Changing Global Order: Role of Courts and Tribuanls in Pakistan in Environmental Protection

CHANGING GLOBAL ORDER: ROLE OF COURTS AND TRIBUANLS IN PAKISTAN IN ENVIRONMENTAL PROTECTION

By Dr. Parvez Hassan

A. EMERGING GLOBAL ENVIRONMENTAL ORDER

The global community has evolved over the last four (4) decades to a new order of environmental protection and sustainable development. There have been many participants and actors in this process including environmental activists, citizens groups, lawyers, law professors, academic institutions, non-governmental organizations, national and international, the judiciary and

* A paper presented at the New Delhi Dialogue on Role of Courts and Tribunals in the Changing Global Order organized by the Jawaharlal Nehru University, New Delhi, India, on 15 March, 2013. The association of Mr. Jawad Hassan in the writing of this article is, gratefully, acknowledged.

** B.A. (Punjab), LL.B. (Punjab), LL.M.(Yale), S.J.D. Harvard, Senior Advocate, Supreme Court of Pakistan Senior Partner, Hassart & Hassan (Advocates), Lahore, and , President, Pakistan Environmental Law Association.

governments. But the goal-posts for this changing global order were successively, and helpfully, declared at the United Nations Conference on Human Environment, Stockholm (1972),' World Charter of Nature (1982), the United Nations Conference on Environment and Development, Rio de Janeiro (1992)1, and the World Summit on Sustainable Development, Johannesburg (2002)2. The compass provided by these defining events enabled the proliferation of Multilateral Environmental Agreements ("MEAs") and the setting up of international Secretariats to service the needs of the changing global order.

In my attendance of many of these milestone events starting with Rio 19923, I developed a layman's guide to the respective positions and concerns of the developed and developing countries in the evolving global environmental agenda. To the developing countries, the important areas were (1) sovereignty over natural wealth and resources, (2) right to development, (3) eradication of poverty, (4) consumption patterns of the North, (5) capacity building, (6) waste trade, (7) reschedule/write off debts, (8) transfer of resources, (9) transfer of technology, and (10) harmful activities of transnational corporations.

The developed countries, on the other hand, sought focus on population stabilization, forests, intellectual property rights, and good governance.

The commonality of interest between the North and the South, was, however, readily visible on the need for a global partnership and for empowering youth, women, and indigenous people.

  1. N.A. Robinson, Parvez Hassan and Francoise Burhenne-Gulmin, Agen.da 21 and the UNCED proceedings ((6 Volumes) (Occeana Publications, 1994).

  2. See, generally, Parvez Hassan, The Johannesburg Summit: Making it Happen, 2003 Pakistan Law Journal (Magazine) at 41-49, See also Parvez Hassan, Environment and Sustainable Development: A Third World Perspective, in 31 (Environmental. Law & Policy, No.1 at 36-42 (2001).

  3. I have been privileged to attend Rio (1992), Rio + 10 (2002), Johannesburg (2002) and Rio +20 (2012). Additionally, I was a part - of the launch of the Earth Charter, The Hague (2000) and attended Earth Charter + 10 at The Hague (2010). Also I attended several Prepcoms and other preparatory meetings for these major conferences.

From this pot pourri dialogue emerged durable principles and concepts such as sacred trust for future generations, inter-generational equity, intra-generational equity, polluter pays principle, principle of sustainable development, need for public participation, environmental impact assessment, principle of prevention, precautionary principle, principle of restitution/restoration of environment, principle of strict liability, public' trust doctrine, and RRR (reduce, recycle, and reuse) in waste management.

This emerging global environmental order has, to generalise, developed a corpus of soft law and principles for national and international behaviour which have impacted on humanity and Planet Earth.4 There have been attempts to transform these soft law principles into binding treaty obligations of States. I was privileged to lead, as Chairman, IUCN Commission on Environmental Law, 1990-1996, the most significant of such attempts in the launch, in the UN General Assembly in 1995, of the Draft International Covenant on Environment and Developrnent.5 With Wolfgang Burhenne, my predecessor-Chair, and Nick Robinson, my successor-Chair, we in the IUCN Commission of Environmental Law, sought to fast track the development of "hard" international environmental law. The internationalization of the protection of human rights had provided some guidelines. It took sixteen (16) years to transform the declaratory content of the Universal Declaration of Human Rights in 1948 into binding commitments under the 1966 International Covenants on (1) Civil and Political, and (2) Economic, Social and Cultural Rights. We tried to progress the soft laws content of the Stockholm Principles on Human Environment (1972), World Charter of Nature (1982), Rio Declaration on Environment

