvanizing effect on account of the procedural attraction of its low cost, speedy hearing, low evidentiary compliance, comprehensive remedy and non-appealibility. 17

2. The Pakistani Judiciary adopts Public Interest Litigation

As in India18, the Pakistani courts were also heirs to a tradition of adversarial litigation, but in common with their Indian counterparts, they were also willing to modify their approach to deal with the harsh human rights conditions prevalent on the ground. The opening occurred in 1988 when, in Benazir Bhutto v. Federation of Pakistan,19 the full bench of the Supreme Court of Pakistan allowed the Co-chairperson of a political party in Pakistan, Ms. Benazir Bhutto to directly file a constitutional petition challenging an amendment in the country’s election laws. The breakthrough was significant because under the “aggrieved party” test laid down in Article 184, the political party and not any one person was the object of the impugned law. Reliance was placed on the Indian Supreme Court decision in the Gupta case supra, and (by analogy) on the ‘next friend’ provisions in the existing rules of civil procedure:

13 Rural Litigation and Entitlement Kendra v. State of U.P. (1987) Supp. SCC 487 (India). 14 People United for a Better Living in Calcutta v. State of West Bengal 1993 AIR (Cal) 215. 15 Article 48-A states, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. Moreover, in Part 4-A of the Constitution, Article 51 A (G) states that, “It shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures”. 16 Nomani has commented on the wide array of beneficiaries of a liberal procedural regime: “Out of the commitment to deep ecological values, environmentalism and eco-centrism, the Indian courts have held that the creation of a reliable and effective rights based approach would not only help to ensure the sustenance and survival of indigenous and marginalized communities, but also the well being of cosmic future generations…. Essentially being a subaltern phenomenon, a wide spectrum of social and individual groups such as lawyers, environmentalists, action groups, forest dwellers, citizens fora, tribal societies, consumer centers, feminist groups and voluntary organizations have thrown open their grievance before the higher courts… Emboldened by this judicial liberalism, India’s robust environmental movement in an adversarial atmosphere of repressive policing and bureaucratic red tape has ushered in a third generation of human rights culture. See Md. Zafar Mahfooz Nomani, “The Human Right to Environment in India: Legal Precepts and Judicial Doctrines in Critical Perspective”, (2000) 5 (2) Asia Pacific Journal of Environmental Law 113, at 114-115.17 See Nomani, supra note 16 at 134. 18 Dean notes that, “This method of expanding and empowering existing legal tools as a means of achieving social justice was undoubtedly a result of the wide reading the court itself attributed to the remedial powers conveyed by Article 32. The inherent power conveyed to the Supreme Court by Article 32 was discussed in the case of M. C Mehta v. Union of India [1987 AIR (SC) 1086] These powers, already read widely by preceding courts, were not limited to merely being able to issue a direction, an order or writ to enforce the fundamental rights, but included: “[A]ll incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realization of this constitutional obligation that this Court has in the past innovated new methods and strategies for the purposes of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning”. See Michael Dean, “The Revolution in Indian Environmental Jurisprudence”, (2000) 5 (3) Asia Pacific Journal of Environmental Law 291 (review of C. M Abraham, “Environmental Jurisprudence in India”, (Kluwer Law International, The Hague: 1999)19 PLD 1988 SC 416.


[a]fter all the law is not a closed shop and, even in adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under a disability….why not then a person, if he were to act bona fide, activise the Court for several reasons. This is what public interest litigation seeks to achieve as it goes further to relax the rule on locus standi….20

As had happened earlier in India, the relaxation of procedural law, provided an effective opening for the championing of human rights causes. Even the cause of action in the first human rights public interest petition (Darshin Masih v the State21) had obvious parallels to the Indian case, Bandhua Mukti Morcha vs. Union of India22, as the Supreme Court invoked jurisdiction on the basis of a telegram sent by a group of brick kiln bonded labourers and their families. Just as the ruling in Bandhua Mukti Morcha had relied on the earlier success in Gupta, the Pakistani Supreme Court held that jurisdiction was a permissible extension of the principle laid down in the Benazir Bhutto case to the facts of the instant case:

Such extension/s would depend on the facts and the circumstances of each case and nature of public importance involved and importance thereof. 23

Foreshadowing later developments in this type of litigation, the Court appointed a Committee to investigate the complaints and also highlighted the non-adversarial nature of the proceedings:

It needs to be observed and clarified that all concerned in this case assisted the Court ungrudgingly throughout the hearing which is spread over several weeks and many hours of formal Court’s sitting. The proceedings have not been treated as of adversary character. The labourers, employers, and their organizations projected their views with candidness and honesty of purpose representing their respective interests. It is in this context that it has to be further clarified that no party as such would be deemed to have been recognized as “complainant”, “accused” or “contesting party”; nor the interim decision shall be treated as the success or failure in any form, of any person, party or institution.24

In subsequent years, the Court used the medium of public interest litigation to a broad spectrum of social ills from discriminatory laws and regulations affecting women and children to the humiliating treatment of prisoners.25 An analysis of the origin of these cases reveals three major

