Environment And The Role Of The Judiciary

ENVIRONMENT AND THE ROLE OF THE JUDICIARY ENVIRONMENT AND THE ROLE OF THE JUDICIARY By Dr. Nasim Hasan Shah, Judge, Supreme Court of Pakistan A hundred and thirty‑eight years ago, in 1854, the wise Indian Chief of Seattle in response to the offer of the, Treat White Chief in Washington, to buy their land sent a reply which is not only beautiful but profound. It is the first ever and the most understanding statement on environment. Although it deserves to be quoted in full but paucity of time compels me to rest content with quoting only part of his wise words: He said: How can you buy or sell the sky, the warmth of the land? The Idea is strange to us. "If we do not owe the freshness of the air and the sparkle of the water, how can you buy them." "Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people." [Keynote address presented at the Seminar on "Environment and Law in Pakistan" organised by ICUN (International Union for Conservation of Nature and Natural Resources) on 11th January, 1992 (Karachi).] He goes on to say: "We are part of the earth and it is part of us. The perfumed flowers are our sisters; the horse, the great eagle, these are our brothers. The rocky crests, the juices in the meadows, the body heat of the pony, and man‑-all belong to the same family." "So, when the Great Chief in Washington sends word that he wishes to buy our land, he asks much of us." And goes on to add: "The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and feed our children. If we sell you our land you must remember, and teach your children that the rivers are our brothers; and yours and you must henceforth give the kindness you would give any brother." "We know that the white man does not understand cur ways, He kidnaps the earth from his children. His father's grave and his children's bright right are forgotton. He treat,; his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads. His appetite will devour the earth and, leave behind only a desert." He further remarks‑ "There is no quiet place in the white man's cities. No place to hear the unfurling of leaves in spring, too the rustle of an insect's wings. But perhaps it is because I am a savage and do not understand. The clatter only seems to insult the ears. And what is there in life if a man cannot hear the lonely cry of the whippoorwill or the arguments of the frogs around a pond at night? I am a red man and do not understand. The Indian prefers the soft sound of the wind carting over the face of pond, and the smell of the wind itself, cleansed by a mid‑day rain, or scented with the pinon pine." "The air is precious to the red man, for all things share the same breath‑‑the beast, the tree, the man, they all share the same breath." And then goes on to add: "What is man without the beasts? If all the beasts were gone, man would die from a great loneliness of spirit. For whatever happens to the beasts soon happens to a man. All things are connected." The concluding words are indeed timeless: "This we know the belong to man; man belongs o the earth. This we know; All things are connected like the blood which unites one family. All things are connected." "Whatever befalls the earth befalls the sons of the earth. Man did not weave the web of life: he is merely a strand in it. Whatever he does to the web he does to himself." 2. Today society's interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity. Industrialisation, urbanisation, explosion of population, over‑exploitation of resources, depletion of traditional sources of energy and raw materials and the search for new sources of energy and raw materials, the disruption, of natural ecological balances, the destruction of a multitude of animal and plant species for economic reasons and sometimes for no good reason at all are factors which have contributed to environmental deterioration. While the scientific and technological progress of man has invested him with immense power over nature, it has also resulted in the unthinking use of the power, encroaching endlessly on nature. If man is able to transform deserts into oases, he is also leaving behind deserts in the place of oases. The environmental question therefore has become urgent and vital. It has to be properly understood and squarely met. We must realise that unless the damage caused by the massive interference of man into the environment is not controlled and arrested not only will man's quality of life deteriorate gravely but the survival of humanity will itself be in jeopardy. 