  1. The Earth Charter has also influenced the development of "soft law". See, generally, Parvez Hassan, Earth Charter. The Journey from the Hague 2000, 2002 Pakistan Law Journal (Magazine), at 1-4; and Parvez Hassan Earth Charter; An Ethical Lodestar and Moral Force, in P. Corcoran, M. Vilela and A. Roerink (eds.) The Earth Charter in Action; Toward a Sustainable World, 29-31 (KIT Publishers, Amsterdam 2005).s

  2. See -Parvez Hassan, Toward an International Covenant on Environment and Development, American Society of International Law Proceedings, 513-522 (1993); and Parvez Hassan, The IUCN Draft International Covenant on Environment and Development; Bacic rotinciciProspects, in A. Kiss and F. Burhenne-Guilmin (eds), A Law For The Environment: Essays in Honour of Wolfgang E. Burhenne, 39-42 (IUCN 1994).

and Development (1992) and the Johannesburg Declaration on Sustainable Development (2002) into a binding framework treaty on environment and development. But the IUCN Draft Covenant, almost two decades later, still remains a draft.

This is not to say that there was no progress on the ground. Stockholm, Rio and Johannesburg each inspired, mostly in the developed world, national initiatives, policies and legislation that were, sometimes, effectively mainstreamed through judicial interventions.

However, developing countries such as Bangladesh, India, Pakistan and Sri Lanka were slow to assimilate the issues of sustainable development in their policies and legislation. But it is a measure of the vision of the judiciaries in these countries that they did not wait for national or international hard law to provide protection against environmental degradation. This region was fortunate in the pioneering formulations of fundamental rights around the right to life including a right to the environment by Justice P.N. Bhagwati in India. They soon resonated in Pakistan through an equally visionary Justice Saleem Akhtar 6. Similar developments of judicial activism took place in Sri Lanka and Bangladesh. And, the region was all set to see its courts and the judiciary as the major facilitators, in implementation, of the changing global order.

B. PAKISTAN'S RESPONSE

  1. Constitutional Provisions

The Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") contains no Principles of Policy in, relation to the environment. Nor do the Fundamental Rights in the Constitution include any mention of the environment. Stockholm 1972 was too recent for its impact to flow into the Constitution. The only reference in the Constitution was to "environmental pollution and ecology" in Item No. 24 of the Concurrent Legislative List in the Fourth Schedule. Matters listed in the Concurrent Legislative List were appropriate for

* I acknowledged the visionary role of Justices Bhagwati and Saleem Akhtar in South Asia at the UNEP Global Judges Symposium, Johannesburg, (2002); see Parvez Hassan Judicial Activism Toward Sustainable Development in South Asia, 2003 Pakistan Law, Journal (Magazine). at 39-41.

both federal and provincial legislation and policies (with federal primacy in case of a conflict with a provincial ' initiative). This was, however, changed by the 18th Amendment of the Constitution in 2010 which deleted the Concurrent Legislative List. The result is that the "environment" is now a provincial subject.

Article 270AA(6) of the Constitution, introduced by the 18th Amendment, however, provides:

270AA. Declaration and continuance of laws, etc.-

(6) Notwithstanding omission of the Concurrent Legislative List by the Constitution (EighteenthAmendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain inforce until altered, repealed or amended by the competent authority (emphasis added).

This Article has been interpreted to enable the continuation of federal legislation until the provinces introduce their legislation in replacement of the federal legislation affected by the 18th Amendment.7

  1. Legal and Regulatory Framework 8

In addition to a plethora of sectoral laws, the Pakistan Environmental Protection Act, 1997 (the "1997 Act") which replaced the earlier Pakistan Environmental Protection

  1. See, e.g., Industrial Relation Advisors' Association v. Federation ofPakistan, through Ministry of Labour and Manpower, Islamabad. PLD 2010 Kar. 328.