20 Id. at 490. The Indian Supreme Court had drawn the same analogy in S.P Gupta, supra note 7. 21 PLD 1990 Supreme Court 513. Owing to the nature of the case and the desire to extend its impact, the Supreme Court took the unusual step of delivering its judgment in the national language, Urdu, since the formal language of the court, English, is not spoken or understood by the vast majority of the country’s population. 22 See Bandhua Mukti Morcha supra note 9. 23 See Darshan Masih supra note 21, at 554. 24 Id., at 534. 25 Since all these cases are not reported it is convenient to mention the examples given by Dr. Nasim Hasan Shah, a former Chief Justice of the Supreme Court of Pakistan. In an article published in the Pakistan Law Digest, Dr. Shah states that the courts of Pakistan have used public interest litigation to do away with “ (1)malpractices in our educational system; (2) afford protection to women of any origin (Pakistan or Foreign) subjected to any sex related offences and to stop the menace of obnoxious calls to them; (3) protect the property rights of female heirs/owners by issuance of directions to the Attorney-General to take steps to amend the relevant existing law or to cause fresh legislation to be initiated for securing their rights; (4) prevent exploitation of the children by restraining the authorities from taking them to public places for reception of dignitaries. It has also ruled that children shall not be forced to undertake any such work which under the law has only to be done by the labour force; (5) suspended all restrictions imposed against Nurses working in Military Hospitals and Air Hostesses of Pakistan International Airlines to getting married while in service; (6) stayed public hangings as being contrary to the Constitutional


sources: letters written to the Chief Justice of the superior courts of Pakistan, newspaper reports (which become the basis of suo motu actions by the courts), and cases filed by petitioners that raise questions of human rights.26 Both the diverse origins of the litigation and the catholic nature of the causes adjudicated show the acute concern of the Pakistani judiciary to perform their functions towards advancing justice so far as circumstances and their powers permit.

3. A New Approach to Case Management

As in India, the Pakistani courts had to develop a novel approach with respect to both the initiation of cases (for example, recognizing an epistolary jurisdiction) and their subsequent management since the traditional system of pleadings could not easily accommodate this new form of litigation. Menski et al. note that there are four ways in which public interest litigation differs from traditional adversarial litigation: “First the court may be approached in a flexible way for the petition to be filed, for example the court may accept a letter as a writ petition rather than insisting that the normal procedure be followed. Second, locus standi is usually expanded and construed in its widest possible meaning to include any bona fide petitioner rather than just a narrowly defined category of ‘aggrieved person’. Third, 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. Finally, the nature of remedies awarded is different from what we see in ‘normal’ constitutional petitions, with long-term aims including enforcement under the supervision of the courts taken into consideration. The aim of the exercise is to achieve better justice, so much is clear.”27

As the human rights cases typically involved a factual and sometimes technical enquiry, the use of expert commissions became the norm, whose findings could become the basis for further action. The system that emerged has been described by Hussain as follows:

[i]n such like cases the judiciary, in the interest of justice, deviated from its set course of procedure and invented new and creative methods of finding facts and discovering the truth. The Courts did so by launching an investigation into the matter. A variety of techniques, ranging from calling of official record to deputing experts to probe and constituting socio-legal Commissions to investigate the matter were employed. The court then examined the reports submitted by the experts and Commissions and decided the case accordingly. In such cases the Court follows a certain pattern. It regards the report as prima facie evidence and supplies its copies to the parties for rebuttal on affidavit. The court then considers the report together with affidavit, if any, and proceeds to adjudicate the issues involved in the case. As is clear this procedure is new and imaginative and is

provisions guaranteeing dignity of man; (7) issued guidelines for controlling the traffic muddle in Karachi; (8) checked the practice of extortion of money by Railway staff from the passengers traveling in the Samjhota Express (train running between Pakistan and India) and appointed a Commission of Advocates and Human Rights activists to monitor the situation; (9) directed the Federal and Provincial Governments to stop making appointment against the retirement rules, a practice which was violative of fundamental right of equal opportunity for all citizens to enter upon a profession; and (10) issued guidelines to be observed by the authorities to check environmental pollution caused by fumes of motor vehicles, deforestation, open sewerages, dumping of nuclear waste etc. “, see Dr. Nasim Hasan Shah, “Public Interest Litigation as a Means of Social Justice”, 1993 PLD Journal Section 31, at 33. 26 See Nasim Hasan Shah, supra note 25, at 32-33. 27 See Menski et al. supra note 3, at 65.


altogether different from the traditional rules of procedure under the adversarial system of adjudication. 28

C. Environmental Protection through Public Interest Litigation

Once a general jurisdiction tailored to human rights abuses was established along with techniques for managing these cases, it was expected that in due course the courts of Pakistan would be asked to exercise it with respect to all manner of public injury including threats to the environment. The first public interest litigation in the field of the environment arose as early as 1990 in the case titled Roedad Khan vs. Federation of Pakistan and 41 others, Writ Petition No. 642 of 1990 filed by the Margallah Hills Society in the Lahore High Court, Rawalpindi Bench and in which the author acted as counsel. The complaint was that the construction of a government agency building, the quarrying activities carried out by a private company and the stone crushing activities in the Margallah Hills National Park involved breaking up and clearing of land, felling of trees and discharge of effluents which was polluting the environment of the National Park and posed a serious health hazard to the residents of Islamabad. It was contended that this would result in a depletion of the natural habitat, dislocation of the wild life of the area and cause widespread ecological imbalance and degradation. Although no specific orders were passed in this writ petition, the publicity generated by the petition resulted in remedial action being taken by the Government. The outcome in the case, which arose without a formal order of the court, demonstrates the powerful role that the media can play as a watchdog of environmental issues.

