How are environmental laws in Pakistan the product of judicial activism?

Despite any criticism of judicial activism, one area where it has proven effective in ensuring public welfare is environmental law. He has also contributed to the development of environmental law jurisprudence in Pakistan. Over a period of time, the high judiciary, in a number of cases beginning with the Shehla Zia case (1994), has provided adequate relief to the public regarding their concerns about environmental degradation. The Supreme Court and the High Courts have done so using the powers vested in them under Section 184(3) and Section 199 of the 1973 constitution of Pakistan respectively.

Section 184(3) grants the Supreme Court the Suo Motu power to hear any matter of public importance involving violation of fundamental rights. Similarly, Article 199 empowers the high courts with jurisdiction in written matters to enforce fundamental rights. In the context of increasing environmental challenges and lack of implementation by the government of the National Climate Change Policy (NCCP 2012) and the Climate Change Policy Implementation Framework (2014-2020), the Judicial intervention has done the bare minimum necessary to ensure environmental protection. people’s rights.

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Better understand the subject

It was the 1994 Shehla Zia case that opened the floodgates for a series of public interest environmental litigation (PIEL) in the years to come. The brief facts of the case were that petitioner Shehla Zia, along with others, filed a PIL in the Supreme Court against the construction of a network station by WAPDA in a residential area of ​​Islamabad. Counsel for the claimant argued that this posed serious health risks to area residents. The court accepted the case as admissible under Article 184(3). The Court, after hearing arguments from both parties, granted a stay of construction of the grid station. He ordered a review and report of the network project by the National Engineering Services of Pakistan (NESPAK) to suggest modifications and location alternatives.

The court referred to the precautionary principle provided for in the Rio Declaration of 1992. According to this principle, if there are strong suspicions about an activity harmful to the environment, it is better to take precautionary measures rather than d wait for conclusive evidence. Later in this case, NESPAK in its report submitted to the court concluded that sufficient mitigating measures had been put in place to avoid any risk. Based on this, although the court authorized the construction of the network station, this case has become a precedent.

Because there is no express provision in our constitution on environmental rights, for the first time in Pakistan, the right to a clean and healthy environment has been recognised. The court, while liberally interpreting the constitution, expanded the scope of Article 9 (right to life) and Article 14 (right to human dignity) to include the right to a healthy environment. This was the beginning of what some call the justice-driven environmental revolution in our country.

The bold approach displayed by the judiciary first in the Shehla Zia case and then in all the other environmental protection cases was not the result of any kind of emotionality of the judges. On the contrary, it was firmly rooted in certain established principles of international environmental law. Some of these principles are, the precautionary principle of the Rio declaration 1992, sustainable development, environmental justice and the public trust doctrine (PTD). Except for PTD which will be discussed in detail in the following paragraphs, other concepts are briefly discussed here.

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The precautionary principle of the 1992 Rio Declaration on Economics and the Environment states that where there are threats of serious or irreversible damage to the environment, the absence of full scientific evidence shall not be used as an excuse for not taking measures to impede the economy. Sustainable development is a principle of the doctrine of public trust that emphasizes the need to strike a balance between current economic activity and its future environmental consequences. These two concepts were mentioned by the Supreme Court in the Shehla Zia case.

Similarly, environmental justice is a social movement of the 70s and 80s

It aims to mitigate the impacts of environmentally harmful economic activities on those who are unfairly exposed to it. Since Pakistan is one of the 10 most vulnerable countries to climate change, the expansive attitude of the upper judiciary in handling environmental law cases is an attempt to pursue environmental justice in Pakistan.

The most important concept in environmental law is the doctrine of public trust PTD. Expounded by Professor Joseph Saxon in the 1970s, it is a common law doctrine that has its roots in the code of the Roman Emperor Justinian under the name of “Res Communis”. According to this doctrine, all natural resources such as water, air, lakes, forests, wildlife and parks are public goods. As the representative of the people, the government is the custodian of these natural resources. And ordinary people are the beneficiaries of these resources which are held by the government as an inalienable trust.

The doctrine of public trust gives the government the responsibility to preserve them, to allow the general public easy access to them and to prevent their use by private entities. It also gives the public the right, as a beneficiary, to go against the government and against private entities in case they use these resources. This doctrine also empowers the judiciary to provide the public with a much-needed legal avenue to protect environmental rights. In this way, PTD treats the right to a clean and healthy environment as part of fundamental human rights.

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This doctrine is part of English and American jurisprudence through the Magna Carta (1512) and a case named Arnold V Munday. Apart from this, the public trust doctrine is also part of the US state constitutions of Wisconsin and Pennsylvania. India has also incorporated it into its constitution under Article 21. The extent to which this doctrine has influenced the movement for environmental protection is quite evident.

In Pakistan, the judiciary’s journey of applying the TPD is as evolving as the judiciary’s own role in developing environmental law jurisprudence in Pakistan. Courts have implicitly applied the doctrine of public trust, although in some cases they have applied it by reference to its name. Sindh Institute of Urology and Transplantation and other V Nestle Milkpak Limited (2005 CLC 424) was the first case in Pakistan in which the PTD was directly applied by the court. The first case of implied enforcement was the Ardeshir Cowasjee case in the Supreme Court of Pakistan. Other notable cases regarding the application of the PTD in Pakistan are the Suo Moto tree cutting by the Lahore High Court.

The tribunal explained in detail the scope of the PTD in Pakistan. Another very important case was the Imran Tiwana case where Judge Mansoor Ali Shah widened its scope to include Environmental Impact Assessment (EIA). The methodology adopted by the courts in enforcing the PTD includes appointing commissions and panels of experts and granting injunctions to people without providing damages. As the courts have stated in various cases, the application of the public trust doctrine aims to ensure inter- and intra-generational environmental justice.

The courts’ judicial activism, however well intentioned, has faced criticism in the past. And its role in environmental law is no exception either. One of the main criticisms is that it violates the rule of law by interfering in laws passed by the legislature by popular demand. This becomes the rule of the judge and not the rule of law. In this way, it also violates the concept of popular sovereignty. Another oft-repeated criticism of judicial activism is that it undermines the concept of separation of powers. Critics point out that by interfering in political matters, the judiciary tramples on the authority of the executive and the legislature.

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It is also destroying democratic principles

As for the criticism of the courts’ approach to environmental law, I think it’s a bit misleading. The reason I say this is that Pakistan is a developing country both in terms of democracy and economy. When it comes to addressing environmental challenges, it not only faces capacity and infrastructure challenges, but also suffers from a lack of political will to implement already existing policies. In this scenario, judicial activism fills the gaps in the absence of a viable policy implementation mechanism.

The courts must not interfere in political matters, but if there is a violation of the law, the constitution or fundamental rights, then the courts must fulfill their constitutional role, which is to safeguard the public interest and to uphold fundamental rights. That the courts have repeatedly established that the right to life includes the right to a clean and healthy environment. So whenever people are deprived of their right to a clean and healthy environment, the courts will protect their right to life.

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Judicial activism is a necessary evil. Undoubtedly, it can never replace an adequate and popular policy based on consensus. But, in a country that is educationally backward, economically developing and politically polarized, this is more a corrective response to the political failures of a democratic process than undemocratic or irresponsible interventions.

Written by: Usama Jamil and Hafiz Mudassir Rizwan

The authors are law students at PULC. The opinions expressed in this article are those of the author and do not necessarily reflect the editorial policy of Global Village Space