  2. An over view of the legal framework on sustainable development in Pakistan will be found in Partrez Hassan, From Rio 1992 to Johannesburg 2002; A Case Study of Implementing Sustainable Development in Pakistan (2002) 6 Singapore Journal of International and Comparative Law 683-722; Chapter on Pakistan (Pervez Hassan with Jawad Hassan), in L.Kotze and A. Paterson (eds.) The Role of the Judiciary in Environment Governance: Comparative Perspectives, 381-409 (Wolters Kluwer 2009).

Ordinance, 1983 (both drafted with my support), was the over-arching framework legislation on the environment. It incorporated several soft law principles adopted at Stockholm, Rio, and Johannesburg including the prevention principle, precautionary principle, and the principle of restoration/restitution. The 1997 Act further established a high-powered Pakistan Environmental , Protection Council headed by first the President, and later, the Prime Minister of Pakistan with wide policy-making powers including the-formulation of the National Environmental Quality Standards ("NEQS"). The implementation of policy was the responsibility of the Environmental Protection Agency ("EPAs") at the Federal level and Provincial levels. Substantive provisions of the 1997 Act required Environmental Impact Assessments and Initial Environmental Examination and enabled the EPAs to issue prohibitory orders against harmful environmental activity.

The 1997 Act was supported by Rules and Regulations enabled by it. The 1997 Act has, however, become a casualty of the 18th Amendment. But its impact will survive the Constitutional guillotine. The Provinces are mandated, after the 18th Amendment, to introduce their own environment-specific legislation. They are doing so and, as Punjab has done, through the Punjab Environmental Protection (Amendment) Act, 2012, the other Provinces are expected to mirror the provisions of the 1997 Act in their provincial adaptations.

The 1997 Act had improved on the earlier 1983 Ordinance to introduce, for the first time in Pakistan, Environmental Tribunals and Environmental Magistrates. This legacy of the 1997 Act will also likely survive in the successor-provincial legislations.

  1. Environmental Tribunals

The provisions of Environmental Tribunals and Environmental Magistrates in the 1997 Act recognized several realities. One, the growing importance of the subject was accepted in providing special courts for the specific and exclusive purpose of dealing with environmental matters. This was to comfort against the long list of cases in ordinary courts and the delays in their decisions. Two, the nature of environmental cases required a technical/professional input beyond the ordinary competence of a legally trained judge.

The inclusion of a technical member in the Environmental Tribunals allows a broad-based expertise to be available for decision making. Third, the case-law before the superior courts in Pakistan by 1997 had shown the need to involve experts, through commissions, in the resolution of environmental disputes. Fourth, Pakistan took notice of the world-wide trend to establish specialist tribunals for environmental matters.9 The legislation in Pakistan has, resultantly, taken a step in the direction of including technical members in En.vironmental Tribunals but this has not gone as far as the recent law in India, National Green Tribunal Act, 2010, which has set up Green Tribunals to include, besides the Chairperson, as many as forty (40) members, half of whom ,are to be drawn from specialist fields.10

The Federal Government is enabled, under the 1997 Act, to establish as many Environmental Tribunals as it considered necessary (Section 20(1)). The work of the Environmental Tribunal is facilitated by the Environmental Tribunals (Procedure and Function) Rules, 2008 (the "Rules").

Each Environmental Tribunal shall consist of three (3) members. The Chairperson is to be qualified to be a judge of the High Court (the "HC"). The technical member i,s required to have "suitable" professional qualifications and experience in the environment field as may be prescribed. The appointment of the Bench is done by the Federal Government but for the appointment of the Chairperson, consultation with the Chief Justice of the relevant HC is required (Section 20(2)). The third member of the Environmental Tribunal, that is the legal member, shall be a person who is or has been qualified to be a. judge of the HC (Rule 3).

The term of the members of Environmental Tribunal is for three (3) years which may be extended for another two (2) years by the Federal Government (Rule 4). For every sitting of the Environmental Tribunal, the presence

  1. See, generally, the several articles on Environmental Tribunals in different national jurisdictions in 3 Journal of Court Innovation (2010).

  2. See, Bharat Desai and Balraj Sidhu, On the Quest of Green Courts in India, id. at 79: see also the Interview of Bharat Desai, id. at 361.

of the Chairperson and one member shall be necessary (Section 20(3)).