A year later, in 1991, residents of a locality in Lahore filed a Writ Petition 29 against the Lahore Development Authority and the proprietors of certain asphalt plants. The intervention of the Court was sought for getting these plants removed from their sites in Lahore on account of the serious health hazard they were posing for the residents. This was the first environmental case in which the court appointed a commission; the mandate of the commission, chaired by the author, was to visit the area, verify the complaints and suggest to the Court the measures to be adopted.

Following a visit to the area, the Commission reported to the Lahore High Court that:

The air-borne pollutants, from the operational activity of the plant, are dispersed over a large area. ... [and that these pollutants were emitting] toxic substances like sulphur dioxide, nitrogen oxides, hetrocyclic compounds and hydrocarbons besides colossal quantities of air-borne fine dust emitted through the crush unloading at the site and during its processing at the plant.

These findings prompted the Commission to request the Court for an affirmative ruling:

The continued operation of these plants is inconsistent with the rights of the adjourning residential areas to a clean and healthy environment. The residents are continually exposed to the obnoxious fumes and the potential health hazards unleashed by these asphalt plants. These should be removed from the site and relocated in areas where there is no danger to the environment. Even at the reallocated sites, the activities of the plants

28 Dr. Faquir Hussain, “Public Interest Litigation in Pakistan”, PLD 1993 Journal Section 72, at 80.29 W.P. No. 9297 of 1991.


should be monitored with a view to minimize the impact of their environmental degradation.

The entire exercise of agitating the matter before the Court proved eminently useful because as a result of this report, the Director General, Lahore Development Authority passed orders for the shifting of the asphalt plants. The subsequent years saw a fair number of environmental petitions filed as human right cases, with mixed results, depending on the complexity of the situation and the interest shown by the particular bench in exercising its supervisory jurisdiction. In June 1991, a Constitutional Petition30 under Article 199 of the Constitution was filed by the Society for Conservation and Protection of Environment (SCOPE), an environmental NGO in Karachi, praying for an issuance of a writ to stop the construction of a highway through the Kirthar National Park31 (the "KNP"). The KNP – Indus Highway issue was perhaps the first high profile case in Pakistan where environmental concerns were in conflict with a major national development project. The Indus Highway Project was first conceived in the early 70’s as a strategic highway to shorten the distance between the cities of Karachi and Peshawar and to bring economic development to the depressed regions on the west bank of the Indus. International Union for Conservation of Nature and Natural Resources (IUCN) carried out an urgent environmental review of the project and stated in its report that the effects on the environment and the ecology of the KNP greatly outweighed the economic benefits to be derived by it. Before the court could consider this complaint, the Prime Minister intervened. At the end of June, the Prime Minister announced that he had directed the Indus Highway Authority to find an alternative route. The rerouting was confirmed in mid September 1991 by the National Council for the Conservation of Wildlife (the federal government body concerned with Wildlife) and by the Prime Minister through announcements in the press, television and radio.

In the year 1991, SCOPE filed two writ petitions 32 in the Sindh High Court relating to separate permissions given to foreign nationals to hunt the Houbara Bustard33. The background to these petitions is the custom of Middle Eastern nationals to visit the country each winter on the invitation of the Ministry of Foreign Affairs. The dignitaries come equipped with latest computers, radars, weapons, equipped vehicles and priceless falcons trained specifically for the annual Houbara hunt. Although Houbara has been listed as a protected species in provincial wild life legislation, Sindh Wildlife Protection Ordinance, 1972 (the “SWPO”) and its hunting is banned under law, neither of these petitions sought overriding directions from the Court to the government to enforce its own laws in connection with the hunting of Houbara Bustard. The judgments dealt only with specific hunting permissions; nevertheless, due to these petitions, the number of hunting permits for the Houbara have dropped.

The next year (1992) saw further environmental litigation by concerned groups. In 1992, a welfare society, Karachi Administration Women’s Welfare Society (KAWWS) wrote a letter to the Supreme Court stating that the health hazards in the use of open storm water drains for the disposal of sewerage and the contamination of water from sewerage resulting from damaged 30 An unreported case discussed in IUCN, Environmental Public Interest Cases in Pakistan, 59-65 (1998).31 Kirthar National Park was declared a wildlife sanctuary in 1974. It is the largest National Park in Pakistan. The park is an area of outstanding natural beauty and cultural heritage and home to a variety of mammals, reptiles and birds of the arid subtropics of South Asia. The Park is also home to superb archeological sites and local human population with strong tribal traditions.32 An unreported case discussed in IUCN, Environmental Public Interest Cases in Pakistan, 81-89 (1998).33 The Houbara Bustard (Chlamydotis undulata) is a brown buff coloured bird inhabiting harsh, arid plains and steppe habitats with a little cover except for a few hardy desert shrubs. Each winter, thousands of these birds migrate to Pakistan from Central Asia and the former Soviet Union in search of warmer climates to roost and breed. Due to intense hunting pressure, however, the Houbara Bustard is a threatened bird specie in Pakistan today.


