Environmental Law

ENVIRONMENTAL LAW ENVIRONMENTAL LAW By Qaiser Javed Mian, Research Depot b t tent, Punjab Judicial Academy, Lahore The Pakistan Environmental Protection Act (XXXIV of 1997) (PEPA) was promulgated and passed by the National Assembly on September 3, 1997 while Senate approved on November 7, 1997 and the President of Pakistan gave his assent on December 3, 1997 repealing the earlier "The Pakistan Environmental Protection Ordinance, 1983 (XXXVII of 1983)" under section 34 of PEPA.1 However, any acts done under the previous law were protected insofar as they were not inconsistent or contrary to PEPA. The objects, purposes and applicability of sections 5, 6, 8, 11, 12, 13, 16 and 17 have been fully discussed and explained by the Division Bench of honourable Sindh High Court in the case titled "Shehri C.B.E. versus Government of Pakistan".2 The Preamble of Pakistan Environmental Protection Act, 1997 reads as follows:-- "An Act to provide for the protection, conservation, rehabilitation and improvement of the environment, for the prevention and control of pollution, and promotion of sustainable development. Whereas it is expedient to provide for the protection, conservation, rehabilitation and improvement of the environment, for the prevention and control of pollution, and promotion of sustainable development and for matters connected therewith and incidental thereto;" Section-2(xxxii) (definition clause) arid sections 12 and 16 of the Act have been connected / bridged with Articles 9,14 and 25 of the Constitution of the Islamic Republic of Pakistan by the Superior Judiciary of Pakistan. The term "Life" in Art.9 of the Constitution has been given an extended meaning. A superior court has held that. "Pollution free environment, necessity of responsibility of citizens and public functionaries to reduce pollution, emphasized."3 (emphasis added) That since the real problem not being with the law itself, rather the problem being more of implementation and execution of the law, the present author has tried to cater and deal with the administrative, management, quasi judicial and judicial hierarchy involved in the actual administration and dispensation of justice in the context of environment law. Subsection (XII) of section-2 (definition clause) of PEPA defines the Environmental Magistrate as, "Environmental Magistrate means the Magistrate of 1st Class appointed under section-24 which section reads as follows:- "Jurisdiction of Environmental Magistrates (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or any ether law for the time being in force, but subject to the provisions of this Act, all contraventions punishable under subsection (2) of section 17 shall exclusively be triable by a Judicial Magistrate of the First Class as Environmental Magistrate especially empowered in this behalf by the High Court. (2) An environmental Magistrate shall be competent to impose any punishment specified in subsection. (3) And subsection (4) of section 17. (4) An Environmental Magistrate shall not take cognizance of an offence triable under subsection. Except on a complaint in writing by:- (a) The Federal Agency, Provincial Agency, or Government Agency or local council; and (b) Any aggrieved person. The powers and jurisdiction of Environmental Magistrate are more explicitly narrated in subsection (2) of section 17 which reads as follows:- "(2) Whoever contravenes or fails to comply with the provisions of section 14 or 15 or any rule or regulation or conditions of any licence, any order or direction issued by the Council or by the Federal Agency or Provincial Agency shall be punishable with fine which may extend to one hundred thousand rupees, and in case of continuing contravention, or failure with an additional fine which extend to one thousand rupees for every day during which such contravention continues." Section 25 of PEPA provides for appeals against the orders of Environmental Magistrate before the Court of Session to be preferred within 30 days from the date of conviction whose decision thereon shall be final. Under the scheme of PEPA, "Pakistan Environmental Protection Agency" (hereinafter the "Federal Agency") is created under section 5 while the "functions" of the Federal Agency are enumerated in section 6 while the "powers" of the Federal Agency are enumerated in section 7 of PEPA.5 Under section 8 of PEPA "Provincial Agencies" are envisaged to be established and .their powers and functions have been enumerated. The Federal Agency and the Provincial Agencies have the powers to control the environment from any violations. Section-16 of PEPA has enumerated in detail as to what measures the respective Agencies can take in given situations. The penalties which the respective Agencies can impose have been enumerated in sections 17, 18 and 19 of PEPA. With regard to curbing vehicular pollution, generally keeping in view the provisions of Provincial Motor Vehicles Rules, 1969 and particularly Rule-163, the State functionaries are bound by contractual obligations under International Treaties to take effective measures for elimination of vehicular pollution. Interestingly, Nuisance caused through air pollution is also punishable under sections 266 and 278 of Pakistan Penal Code. Furthermore, Articles 9, 14 & 38(a) of the Constitution of Islamic Republic of Pakistan, 1973 also ensure that no person shall be saved of life or liberty save in accordance with law.6 The term "Life" as used in Article-9 of the Constitution of Islamic Republic of Pakistan has to be given an extended meaning and could not be restricted to vegetative life. It has been held by the superior courts that, "Fundamental right to preserve and protect the dignity of man under Art.14 of Constitution was unparalleled and could be found only in few Constitutions of the world---Constitution of Pakistan, had guaranteed dignity of man also as the right to life under Art.9 of the Constitution---Authorities constituted under Pakistan Environmental Protection Act, 1997 were equally responsible to prosecute concerned Industries for willfully violating provisions of the said Act---Under provisions of Art.38(d) of the Constitution, it was the primary duty of Government to provide people basic -necessities of life which included unpolluted water for their consumption."7 Under section 