The Tribunal has exclusive jurisdiction, under section 21(2), to try offences under certain indicated Sections of the 1997 Act (these include in respect of the prohibition of certain discharges and emissions (Section 11),' initial environmental examination and environmental impact assessment (Section 12), prohibition of import of hazardous waste (Section 13) and environmental protection orders (Section 16)), and to hear appeals against the orders of the EPAs (Section 22). Appeals from the Tribunal shall lie before the Division Bench of the HC (Section 23). In the exercise of its criminal jurisdiction, the Environmental Tribunal is vested with the same power as a Court of Session under the Code of Criminal Procedure, 1898, including that of arrest, warrant and bail (Section 21(4)). 1p the exercise of its appellate jurisdiction against the orders or directions of the Federal or Provincial EPA, the Environmental Tribunals shall have the same power and shall follow the same procedure as an Appellate Court in the Code of Civil Procedure, 1908 (Section 21(5)). In all matters where no procedure is provided, the Environmental Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 (Section 21(6)).

Environmental Tribunals are empowered to impose penalties for these contraventions. The Environmental Tribunal can impose fines up to Rupees one (1) million for the contraventions. In case of a continuing contravention, an additional fine of Rs. 100,000 for each day the contravention continues may be imposed (Section 17(1)). Additionally, where the Environmental Tribunal is satisfied, that as a result of the commission of an offence, monetary benefits have accrued to the offender, it, may order the offender to pay additional fines commensurate with the amount of the monetary benefits (Section 17(4)). The Rules provide that where an accused is convicted and sentenced to fine, payable within a time fixed by the Tribunal, and he fails to' deposit the fine, the Environmental 'Tribunal may cause his arrest and may sentence ,him to jail for a period not exceeding six (6) months or till the realization of fine, whichever is earlier. In case of a repeated offence, the Environmental Tribunal has the power to sentence/order the offender with an imprisonment for a term which may extend to two (2) years, and also include closure of factory, and confiscation of machinery, equipment and vehicles. Orders for the restoration of the environment oan also be given to the second time offender (Section 17(5)(e)).

The Environmental Tribunals can take cognizance of an offence only on a written complaint by the Federal or any Provincial EPA or an aggrieved person (Section 21(3)). The 1997 Act, however, does not define an "aggrieved person". An aggrieved person can only file a case in the Environment Tribunal after giving a thirty (30) day notice to the relevant EPA of the contravention and his intention to make a complaint to the Environment Tribunal (Section 21(3)(b)).

Environmental Tribunals have inherent power to receive and record evidence in detail. If the complainant cir the EPA, as the case may be, fails to produce the evidence despite availing a reasonable opportunity, the Environmental Tribunal may dismiss the complaint for want of evidence (Rule 20).

The enforcement of the orders/directions of Environmental Tribunal is primarily the responsibility of the EPA. For the assistance of the EPA, the police is required to render all possible assistance to the functionaries of the Environmental Tribunal or the EPAs, as the case may be (Rule 22).

  1. Environmental Magistrates

The 1997 Act provides, in its Section 24, that the High Court shall empower the judicial magistrates of the first class to be Environmental Magistrates and they shall exclusively try certain offences listed in it (mostly in relation to handling of hazardous substances and regulation of motor vehicles). Appeals from the order of the Environmental Magistrate shall lie to the Court of Session and the decision of Court of Sessions shall be final (Section 25). The Environmental Magistrate has the exclusive power to enforce implementation of the indicated Sections of the 1997 Act or any rules or regulations made thereunder. The Environmental Magistrate has the power to fine the offender to the extent of Rs.100,000 and, in case of a continuing offence, Rs. 1,000 for each day that the offence continues (Section 24(2) read with Section 17).

It is a common feature of both the Environmental, Tribunals and the Environmental Magistrates that they are under-staffed, not properly resourced, and led by persons who are not well-trained in environmental law and matters. This has adversely affected the quality of their work and effectiveness.

  1. The Glow of Public Interest Environmental Litigation ["PIEL"] 11.

The most remarkable feature in the environmental landscape of Pakistan is the judicial activism that has responded, in unique results, to public interest environmental litigation ("PIEL"). This has been facilitated by Article 199 of the Constitution which confers writ jurisdiction on the High Courts to enforce Fundamental Rights and Article 184 (3) which confers jurisdiction on the Supreme Court to enforce Fundamental Rights of "public importance". These Articles have been frequently invoked for the suo motu jurisdiction of the Supreme Court and the High Courts (the "superior courts"). Because the superior courts have been liberally responsive to environmental issues .and complaints, including on the jurisdictional issue of locus standi, the main body of environmental jurisprudence in Pakistan has been laid down by the Supreme Court and the High Courts, and the potential of the Environmental Tribunals has not bloomed fully.