adjoining water and sewerage pipes are a violation of the fundamental rights of the people living in the area. Exercising its epistolary jurisdiction developed earlier, the Supreme Court converted the letter into a Human Rights Case34. Once again, the appointment of an independent expert was deemed necessary by the Court to survey the area, recommend solutions and monitor the work done. The Supreme Court constituted a Commission which reported that the complaints in the petition were correct. The Court directed remedial measures including the repair of the water and sewerage pipes. Apart from the growing activity of action groups, the Courts continued their practice of suo motu proceedings to check egregious trends in the nation’s environmental situation. In 1992, the Supreme Court passed an interim order for taking effective and remedial measures in order to streamline the process of checking vehicles as a first step in eliminating air and noise pollution from Karachi.35 Overall, the courts demonstrated a catholic receptivity to tackling all manner of environmental issues, from urban pollution to parkland and wildlife preservation. In 1993, two Constitutional Petitions36, under Article 199 of the Constitution were filed by SCOPE, World Wild Life Fund (WWF) and one Syed Kamal Ahmed (a B.Sc. student undertaking research at Haleji lake) against the Karachi Water and Sewerage Board (KWSB), which is responsible for the management of the Haleji Lake37 and for auctioning the commercial fishing rights for the Haleji Lake sanctuary. The environmental action groups met with success as the Court ordered against large scale commercial fishing to protect the sanctuary status of Haleji Lake. Although the discussion above highlights the receptivity of the courts towards granting environmental remedies in appropriate cases, the lack of a conceptual apparatus meant that the outcome (and even the initiation and admission) of the cases would depend, much more than in ordinary matters, on the turn of mind of the individual members of the bench. An intuitive concern for human rights is fine as far as it goes, but as a matter of legal principle, it is uncertain and malleable in its application. Would an activist judiciary always be at hand to carry the baton forward? What was clearly needed was a grounding of environmental rights in “hard law” that would delineate the scope of the rights and remedies and unleash the potency of the precedent mechanism in generating future results. Fortunately, the environmental community in Pakistan did not have to wait long for this development to take place, as the Supreme Court took a major leap forward in 1994 and placed environmental rights securely within the framework of the highest law of the country, its Constitution of 1973. As the discussion below shows, given the Constitution’s virtual silence on environmental issues, the victory was at no time obvious, which made the eventual result all the more gratifying. It was a privilege for the author to have been the petitioner’s counsel in the case and to have the immense good fortune of presenting novel arguments before a bench ready to be creative and innovative in what it perceived to be a matter of national importance.

34 Human Rights Case No. 9-K/1992. An unreported case discussed in IUCN, Environmental Public Interest Cases in Pakistan, 59-65 (1998).35 In re: Pollution of Environment Caused by Smoke, Emitting Vehicles, Traffic Muddle H.R. No. 4-K of 1992, 1996 SCMR 54336 Nos. CA 164 – K/93 and CA 206-K/93. Unreported cases discussed in IUCN, Environmental Public Interest Cases in Pakistan, 49-57 (1998).37 Haleji lake covers an area of 1704 hectares and provides refuge to a variety of migratory birds fleeing from Siberian winter to the more hospitable climate of the Indus Flyway. The Sindh Wildlife Protection Ordinance, 1972 granted Haleji lake the protected status of wildlife sanctuary. Today it is recognized as the second most important wetland site in the sub-continent after Bharatpur in India. As far back as 1975, the government of Sindh decided that fishing at the lake be stopped if its educational and ornithological value is to be preserved.


D. The Catalytic Role of Shehla Zia 38

Whereas draftsmen of recent constitutions have had an opportunity to include environmental rights within the special class of protected fundamental or basic rights39, this opportunity is not easily available to countries that drafted their constitutions at a time when awareness of these rights was neither prevalent nor were these rights matters of great priority. The Constitution of Pakistan, 1973 is an example of such a constitution where environmental rights are notably absent from the familiar catalogue of rights to equality, religion, and property.40 The only reference to the environment is in a schedule to the Constitution that says that “ecology” can be something that can be legislated on both by the provinces as well as by the Federation. There are no directives of state policy or fundamental rights concerning the environment.

This absence of specific treatment of environmental concerns posed a serious problem to a group of petitioners who wanted to challenge the construction of a high voltage grid station in a residential area in the Pakistani capital, Islamabad. The residents were apprehensive of the public health effects of electro-magnetic radiation posed by the proposed grid station and were also concerned at the violations of the city’s much prized green belt regulations. The author, who was the counsel to the petitioners, had to draw on the extensive environment-related case law in India on the constitutionally-protected “right to life” as including and embracing a “quality” of life. The fact that the Pakistan Constitution, additionally, protected the “right to dignity” (Article 14) was urged as another important consideration to broaden the scope of the right to life in Article 9.

What happened in Shehla Zia v WAPDA was not a result that we could normally have had in a country where there was a lot of environmental legislation. The Supreme Court came out with very positive results, it knocked down the hurdles of right to sue, entertained the application and accepted the petition and thus made a monumental judgment. What the law makers and the executive leadership of the country, could not do over the course of several decades, the judiciary was able to start with a single decision.