20, the Federal Government may establish "Environmental Tribunals" determining their territorial jurisdictions.8 An Environmental Tribunal shall consist of a "CHAIRPERSON" who, is or has, been qualified for appointment as a Judge of the High Court, to be appointed after consultation with the Chief Justice of High Court and two members to be appointed by the Federal Government of which at least one shall be Technical Member with suitable professional qualifications and experience in the Environmental Field as may be prescribed. The powers of the Environmental Tribunals have been enumerated under section 21 of PEPA.9 All the proceedings before the Tribunals shall be judicial proceedings within the meaning of sections 193 and 228 of Pakistan Penal Code and Tribunal shall be deemed to be a court for the purposes of sections 480 & 482 of Criminal Procedure Code, 1898 and the Tribunals shall have the criminal powers as vested in the court of Session under the Code of Criminal Procedure, 1898 and shall also have the powers provided under the Civil Procedure Code, 1908. It is pertinent to note that in the exercise of appellate jurisdiction under section 22 of PEPA, the Tribunal shall also have the appellate powers as provided in the Code of Civil Procedure, 1908. Appeals before Tribunals. Under section 22 of PEPA, any person aggrieved from Federal Agency or any Provincial Agency may prefer an appeal before the Environmental Tribunal within 30 days of the communication of the impugned order or direction to such person. Appeals before High Court. Any person aggrieved by any final order or by any sentence of the Environmental Tribunal(s) may file an appeal within 30 days of communication of such order or sentence before the High Court and such appeal shall be heard by a Bench not less than two Judges. THE FOLLOWING IS A LIST OF INTERNATIONAL TREATIES, CONVENTIONS, AND PROTOCOLS ETC. ON THE SUBJECT OF ENVIRONMENTAL PROTECTION. (1) International Plant Protection Convention, Rome, 1951 (2) Plant Protection Agreement for the South-East Asia and Pacific Region (as amended), Rome 1956 (3) Agreement for the Establishment of a Commission for Controlling the Desert Locust in the Eastern Region of its Distribution Area in South-West Asia (as amended), Rome, 1963 (4) Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Ramsar, 1971 and its amending Protocol, Paris, 1982. (5) Convention Concerning the Protection of World Cultural and Natural Heritage (World Heritage Convention), Paris, 1972. (6) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Washington, 1973. (7) Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 1979. (8) Convention on the Law of the Sea, Montego Bay, 1982. (9) Vienna Convention for the Protection of the Ozone Layer, Vienna, 1985. (10) Montreal Protocol on Substances that Deplete the Ozone Layer, Montreal, 1987 and amendments thereto. (11) Agreement on the Network of Aquaculture Centers in Asia and the Pacific, Bangkok, 1988. (12) Convention on the control of Transboundary Movements of Hazardous Waste and their Disposal, Basel, 1989. (13) Convention on Biological Diversity, Rio De Janiero, 1992. (14) United Nations Framework Convention on Climate Change, Rio De Janiero, 1992. 1. It is to be noted that India had passed, "Indian Environmental Protection Act" in the year, 1986. 2. PLD 2007 Karachi 293=2007 CLD 783. 3. See Muhammad Yousaf v. Province of the Punjab, (Sic)CLC 576;(This judgment has followed the judgment of the Supreme Court titled "Ms. Shehla Zia and others v. WAPDA" PLD 1994 SC 693: for, Superior Courts emphasizing on immediate proper implementation of the Environment Law, please see, "Anjum Irfan v. Lahore Development Authority", PLD 2002 Lah. 555. 4. The provisions of PEPA being special law, Executive Magistrate could not under Section-133 Cr.P.0 direct the leather factory to be shifted and the order of Additional Sessions Judge upholding the decision of the Executive Magistrate in Revision Petition was also held to be unlawful. See Abdul Latif v. Additional Sessions Judge, Sahiwal; 2001 CLC 1139. 5. This author personally does not see any operational difference between "Functions" and "Powers". 6. See e.g. Mansoor Ali Shah v. Government of Pakistan, PLD 2007 Lahore 403 = 2007 CLD 533; Referred to and reliance upon 1996 SCMR 543. With regard to prptection of environment also see, "Nestle Milk Pak Limited v. Sindh Institute of Urology: PLD 2007 Kar.11(DB). 7. See Nazim, U.C. Allah Bachayo Shore v. State, 2004 YLR 2077, reliance and reference made to, General Secretary, West Pakistan Salt Miners Labour Union (CBA) Kheura, Jehlum v. The Director, Industries and Mineral Development Punjab, Lahore, 1994 SCMR 2062. 8. The honourable Sindh High Court had directed the Federal Government to establish Environmental Tribunals according to section 12 of Pakistan Environmental Protection Act, 1997 at the, earliest and preferably within 2 months. See e.g. "Shehri C.B.E. v. Government of Pakistan" PLD 2007 Karachi 293= 2007 CLD 783. 9. For the powers of the Environmental Tribunal under Rule-13 up of Environmental Tribunal Rules, See Shaheen Welfare Society (Regd) v. Environmental Protection Agency Punjab, Lahore; 2005 CLD 1267. See also: The plea/question of first seeking permission for a residential building from Environmental Protection Agency was rejected by the Honourable Singh High Court. See e.g. "Shamsul Arfeen vs. Karachi Building Control Authority" PLD 2007 Kar. 498; See also generally "Aamir Bakhat Azam v. Co-operative Model Town Society (1962 Limited), Lahore" 2007 CLC 374. However in another case Sindh High Court directed the Defence Housing Authority .to develop the beach in a manner, which would allow free access for the public to the same as indeed it is bound to be so under Art.12 of the Pakistan Defence Officers Housing Authority Order, 1980--- Proposed buildings/structures in the area would conform to the regulations/bye-laws of the Cantonment Board and all the public areas viz., walkways etc. should be made available to the public at large free of cost---Defence Housing Authority will also obtain the relevant permission from the Environmental Protection Authority -under the relevant law before launching the proposed development/project. See e.g. "Muhammad Tariq Abbasi v. Defence Housing Authority" 2007 CLC 1358(Kar)(DB).