Under Article 189 of the Constitution, the judgments of the. Supreme Court are binding on all the Courts and, under Article 201, the judgments of the High , Courts are binding on the subordinate courts. This high value of precedent is not available to the judgments of the Environmental Tribunals. This - is another reason that the litigants prefer the more effective handling of environmental cases by the High Courts and the Supreme Court rather than the Environmental Tribunals.

In the landmark PIEL decision in Shehla Zia v.WAPDA , 12. the Supreme Court of Pakistan held that the

  1. See, generally Parvez Hassan and Azim Azfar, Securing Environmental Rights through Public Interest Litigation in South Asia in 22 3 Virginia Environmental Law Journal 216-236 (2004)).

  2. PLD 1994 Supreme Court 693.

right to a clean and healthy environment was part of the Fundamental Right to life guaranteed by Article 9 of the Constitution and the Fundamental Right to dignity provided in Article 14. In this case, the Supreme Court also introduced the precautionary principle of environmental law, with specific reference to its inclusion in the Rio Declaration on Environment and Development, into Pakistani jurisprudence. This was well before the statutory recognition of this principle in the 1997 Act.

The Shehla Zia case pre-dates the 1997 Act. But even after the 1997 Act provided an alternative and "exclusive" forum in the Environmental Tribunals, the superior courts of Pakistan have taken up a number of environmental cases, both on petition and suo Motu, with respect to-the protection of the environment.

A major limitation to the PIEL and suo motu proceedings relating to the environment is that the issues brought forward for consideration are often of highly technical and complicated matters. Without the benefit of precedent and previously decided cases, the superior courts of Pakistan have adopted a unique and innovative approach of appointing Commissions .to investigate the issues and to make recommendations.13 This pioneering corpus of practice has come mostly from the judgments of Justices Saleem Akhtar, Tassaduq Hussain Jillani and Muhammad Sair Ali (we environmental lawyers call them "green" Judges). And in a recent case, in 2011, the Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry, led a bench of the Supreme Court to endorse the practice of looking to Commissions/Committees for mediating environmental disputes.14

  1. See, generally, Parvez Hassan, The Role of the Judiciary and Judicial Commissions on Sustainable Development Issues in Pakistan, in 37/2-3 Environmental Law and Policy 185-193 (2007), also in 2006 All Pakistan Legal Decisions, Journal, at 45-59; see also Parvez Hassan, The Role of Commissions in Public Interest Environmental Litigation in Pakistan, '2011 All Pakistan Legal Decisions, Journal, at 78-89.

  2. See, Parvez Hassan and Ahmad Rafay Alam, Public Trust Doctrine, and Environmental Issues before the Supreme Court of Pakistan,

2012 Pakistna Law Journal (Magazine) at 44-64.

The impressive story of PIEL in Pakistan, from 1991 to date, follows:15

(1) The Asphalt Plants Case (1991)

The first appointment of a Commission in the field of environment in the country in a public interest litigation was most probably in United Welfare Association, Lahore v. Lahore Development Authority (Writ Petition No. 9297 of 1991) before the Lahore High Court, Lahore. The intervention of the court was sought for getting certain asphalt plants removed from the Petitioners' sites in Lahore on account of serious health hazards the plants were posing for the residents. Dr. Justice Nasim Hasan Shah (to later become Chief Justice of Pakistan) comments on this case:--

The anxiety felt by the Court on hearing this complaint is manifest from the order it passed on 15 October 1991. Hereinafter noticing the contention of the petitioner it not only called upon the Lahore Development Authority ,to answer the allegations contained in the petition but also requested a renowned environmentalist namely Dr. Parvez Hassan, Advocate to visit the area "to verify the complaint made and then suggest to the Court the measures to be adopted".16

As a result of this report, the Director General, Lahore Development Authority, passed orders for the shifting of the asphalt plants.

