Monday June 05, 2023

Policy and the law

September 21, 2019

The Global Climate Risk Index (2019) released by the public policy group Germanwatch places Pakistan among the top ten countries that are experiencing the impact of climate change. Air pollution, being a top-killer, has been recognized as a key theme for the 2019 World Environment Day.

The World Health Organization reveals that 98 percent children are exposed to unsafe levels of air pollution in developing countries. The ‘climate march’ in Pakistan (in the run up to the UN Climate Action Summit) expressing solidarity with the Global Youth Strike 4 Climate was a well-timed move. This global strike aimed at pressing our political leaders to take urgent measures to curb climate degradation.

The magnitude of the environment crisis is colossal. However, the protection of the environment is not provided as a fundamental right in any specific provision of our constitution. The environment is dealt with under sub-constitutional laws. Item 24 of the concurrent legislative list (fourth schedule of the constitution) empowers the federal and provincial legislatures to legislate on the environment. After the 18th Amendment, however, this list was abolished. In view of Article 142(c) of the constitution, the environment falls in the legislative domain of the provinces.

Notwithstanding the absence of fundamental rights provision about the environment, our courts have attempted to protect the environment while interpreting Article 9 (right to life) of the constitution. In the Shehla Zia case (1994), for example, the court expanded the meaning of word ‘life' through an activist interpretation. The court stated that the word ‘life' has not been defined in the constitution but it does not mean nor can it be restricted only to vegetative or animal life. The court held that a person is entitled to the protection of the law from being exposed to hazards of the environment such as an electromagnetic field.

Following the Shehla Zia case, parliament passed the Pakistan Environmental Protection Act 1997. This act and other provincial environmental protection laws envisage a mechanism of filing a complaint about environment protection. The complainant can first approach the provincial environmental protection agency and then the environmental protection tribunal in appeal. However, this mechanism failed to provide substantial relief.

After ratifying the Paris Agreement (2016), parliament again passed the Pakistan Climate Change Act, 2017. This act establishes three institutions: the Pakistan Climate Change Council, Pakistan Climate Change Authority, and the Pakistan Climate Change Fund. The Council is empowered to supervise the enforcement of the act, to give guidelines for the protection of ecology and to consider national climate change reports. The Authority is mandated to formulate mitigation policies and programmes to curb the climate change crisis, to ensure compliance with the Paris Agreement, and to carry out research and awareness campaign for the public. The Fund is responsible for providing financial support and thereby enabling the Authority to perform its functions. Despite this robust statutory framework, our environment continues to deteriorate.

Arguably, due to the failure of the executive to make and enforce policies regulating the environment, our courts have taken up numerous cases for the protection of the environment [ie The Lahore Clean Air Case (2003), Karachi Oil Spill Case (2003), Islamabad Environmental Commission Case (2015)].

Recently, the Lahore High Court has issued a fresh set of directions to various government departments to plant trees and protect forests and make the existing laws more stringent to deal with the non-compliance and violations of environmental laws. However, despite repeated judicial directions and constitution of judicial commissions, our environment is being polluted increasingly. Cleaning the environment through judicial activism seems to have produced little results.

While interpreting and enforcing the fundamental right to life, our courts have tried to make the environment clean and healthy. In doing so, however, the courts appear to have interfered into the policymaking domain of the government. The analysis of environmental law cases shows that superior courts have issued broad policy directions to the executive without due appreciation of the constitutional distribution of powers between the executive and the judiciary.

It may be argued that judicial activism cannot be a substitute for proper policymaking and its enforcement by the executive. The judiciary is obliged to uphold the constitution including the separation of powers between the executive and the judiciary. It is the job of the executive to handle the environment crisis ensuring the actualization of fundamental rights. The degradation of the environment, despite frequent directions by the courts, shows that policy matters such as protection of the environment may be left to the executive branch of the government.

The overstretch of fundamental right provisions in policy areas like the environment appears to challenge the constitutional separation of powers between the institutions and impede the progress of democracy. Allowing the people to hold the political government accountable for the provision of basic rights such as a clean environment would promote the democratic process in the long run. This Friday's ‘climate march' may not herald any revolution, but the politicization of our youth about climate change provides great hope for ushering an era of governmental accountability through a political process.

In my view, ‘active judicialism' is a parallel of ‘constitutionalism’. To strengthen rule of law and protect fundamental rights of the citizens, our courts need to support constitutionalism more enthusiastically, and the government should take effective measures to protect the environment and save the lives of our future generations.

The writer is a lawyer.