3. How are we in Pakistan addressing this problem? Bits and pieces of Legislation relating to the environment existed in statutes enacted during the Colonial Rule. Thus, land tenure, forestry, canal irrigation, wildlife protection, energy development, pesticide use, and noise pollution were regulated to some degree in the past. In fact legislation pertaining to hunting goes back to the Mughal period. In Ain‑i‑Akbari we find regulations pertaining to hunting. These were continued by Sikh and British rulers who succeeded the Mughals. Thus, the Indian Penal Code enacted in 1860 made it an offence to kill, poison or maim any animal whose value exceeded ten rupees (S.428). By the 20th Century with faunal species coming under increasing threat of elimination, the Wild Birds and Animal Protection Act was promulgated in 1912. This law still remains in force and has served as a model for provincial and local legislation adopted after Independence. These laws limit hunting to licensed individuals of non‑engendered species in specified areas and in non‑breeding seasons. To control the shrinking of forests and regulate their use the Forest Act of 1927 was enacted by the British Government. This statute sought to "consolidate the law relating to forests, the transit of forest produce and the duty leviable on timber and other forest produce", with two subsequent amendments, the West Pakistan Goats (Restriction) Ordinance of 1959 and the West Pakistan Goats Restriction Rules, 1961, the Forest Act still remains Pakistan's legislative instrument controlling forestry. The Act of 1927 empowers the Government to set apart forest reserves, appoint officers charged with the management of those territories, enforce rules governing the use of forests, determine the degree to which timber and other products may he exploited, and regulate the movement of cattle upon these lands. Moreover, the Act authorizes the Government to punish violators of the stipulations contained therein. The 1959 and 1961 Goats Restriction Ordinances recognize the damage incurred to rangelands by limitless grazing of goats. Accordingly, the Government has been empowered to limit the number of goats in the country, and to regulate their movement. More recently, the passage of Firewood and Charcoal (Restriction) Act of 1964 limits the burning of firewood and charcoal. Legislation affecting water use closely followed the construction of canals during the 1860's. The Canal and Dranage Act of 1873, and the Punjab Minor Canals Act of 1905 ~re the earliest statute's governing the implementation of irrigation in the Indus Basin. These acts governed the use of the canals throughout the remainder of the British period and these laws, with certain amendments, have continued in force even after Independence. Legislation for soil reclamation was enacted after Independence in 1952. While. the use of pesticides in the country has been regulated through are Agricultural Pesticide Ordinance of 1171 and Agricultural Pesticide Rules of 1973 which require that all products be first registered with the Government before being marketed in the country. Broadly stated Government policy towards environment after Independence can be divided into three periods. The first period lasted from 1947 to 1957 during which environmental problems remained by and large, quite neglected. The second period lasted from 1958 to 1972. Environmental problems during this period were tackled in isolated and ad‑hoc fashion and no attempt was made to see these problems in an cosystem perspective. The final period started from 1972 and continues till today. In fact, this period started after the United Nations Conference on the Human Environment in Stockholm (June 1972) and can be said to mark the beginning of the concern in Pakistan for environmental management with broad perspective on a national scale. A Committee on Human Environment was constituted in November, 1972, which in its report submitted in April, 1973, highlighted the magnitude and complexity of the problem of. environmental degradation and the need for dealing with it in a comprehensive manner. It called for a two pronged approach‑embracing both the long‑rang preventive and short term curative measures, so that economic development would not produce "chaotic human environment, poor living conditions and serious degeneration of the environment". It was during this period that the Constitution of 1973 was adopted and provided for "Environmental Protection and Ecology" in item No. 24 of the Concurrent Legislative List enabling both the Federal and the Provincial Government to legislate in this field. However, hardly any significant legislation has really been enacted by any of them in this field except for a statute entitled the Pakistan Environmental Protection Ordinance, 1983 promulgated in the final days of 1983. Under this statute a powerful National Environmental Council with the personal involvement of the Head of the State, who is the Chairman of this Council has been provided for in the expectation that his association would facilitate enforcement of important environmental legislation and decisions, without the customary delay. A high powered Environmental Protection Agency has also been created by the same Ordinance. The major initial duties of the Agency are the preparation of National Environmental Policy and framing of the national environmental quality standards. The tasks of the Agency include administration of Environmental Protection Ordinance of Pakistan and co‑ordination of Environmental policies and programmes nationally and Internationally. The process of Environmental impact assessment provided for in the Ordinance can be used as a powerful tool to save the environmental degradation in the country. The most significant provision of this Ordinance is Section 8 which provides