(2) The Shehla Zia Case (1994)

In the Shehla Zia case, the Supreme Court was presented a unique petition when some residents of a residential area of Islamabad had approached the Court regarding the construction of a high voltage grid station by the Water and Power Development Authority (WAPDA). The residents, led by Ms. Shehla Zia, apprehended that the

  1. See, generally, Parvez Hassan, Environmental Rights as part of Fundamental Rights:"The Leadership of the Judiciary in Pakistan, in A. Postiglione (ed,), The Role of the Judiciary in the Implementation and Enforcement of Environment Law, 135-159 (Bruylant Bruxelles 2008); see also Parvez Hassan and Azim Azfar, supra note 11.

  2. Environment and the Role of the Judiciary. PLD 1992 Journal 21, at 27.

electro magnetic radiation of the grid station could be harmful for their health.

In adjudicating this case, the Supreme Court pioneered the use of judicial commissions in Pakistan to tackle complex environmental issue and to present suitable options. 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 precedents and 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.

WAPDA was also directed to make a public-friendly administrative approach a norm in its future work. The Shehla Zia case unleashed a new paradigm in public interest litigation on environmental issues in Pakistan as the superior courts grew more receptive to appointing Commissions 'to progress environmental rights.17

(3) The Salt Miners Case (1994)

In 1995, the Supreme Court appointed a Commission in General Secretary, West Pakistan Salt Mines Labour Union (CBA) Khewra, Jhelum v. Director, Industries and Mineral Development, Punjab, Lahore,18 to visit the site of extensive mining activity and to recommend remedial measures.

The Commission was given the power of inspection, recording evidence, examining witnesses including the powers as provided by Order XXVI of the Civil Procedure Code, 1908.19

As counsel of the petitioners in the Shehla Zia case, and the Chairperson of the Commission appointed in the Salt Miners case, I had a hand in shaping the orientation of the

  1. See Generally Parvez Hassan, "Shehla Zia v. WAPDA: Ten Years Later", PLD 2005 Journal 48, also published in International Environmental Law Committee Newsletter, of the American Bar Association's Section on Environment, Energy and Resources 13-19 (May 2005).

  2. 1994 SCMR 2061

  3. Id. at 2073

Pakistani courts to the use of judicial commissions in public interest environmental litigation. The basic approach that was followed was to recommend to the court how commissions, in other countries, have helped provide science/technology-based solutions which lie outside the expertise of the Courts. Apart from providing the court expert guidance, the other aspect of this approach was to highlight the importance of a non-adversarial, public-private partnership model for handling the most intractable civic problems.

(4) The Solid Waste Management Commission (2003)

The pattern of appointing expert commissions with broad participation of the stakeholders has been successfully employed recently in three major environmental petitions in Lahore. In 2003, in an intra-court appeal, City District Government v. Muhammad Yousaf,20 challenging the use of a site for dumping solid wastes, a Division Bench of the Lahore High Court appointed the Solid Waste Management Commission to review the suitability of Mahmood Booti as a site for solid waste disposal. The Court also directed the Commission to advise on the optimal environmentally appropriate manner for the disposal of solid wastes in Lahore as well as to recommend other sites for the disposal of solid wastes as per Lahore's requirements.

I was appointed the Chairman of the Commission comprising, on my recommendation, a broad section of representatives from both the public and private sectors. This roundtable included government officials and city administrators including the District Nazim (the Mayor of Lahore), the District Co-ordination Officer, the Director, Solid Waste Management, Government of Punjab, Director General, EPA, Punjab, Secretary, Health, Punjab, academics and scientists, parliamentarians, specialists, environmentalists, and members of civil society (representatives of IUCN Pakistan and WWF-Pakistan). The Commission set up a sub committee for hospital waste disposal under the Provincial Secretary, Health, who is the in charge of all the public sector hospitals. It is also a reflection of the public-private sector partnership and harmonious working of the Commission that it persuaded the City District Government Lahore to arrange and finance the Environmental Impact

  1. I.C.A. No.798/2002 filed before the Lahore High Court.

Assessment ("EIA") of Mahmood Booti by NESPAK, a consultancy firm chosen by the Commission.