In terms of legal consequences, the first major result was that the right to a quality of life was held to be guaranteed by the Constitution:

The word life has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities or facilities which a person in a free country is entitled to enjoy with dignity, legally and constitutionally. 41

The receptivity of the Court to the precautionary principle covered in Principle 15 of the Rio Declaration on Environment and Development, 1992 was another significant advance. The

38 PLD 1994 Supreme Court 693.39 See for example The Constitution of Mali 1992 which provides that, “Every person has a right to a healthy environment. The protection and defence of the environment and the promotion of the quality of life are a duty for all and for the State”. Similar provisions exist in the Constitution of Congo, 1992 and the Constitution of Vanuatu, 1980. In the South Asian context, the Constitution of India imposes a constitutional duty to protect the environment on the state. 40 Although Pakistan was to play a leading role in the Rio Earth Summit in 1992, it was barely visible in the United Nations Stockholm Conference on the Human Environment in 1972 for it had just come out of the trauma and shame of the war of secession that led to the creation of Bangladesh in 1971. This may also explain the absence of environmental provisions in the 1973 Constitution. 41 See Shehla Zia, supra note 38, at 712.


counsel of the petitioners took the Supreme Court through an extended personal report of Pakistan’s leadership, as the chair of the Group of 77, on behalf of the developing countries at the Rio Earth Summit in 1992 and of its role as one of the principal architects of the Rio success. The historical exposition became a part of the court’s judgment:

The concerns for protecting environment were first internationally recognized when the declaration of United Nations Conference on the Human Environment was adopted at the Stockholm on 16-6-1972. Thereafter it has taken two decades to create awareness and consensus among the countries when in 1992 Rio Declaration was adopted. Pakistan is a signatory to this declaration and according to Dr. Parvez Hassan although it has not been ratified or enacted, the principle so adopted has its own sanctity and it should be implemented, if not in letter, at least in spirit. 42

The Court readily accepted the thrust of these submissions; while recognizing the fact that the Rio Declaration was not a formal part of Pakistani law, the Court said that it commanded respect as a major international treaty of broad reaching significance for human progress:

The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensual declaration had been sorted out. Environment is an international problem having no frontiers creating trans-boundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations when dealing with environmental problems.43

With respect to the precautionary principle adopted in the Rio Declaration, the Supreme Court approvingly, declared:

[i]t would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence. According to it if there are threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. It enshrines the principle that prevention is better than cure. It is a cautious approach to avert a catastrophe at the earliest stage. 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. One should not wait for conclusive finding as it may take ages to find it out and, therefore, measures should be taken to avert any possible danger and for that reason one should not go to scrap the entire scheme but could make such adjustments alterations or additions which may ensure safety and security or at least minimize the possible hazards.44

42 Id. at 710.43 Id. at 710.44 Id. at 710-711.


Respect for sustainable development can also be gleaned from the following passage where the Court stated that the energy needs of a third world country, though essential, cannot be a justification for injurious projects:

One cannot ignore that energy is essential for present-day life, industry, commerce, and day-to-day affairs. The more energy is produced and distributed, the more progress and economic development become possible. Therefore, a method should be devised to strike balance between economic progress and prosperity and to minimize possible hazards. …our need is greater as it is bound to affect our economic development, but in the quest of economic development one has to adopt such measures which may not create hazards to life, destroy the environment and pollute the atmosphere. 45

In its order, the Supreme Court gave significant relief to the petitioners by staying the construction of the grid station until further studies were done to establish the nature and extent of the threat posed by electro-magnetic radiation emitted by power plants. Drawing on the experiences of the Indian courts, the Supreme Court set up a commission of experts to study the technical dimensions and to submit a report in this respect. The public utility concerned was directed to make a public-friendly administrative approach a norm in its future work:

WAPDA is directed that in future prior to installing or constructing any grid station and/or transmission line, they would issue public notice in newspapers, radio and television inviting objections and to finalise the plan after considering the objections, if any, by affording public hearing to the persons filing objections.46

As Akhund and Qureshi note:

The Shehla Zia vs. WAPDA case sets out two of the most critical foundations of environmental law in Pakistan. First, by virtue of the broad meaning of the word “life” as contained in Article 9 of the Constitution, together with the requirement for dignity of man contained in Article 14, the fundamental right to an unpolluted environment has been established. Secondly, the case established the application of the precautionary principle where there is a hazard to such rights.47

E. Developments after Shehla Zia

45 Id. at 711.46 Id, at 715. 47 Nelma Akhund and Zainab Qureshi, You Can Make a Difference- A Lawyer’s Reference to Environmental Public Interest Cases in Pakistan (IUCN, Karachi, 1998), at 13. Shehla Zia has attracted a great deal of national and international comment. Okidi in particular notes how the case reinforces the need for lawyers to draw on international scholarship in presenting their cases: “This fact enjoys clear testimony in the opinion of the Supreme Court of Pakistan in Shehla Zia v. WAPDA, where the profuse citation of scholarly literature confirms the readiness of the national courts to draw on research results from various countries to support their decision. But it underscores one additional point, namely that the quality and wide acceptability of court decisions may also reflect the quality of the plaint and professional literacy of the counsel for the plaintiff. The easiest task for the courts is to follow precedents. However, it is the compelling quality and arguments in a plaint that may leave a court with no option but to set new precedents. In the above case, the counsel for the plaintiff assisted in the progressive development of environmental law”, Ben Boer, Koh Keng-Lian, C. O. Okidi and Nicholas A. Robinson, “Training the Trainers Program”, (1999) 4 (2) Asia Pacific Journal of Environmental Law 175, at 181. For detailed background information to the Shehla Zia case supra, see Osama Siddique, “Public Interest Litigation in the Wake of Shehla Zia versus WAPDA: The Cast Story”, in Public Interest Litigation: Shehla Zia versus WAPDA (SDPI), at 7.