for the submission of an Environmental Impact Statement to the Agency by every person setting up an industrial project. According to subsection (2).of Section 8 of this Ordinance: (2) Every proponent of a project the construction or completion of which is likely to adversely affect the environment shall file with the Agency at the time of planning the project, a detailed environmental impact statement including information on: (a) the impact on the environment of the proposed industrial activity; (b) the treatment works of the proposed project; (c) the unavoidable adverse environmental effects of the proposed project; and (d) the steps proposed to be taken by the project proponent to minimise adverse environmental effects. Unfortunately, the Regulations to be made by the Agency for carrying out the purposes of this Ordinance have not so far been prescribed with the result that no effect in practice has been given to Section 8. Since this Section is the core of this Ordinance and incorporates the entire environmental effort, it is disappointing that it still remains unimplemented. Legislation dealing with other important environmental problems is also manifestly inadequate. Thus, the control in respect of public waters in Pakistan is through the fragmented provincial legislation in the field of public health and factories. The setting up of the Water and Sanitation Agency under the Lahore Development Authority Act, 1975 is an example of a local response. Similarly, Section 20 of the Lahore Development Authority Act enables LDA to remove sources of pollution. Section 14 of the Factories Act, 1934 deals with disposal of wastes and effluents. But these laws are basically too general and do not have the appropriate environmental input. There is also no specific law in Pakistan that would restrain pollution of our seas. Section 21 of the Ports Act, 1908 bars discharge of ballast or rubbish into a port but its main object is to ensure safety of shipping only. This is particularly distressing in view of the expanded scope of our interest in the 200 miles exclusive economic zone,("EEZ") declared in our Territorial Waters and Maritime Zones Act, 1976. Our legislative responses to problems of Air pollution too have been negligible: Even the antiquated Section 14 of the Factories Act, 1934, remains unimplemented. Similarly, Section 39 of the Provincial Motor Vehicles Ordinance, 1965 has not prevented the growing pollution in our cities from discharges of motor vehicles. Even legislations for metropolitan areas such as the Lahore Development Authority Act; 1975 with specific provisions against pollution from "vehicular exhaust" (Section 20) have been totally ineffective. Other than the routine provisions on "Public nuisance" (Section 268) in the Pakistan Penal Code, 1860, no law prevents Noise from destroying the peace of a city except to some slight extent under the provisions of the West Pakistan Regulation & Control of Loudspeakers and Sound Amplifiers Ordinance, 1965. Forest Conservation Pakistan continues to be oblivious to the importance of forests as an important natural resource. (Our forest cover is below a dismal 4% with no prospects of improvement). Our Forest Act, 1927, which is still in force, has inbuilt colonial thrust which facilitated the exploitation of our forest resources. What is now required is a conservation ‑oriented legislation by substituting the Forest Act of 1927 with a law which should aim at the preservation rather than the exploitation of the forest wealth. Wildlife Conservation and National Parks Recent legislations in all provinces such as the Punjab Wildlife (Protection, Conservation and Management) Act, 1974 recognise the importance of wildlife conservation. Despite this legislation owing to the unsatisfactory performance of the concerned officials the wildlife is becoming practically extinct as was noted by the Prime Minister only very recently during his visit to Lal Sonhara Park in Bahawalpur on 7th January, 1992. Cultural Environment Preservation of our cultural environment is also extremely important. The beauty of a country is a part of‑its environmental heritage. Not only should our mountains, rivers and seas be immunized from pollution but should be a source of beauty for ever. The Islamabad (Preservation of Landscape) Ordinance, 1966, is an effort in this direction. Protection for our cultural environment has also been attempted through some legislation namely the Antiquities Act, 1975 and the 'recent Punjab Special Premises (Preservation) Ordinance, 1985. Role of Judiciary Coming to the role of the Judiciary in preventing the degradation of environment I am happy to say that this has been quite positive. It should, however, be remembered that the Court can intervene only when it is moved either by an aggrieved party or by some public spirited citizen complaining of an environmental harm. Since concern in Pakistan for environmental deterioration in relatively of recent origin, the Courts have rarely been moved for assistance. In deed, no case complaining about deterioration of the environment has reached the Supreme Court so far though a few cases have been brought before the High Courts