On 23 March 2005, Lahore inaugurated the construction of its first 'integrated compost and landfill plant at Mahmood Booti and the plant was commissioned one (1) year later with private sector participation on a build, operate and transfer basis. According to The News, "Lahore's first compost plan will transform around 20 percent of the city's solid waste into 250 tonnes of organic fertilizer on a daily basis".21- The Solid Waste Management Commission moved with dedication and resolve to provide a model environmentally appropriate solid waste disposal regime for Lahore, hopefully to be replicated in other parts of the country.22

(5) The Lahore Clean Air Commission (2003)

In Syed Mansoor Ali Shah v. Government of Punjab,23 the Lahore High Court appointed, in July 2003, a Lahore Clean Air Commission, also co-chaired by me and the Advocate General, Punjab, to recommend measures for the improvement of Lahore air quality. This Commission, on my request, similarly included representatives from both the private and public sector including the City District, - Government Lahore. It set up sub-committees with respect to (1) clean ," fuel, (2) rickshaws, (3) public ' transport and (4) coordination with local councils. The Rickshaws sub-committee, for example, worked under the chairmanship of the Provincial Secretary, Environment, and the Clean Fuel sub-committee worked under the chairmanship of the District Coordination Officer, Lahore. Syed Mansoor All Shah, the coordinator of both this and the Mehmood Booti Commission, and now a part of the distinguished Green Bench of the Lahore High Court, chaired the sub-committee on public transport and held public hearings at the City Government conference room. All the oil

  1. Aoun Sabi, The news on Sunday (9 April, 2006).

  2. It was a measure of the gratitude of the city of Lahore for the work and role of the Solid Waste Management Commission that the speakers at the commissioning of the Plant acknowledged the pivotal role of the Commission in forging a science-based consensus on the an acrimonious issue and thereby avoiding long years of litigation and appeals.

  3. Writ Petition No.6927 of 1997 filed before the Lahore High Court.

companies were invited by the Clean Fuel sub-committee to support the work of the Commission.

The Lahore Clean Air Commission similarly finalized its Report on 21 May, 2005 with a developed consensus of all stakeholders including the manufacturers and users of public transport and rickshaws. These recommendations, including toward four stroke engines for rickshaws and CNG use, were filed in the Lahore High Court. In 2006, the Secretary, Transport, Government of Punjab, joined in supporting the recommendations of the Commission before, the Lahore High Court.

In order to ensure the implementation of the recommendations of the Commission, Mr. Justice Hamid Ali Shah, in W.P. No.6927, .directed that:

  1. Standing body of the Commission, comprising of Dr. Parvez Hassan, Advocate (Chairman); Syed Mansoor Ali Shah, Advocate/Petitioner (Facilitator , and Coordinator), District Coordination Officer (DCO), Lahore, Hammad Naqi, Director (Environment Pollution Unit), World Wide Fund for Nature (WWF), Lahore and Nihal Asghar, SEAL, Lahore is constituted to remain operational till the accomplishment of the Commission, approved herein above from Lahore. The Transport Department and the City District Government Lahore shall regularly report their progress to the Standing Body and keep them involved in their deliberations and plans. In case the Standing Body is of the view that the recommendations are not being followed or are being deviated from, they are free to approach this Hon'ble Court for appropriate orders.24

In this manner, the Court also provided a means for ensuring compliance and enforcement of PIEL judgments.

(6) The Lahore Canal Road. Mediation Committee (2011)

In May 2006, the Traffic Engineering and Planning Agency ("TEPA") of the Lahore Development Agency began preparatiOns to cut down trees along the scenic Lahore Canal

  1. Syed Mansoor Ali Shah v. Government of Punjab, PLD 2007 Lahore 403.

.

Road in order to widen it for the purposes of reducing congestion. The move was resisted by a civil society organization, the Lahore Bachao Tehreek ("LBT"). LBT's activism secured an EIA of the road widening project. The LBT challenged the approval given to the EIA by the EPA, it Punjab but the case remained pending in the Lahore High Court. In 2009, when the provincial government sought to proceed with the road widening project, the Supreme Court took suo motu notice25 of the environmental harm that would result in the felling of trees. On 14 February, 2011, the Supreme Court appointed me as the mediator between the LBT and the Government of Punjab with powers to associate others for the purposes of the mediation. Accordingly, eight (8) eminent citizens, elected i. representatives and government officials, representing the F cross-section of stakeholders were requested to participate as a Committee.