Although Shehla Zia was only an interim judgment (and the final outcome in the case is still awaited), it has been cited with approval in many subsequent cases both laterally in the Supreme Court and in the courts below. In General Secretary Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore48, which came up for hearing in the same year, the Supreme Court, citing Shehla Zia stated that “The right to have unpolluted water is the right of every person wherever he lives”.49 In this case, the Court also took the opportunity to reiterate its openness to procedural constraints in public interest litigation cases and the broad and flexible powers it enjoys under that head:

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 Court has vast power, under Article 184 (3), to investigate into questions of fact as well as independently by recording evidence, appointing a commission or any other reasonable and legal manner to ascertain the correct position.50

This was yet another case in which the Supreme Court appointed a five member Commission headed by the author, to inspect the stream and reservoir supplying the Khewra region to ensure that water supplies were not being polluted by effluents of one of the mines operating in the areas and to recommend methods of preventing further damage. The Commission undertook a detailed visit of the area during which, apart from inspecting the site, it also conducted hearings involving the parties to the case, the mine operators and members of the general public in the area. In subsequent months, laboratory tests and maps of catchments areas were procured, and two lists were prepared, one to identify mines recommended for closure and the other for those which should be allowed to continue. Notwithstanding minority dissensions concerning who shall assume liability for the remedial operations and whether the matter was amenable to Federal or Provincial jurisdiction, the Commission kept the Supreme Court informed through interim reports and also submitted its final report. This case shows that with the help of multi-disciplinary and inclusive teams working against a background of court appointed deadlines, it is possible to make progress in contentious and technical issues. At the very minimum, research is done and all shades of opinion are considered, and all of this becomes a part of the public record that can be used when necessary and expedient. The media publicity that often accompanies court hearings in important matters also helps to focus attention on issues that might otherwise be neglected.

In recounting the above achievements, it is fair to say that Pakistan had found its Bhagwati in Justice Saleem Akhtar who through his judgments, including those in Shehla Zia and the Salt Miners cases supra, inducted the judiciary as a committed member of Pakistan’s quest for environmental protection and sustainable development.

The impetus provided by the Supreme Court began to drive results in the country’s High Courts as well. In Pakistan Chest Foundation v Government of Pakistan51, the petitioners had filed a writ petition with the aim of stopping tobacco advertisements on Pakistani television. The Lahore High Court, while accepting the writ petition, brought the case within the ‘right to life’ principle enunciated in Shehla Zia:

48 1994 SCMR 2061.49 Id., at 2070.50 Id. at 2071.51 1997 CLC 1379 [Lahore].


Applying the principle of law enunciated in Shehla Zia’s case (supra) to the facts and circumstances of the present case, the citizens of this country and particularly the younger generation are entitled to protection of law from being exposed to the hazards of cigarette smoking, by virtue of the command contained in Article 4 (2) of the Constitution. 52

The reliance on Shehla Zia has not been restricted to environmental petitions. In Benazir Bhutto v President of Pakistan53, the political abuse of wire-tapping was described as an assault on the ‘right to life’ provision in the Constitution:

With this [Shehla Zia] definition of the word ‘life’, one would not deter to state that telephone-tapping and eaves-dropping mar the protection afforded and guaranteed to the right to life.54

The influence of Shehla Zia on Pakistani environmental jurisprudence continues to this day as reflected in Anjum Irfan v LDA55, a case in the Lahore High Court, concerning the setting of air and noise pollution standards under the Pakistan Environmental Protection Act, 1997. A public spirited citizen had brought the following alarming facts to the court’s attention:

…according to the study carried out by the Housing and Physical Environment Planning Department, Government of the Punjab, 98% of rickshaws and 77% mini-buses emit smoke which is beyond permissible limits and round the clock increase pollution in the air; more than 212 million gallons water is being drained out to River Ravi and canal which is untreated and causing immense pollution; quantum of noise pollution can be gauged from the fact that normal level in which human conversation takes place is 6 decimal and the maximum level to be endured by human beings is 90 decimal; respondents are not discharging their statutory duties in accordance with law.56

Undaunted by the broad canvas put before it, the Court proceeded to appoint a technical expert and five amicus curiae (including the author) to expand on the various facets of the case. The Court’s appointment of the amicus curiae’s illustrates the flexible and pragmatic approach of the judiciary tackling environmental subjects. This case also illustrates the need for building a strong cadre of environmental lawyers that may assist the Court where legal exposition is necessary. On the facts before it, the author informed the court that in the absence of framing of rules and appropriate notifications to local authorities, the provision of the Pakistan