of Pakistan. It is a matter of satisfaction that in every one of these cases the view‑point of the environmentalists has been heard with sympathy and attention. In the well‑known case relating to the Margallah Hills, the complaint was that the stone crushing plants established there were not only destroying these lovely Hills but were also posing a serious health hazard to the people living all around. The approach of the Lahore High Court Bench seized of this matter has been very positive and the attendant publicity to the proceedings of the Court has resulted in the initiation of remedial action by the Government itself in this matter. More recently an Association, calling itself United Welfare Association, Lahore, filed a writ petition in the Lahore High Court citing the Lahore Development Authority and the proprietors of some Asphalt Plants as respondents. The intervention of the High Court was sought for getting these asphalt plants removed from their present sites on account of the serious health hazard they were posing for the community. The anxiety felt by the Court on hearing this complaint is manifest from the order it passed on 15‑10‑1991. Herein after 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". Dr. Parvez Hassan visited the area and reported that ‑‑ "The air‑borne pollutants, from the operational activity of the p!ar1t, are dispersed over a large area." and that these pollutants he said 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." And after referring to other relevant matters, submitted: "The continued operation of these plants is inconsistent with the rights of the adjoining residential areas to a clean and healthy environment. The residents are continually exposed to the obnoxious fumes arid 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 should be monitored with a view to minimize the impact of their environmental degradation." As a result of this report and the pressure of public opinion the Director‑General of the Lahore Development Authority was moved to pass an order directing the shifting of the Asphalt Plants from their present sites to other sites far removed from the residential areas. Now the Court has adjourned the case to 18th January, 1992, on which date it will examine the progress made towards the shifting of the plants from their present sites. Another case which is pending in the Courts is the writ petition filed in the Sindh High Court to prevent the construction of the proposed National Highway which cuts across the Kirther National Park and is likely to destroy the Wild Life of the area, especially the Sindh Ibex and the Urial. The general awareness engendered by these Court proceedings and the public outcry against the likely deleterious effects of this project has forced the Government to consider realigning the proposed Highway with a view to bypassing this National Park and save its Wild Life. Indeed there appears to be a growing appreciation of the importance for the preservation and promotion of Wild Life in Government Circles. This is apparent from the directives issued by the Prime Minister during his recent tour of Lai Sonhara National Park. Here he observed that Wild Life had almost perished owing to the indifference and inefficiency of the concerned officials. And to prevent its complete extinction he has directed the strict enforcement of the laws against illicit hunting and directed the formulation of comprehensive plans for the promotion and preservation of Wild Life and also sanctioned 3 Billion Rupees for implementation of these directives and the development of the Park. These laudable directives, however, are not the answer to the problems of degradation of the environment. The fact is that the existing legislation to prevent and control ecological harm is scanty, diluted and mainly non‑specific. The dangers posed by environmental pollution to health and safe living demand the filling up of the gaps in the existing laws without further delay and then strictly enforcing them in letter and spirit. It is only thus that the hazards to health and life resulting from the waste discharged by industrial, mining, pharmaceutical and chemical establishments can be controlled and the environment rendered free from their injurious effects. Coming back to the role of the Judiciary, one can say that till now it has largely contributed to focusing attention of all thinking people to the environmental problems arising in the cases brought before it. As a consequence of this attention, the authorities have been moved to take note of the concern of the Community regarding the harm to the environment being caused by a particular project and its baneful effects to the health and well being of the people. This has resulted in inducing them either to relocate the sites of the offending plants, factories or plants or roads or to persuade them to desist from continuing with their injurious activities. There is no doubt that the hearts and minds of people beat in unison with the environmentalists. The question whether practical steps will match these emotions is still be seen. Our future and the future of the coming generation depends on the answer to this question.