The recommendations of the Mediation Committee, following an open public participative process, took into account the views of the LBT and Government of Punjab as well as the other stakeholders and experts such as on urban planning, traffic engineering and environmental protection. The Supreme Court adopted these recommendations in toto.26

. ,

  1. Bhurban Declaration, 2012

Beyond Shehla Zia, the crowning achievement for environmental activists in Pakistan has been- the Bhurban Declaration, 201227 which was adopted, on 25 March, 2012. in a well-attended28 international Conference on

25 Suo Motu Case No.25 of 2009.

  1. In the matter of Cutting of Trees for Canal Widening Project, Lahore, 2001 SCMR 1743.

  2. The Bhurban Declaration was adopted at the South Asia Conference on Environmental Justice, organized by the Supreme Court of Pakistan and DB/IUCN, on 24-25 March 2012, at Bhurhan, Pakistan; See Environmental Jurisprudence from Pakistan: Some Lessons for the SARC Region, 2012 Corporate Law Decisions, Journal, at 24-49 for my presentation at the inaugural

session of this Conference.

  1. The Participants included the Chief Justices of the Supreme Courts of Pakistan, Jordan and Azad Jammu and Kashmir, Chief Justice of the Federal Shariat Court; judges from the Supreme Courts of Afghanistan: Bangladesh, Brazil, India, Jordan. Nepal, Pakistan,

Environmental Justice. The Conference declared a "Common Vision on Environment for the South Asian Judiciaries". The Bhurban Declaration embodied the unanimous resolution of the participants:--

(1) TO COLLABORATE among themselves and, as appropriate, engage others in the environmental enforcement processes, to significantly improve the development, implementation, and enforcement of, and compliance with, environmental law and collaborate to make an Action Plan to achieve the same;

(2) TO SHARE information on South Asian countries' common environmental challenges and, as appropriate, among the legal professionals, law schools, and the general public;

(3) TO DISSEMINATE information on environmental challenges and legal issues, and best practices in environmental adjudication among themselves, whilst acknowledging the differences among their respective legal systems, on the website of Asian Judges Network on Environment;

(4) TO STRENGTHEN specialised environmental tribunals and provide environmental training for the judiciary and other members of the legal fraternity;

(5) TO INVITE members of the South Asian Judiciaries to share their respective experiences and participate in training programs for judges from the South Asia region....

(7) TO ENSURE that judicial decisions on environmental

Sri Lanka and Indonesia; Chief Justice of the High Court of Bhutan and judges from the High Court of Bhutan and Maldives, Chief Justice of the High Courts of Balochistan, Islamabad, Lahore. Peshawar and Sindh; judges from the High Courts of Balochistan, Islamabad, Lahore, Peshawar and Sindh. Attorney General for Pakistan, Advocate Generals for Balochistan, Khyber Pakhtunkhwa and Punjab; retired judges of the Supreme Court of Pakistan; "Director Generals of the Judicial Academies; Chairpersons of the Environmental Protection Tribunals; members of the district judiciary across Pakistan; federal and provincial Secretaries of environment departments and Director Generals of the Environmental Protection Agencies; and environmental law academicians, eminent lawyers and environmentalists.

cases are shared within the Asian Judges' Network on Environment and made available to the public;

(8) TO ENCOURAGE law schools to includeenvironmental law in their curriculum;

(9) TO PROVIDE environmental law training to judgesthrough judicial academies, including making such training available for members of lawyers professional associations .... (emphasis added).

This is the first time in Pakistan's judicial history that the Chief Justice of Pakistan and the Chief Justices of all its Provincial High Courts as well as many judges of the Supreme Court of Pakistan and of the High Courts of Pakistan attended a two (2) day environment-fest at the hill side resort of Bhurban. For one who had started the long journey of public interest environmental litigation with the Shehia Zia case, it was a personally rewarding experience to witness the collective judicial legitimization of environmental protection in Pakistan. We had come a long way from the day when the subject of the environment was considered foreign-driven and premature for the consideration of Third World priorities.

The Bhurban Declaration also recommended that the right to a "clean and healthy environment" be included as a Fundamental Right in the Constitution and proposed the establishment of Green Benches in all the superior courts of Pakistan. The Green Benches have since been established and this prioritisation in the work of the superior courts is bound to progress future environmental protection in Pakistan.

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