52 See Pakistan Chest Foundation, supra note 51, at 1425.53 PLD 1998 Supreme Court 388. 54 Id. at 619.55 PLD 2002 Lahore 555. 56 See Anjum Irfan, supra note 55, at 561. Mehta’s comments on trends in the Indian jurisdiction are equally apposite to Pakistan: “Despite various legislation, the environmental scenario has not changed. The main reason for their failure to provide an effective pollution control mechanism has been the attitude of the Government towards the protection of environment. Dabbling in the dubious dilemma of “economy versus ecology”, the Government of India and state governments have adopted a soft attitude towards the polluting industries and have done nothing more than give warnings to the industries to set up effluent treatment plants and air pollution control devices. The result is that these laws are practiced more in violation than in conformity and a large number of industries are still operating without adopting proper safety and pollution control measures. The enforcement agencies have consistently shown a helplessness to proceed against the powerful political-bureaucratic-industrial nexus and, in a large number of instances, have even joined hands to perpetrate environmental crimes.” Mehta supra note 5, at 352.


Environmental Protection Act, 1997, which set air and noise pollution standards for motor vehicles and industries were being treated as a dead letter. It was impressed upon, and accepted by the Court, that the dictum laid down in Shehla Zia was a binding precedent for the High Courts and all organs of state. In its judgment, the Court directed that all notifications required under the framework legislation should be made and the existing provisions should be strictly implemented through improved coordination and action on the ground.

It appears that whenever the issue of environmental quality of life in Pakistan arises as a justiciable matter, this case is cited as the definitive authority.57 Part of its appeal no doubt stems from its Supreme Court vintage, but a more palpable reason is the strength and vitality it gave to the ‘right to life’ concept. Recently, residents of an area adjoining a landfill moved the Lahore High Court to shift the site as the dumping of sold waste was causing diseases in the locality, contaminating the sub-soil and water and also affecting their livelihood due to the resultant damage to crops and livestock. In its judgment in the case titled Muhammad Yousuf and 15 Others v. Province of the Punjab through Secretary, Local Government and 6 Others, 58, the Court ordered the City Government to make alternative arrangements for the disposal of solid waste. Again, the ability of the Court to give such orders was helped immensely by the higher order principles laid down in the Shehla Zia case, as is evident from the following extract:

Lives of tens of thousands of citizens of this country…are sinking in the ocean of dirt, solid waster, garbage and pollution and that too, at the hands of City District Government. It is high time that the public functionaries should realize their duties and perform their functions, keeping in view the import of word “life” as defined by the apex Court of this country in Shehla Zia’s case ibid. This instant petition is treated as public interest litigation and, thus, this Court is inclined to give suggestions/directions to the public functionaries, especially to the City District Government.

The City Government appealed this decision to a Division Bench of the same Court59, which, in a pattern that is becoming increasingly familiar in this type of litigation, proceeded to form a committee (under the chairmanship of the author) whose terms of reference are to examine the environmental impact assessment of the project and to study alternate sites. The Committee has a broad-based membership which includes representatives of the city government, the provincial environmental protection agency and technical experts. By including all stakeholders in the deliberative process, the Court has shown its inclination to move forward in a non-confrontational and inclusive manner that may help to ensure that all participants face a collective responsibility in promoting the public good and have a common ownership in the end result.60

57 As Menski et al. note, “Besides laying emphasis on Article 9 on the right to life, Shehla Zia was also the first case in Pakistan in which environmental issues were discussed in detail, expert environmental opinion was sought and the relevant Indian case law was consulted”, see Menski et al, supra note 3, at 93. 582003 CLC 576 [Lahore].59 The appeal was filed as I.C.A No. 798/2002. 60 This accords with the inclusive principles highlighted by international law. Robinson notes that, “courts are guarantors of the Principle of Public Participation in governmental decisions that affect the environment. Principle 10 of the Rio Declaration on Environment and Development underscored the right of those whose environmental well-being is affected to be involved in decision-making. Courts can ensure that all stakeholders are heard, and hold administrator responsible for consulting all interests concerned…In Common Law jurisdictions, the role of courts in response to citizen suits and public interest litigation is critical to ensuring this right”. Nicholas A. Robinson, “Environmental Law: The Bedrock for Sustainability”, Global Judges Symposium on Sustainable Development and the Role of Law, Johannesburg, South Africa, 18-20 August, 2002.


Perhaps the most important legacy of the Shehla Zia case to date is in it providing an almost unfettered access to the public to approach the superior courts and the subordinate courts on environment related grievances. Prior to it, and particularly because of the lack of environment specific provisions in the Constitution, the procedural hurdles of “standing to sue” and the constitutional requirement of being an “aggrieved person” provided insuperable hurdles. Shehla Zia has, hopefully, irrevocably changed all this. Now, because of our constitutional scheme which provides that the law laid down by the Supreme Court and High Courts is binding on the subordinate courts (Articles 189 and 201), every Court in the country is bound to consider environmental complaints on merits.61 This is a victory whose significance cannot be over-emphasized.

F. Conclusion

In the Global Judges Symposium held in Johannesburg on 18-20 August 2002, the judiciary’s role as the ultimate guarantor of the rule of law was reaffirmed with special emphasis on the need to actively assert it to stem the growing incidence of environmental degradation on our planet:

We emphasize that the fragile state of the global environment requires Judiciary as the guardian of the Rule of Law, to boldly and fearlessly implement and enforce applicable international and national laws, which in the field of environment and sustainable development will assist in alleviating poverty and sustaining an enduring civilization, and ensuring that the present generation will enjoy and improve the quality of life of all people, while also ensuring that the inherent rights and interests of succeeding generations are not compromised

At the same time, the honourable members present also recognized the importance to be given to the most vulnerable sections of society:

We recognize that the people most affected by environmental degradation are the poor, and that, therefore, there is an urgent need to strengthen the capacity of the poor and their representatives to defend environmental rights, so as to ensure that the weaker sections of society are not prejudiced by environmental degradation and are enabled to enjoy their right to live in a social and physical environment that respects and promotes their dignity.

Fortunately, the Pakistani judiciary is meeting the above commitments in a most commendable fashion, both in boldly and proactively applying international and national laws to meet local needs and in granting the widest latitude in procedural matters that may affect the vindication of environmental rights. The receptivity of the courts all across to the country to assist in this field has been greatly enhanced by the fact that the Supreme Court in Shehla Zia laid down the higher order principle that the “right to life” encompasses a right to a decent environment. This

61 Notwithstanding the strides made by the Pakistani courts post Shehla Zia, supra note 38, there continues to be a need for Parliament and the Executive to strengthen the legislative framework. In his recent country report, Hassan acknowledges that, “Pakistan is relatively better off than other developing countries in terms of its environmental laws”, and that the country is, “also drafting new laws with more strict provisions and enforcement”. However, he recommends that, “to make the present environmental law effective, Pakistan needs to delegate full powers to provincial EPA’s as set out in the PEPA, form more environmental courts with their jurisdiction, form rules and regulations on enforcement and compliance procedures, provide extensive training in technical, legal and operational fields to EPA's staff, enjoin various agencies of Government charged with environmental protection to coordinate their activities and synchronize, and harmonize their rules and regulation in order to implement a comprehensive environmental management plan.” See Jawad Hassan, “Country Report Pakistan”, (2001) 6 (3 & 4) Asia Pacific Journal of Environmental Law 319, at 332.


constitutional stamp, coupled with a highly pragmatic approach (seen in both the attitude to procedural constraints and in the formation of expert commissions) has made the Pakistani judiciary a formidable partner in the struggle against environmental degradation. Unfortunately, this is no time to be sanguine about our common struggle to protect the environment in Pakistan or elsewhere as an active and benevolent judiciary will be ineffective as long as other institutional partners, in both public and private life, do not play their due role.62 The author has made this point in many fora before63, but it bears repetition, that for a strong judiciary to play its proper role it must be embedded in a framework of good environmental governance that includes mechanisms (both legal and practical) for the dissemination of information, active participation from NGO’s, chambers of commerce, local communities, the up gradation of technical, administrative and financial capacities of environmental agencies, active involvement by the media and the transfer of technologies and resources by the developed to the developing world. Without the other elements in place, the heroic role of the judiciary in Pakistan and elsewhere will always remain an uphill task where the peak is constantly being raised higher.

62 The gulf between judicial dictates and operational reality is also prominent in jurisdictions with a longer history of dealing with environmental issues. Dean comments that in spite of vigorous intervention over two decades by the courts in India, progress on the ground is painfully slow as court orders are not fully implemented: “It is these long-term problems and continuing breaches that are restricting the good work of the Indian courts. Having worked so hard to provide the mechanisms for the people to protect their fundamental right to a healthy environment, inaction and lethargy on the part of regulating bodies and local governments are negating the advances made by the courts. Even Abraham’s generally glowing appraisal of the state of environmental law in India makes reference to the inadequacy of the regulatory framework operation in India today, but sees this more as a result of Indian adherence to Anglo-American regulatory models. These, he contends, if not accompanied by, “proper guidance for their administration are functionally useless and…only result in inequity and injustice in the management of the environment”. A strong commitment to enforcement is required in any jurisdiction. It is desirable to have an activist bench such as the Indian Supreme Court, but it requires enforcement of the rulings handed down. Laws to regulate behaviour require sanctions to encourage strict compliance. As in all developing nations, the growing economy is of primary importance, demonstrated in Indian environmental cases that refer to the financial benefits industry brings to the various regions and states. It is common practice for state and local authorities to do all they can to encourage these industries into their region, as jobs, prosperity and a happy electorate will surely result.” Dean supra note 18 at 303. 63 See Parvez Hassan, “Elements of Good Environmental Governance”, (2001) 6 (1) Asia Pacific Journal of Environmental Law 1, remarks made in the keynote address presented at the, “Asia Pacific Forum on Environmental Governance and Sustainable Development Toward Partnership Building Among Parliamentarians, Civil Society Organizations, Private Sector and Government”, United Nations University, Tokyo, Japan, 10-11 May 2001, also in Donna G. Craig, Nicholas A. Robinson and Koh Kheng-Lian, Capacity Building for Environmental Law in the Asian and Pacific Region-Approaches and Resources, Volume II, (ADB, 2002), at 984. See also Parvez Hassan, “Environment and Sustainable Development: A Third World Perspective, (2001) 31(1) Environmental Policy and Law 36, remarks made at the ceremony of the award of the Elizabeth Haub Prize at Brussels, Belgium, on 16 November 2000.


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