The Rise of Rights-Based Climate Change Litigation in Pakistan
Humanity has caused and continues to cause irreversible damage to the Earth through the overuse of fossil fuels, the Industrial Revolution,[1] and environmental hazards like Chernobyl.[2] In 2021, climate change sparked natural disasters across the world, including an earthquake in Haiti, a volcanic eruption in Indonesia, and flash floods in China, India, and Pakistan, that swept away thousands of lives.[3] Today, action to protect the environment is prompted by the threat humanity faces because of climate change. Human rights and climate change, thus, are interwoven. Increasingly, activists are using litigation as a tool to remind States of their environmental responsibilities. Many cases rely on human rights, including the right to a safe and healthy environment, and in absence of that, the rights to life, health, food, water, adequate housing, etc.[4] Since 2015, 40 rights-based climate cases have been initiated in 22 countries (including Pakistan) and before three international bodies.[5] This article will map the rise of rights-based climate change litigation in Pakistan.
Early Environmental Jurisprudence in Pakistan
To appreciate the emergence of climate litigation, it is vital to examine early environmental jurisprudence in Pakistan as it provides context of the legal system’s receptiveness to climate change and environmental disputes. In 1994, in the landmark case of Shehla Zia v WAPDA, petitioners challenged the construction and installation of an electricity grid station on the basis of health risks resulting from being exposed to electromagnetic fields.[6] Article 184 of the Constitution which concerns Public Interest Litigation (PIL) was successfully invoked to facilitate the claim. The Supreme Court (SC) held, inter alia, that the rights to life and dignity – which include the right to a healthy environment – were being infringed. This was revolutionary since the case prompted the enactment of environmental legislation and the establishment of commissions to assist with environmental technicalities.[7]
Shortly after, in the Salt Mines v Mineral Development case, the SC ordered remedial measures to avoid water contamination, passed an order that prohibited dumping industrial or nuclear waste, and halted mining operations to curtail the water pollution of a residential catchment area.[8] It was held, relying on Shehla Zia, that “the right to have unpolluted water is the right of every person wherever he lives”.[9] Nevertheless, Pakistan is a water-scarce country, ranking third among countries facing severe water shortages by the International Monetary Fund and a large percentage of the population lacks access to clean water.[10]
Rights-Based Climate Change Litigation
Recently, the global attitude towards climate change has taken a turn. Countries are not only enacting more ambitious climate change policies, but the public is also gaining awareness of how seriously climate change affects their human rights and are initiating climate litigation to place a ‘bottom-up’ form of pressure on their governments. Rights-based climate litigation has taken the following forms in Pakistan and around the world.
Adoption of adequate response measures to address climate change
2015 saw the first ever climate justice litigation in the form of Urgenda Foundation v The State of Netherlands.[11] It concerned the Dutch government’s failure to reduce greenhouse gas emissions, particularly carbon dioxide, by 25 percent under their climate change policy. The class action claimed human right infringement under the European Convention on Human Rights (ECHR) and the Dutch Constitution. Although the Hague District Court held that the State was liable under tort law, the Hague Court of Appeals, overturned this reasoning and expansively construed the right to life. They reiterated a State’s responsibility to protect citizens from the dangers of climate change.[12] The case illustrates the application of substantive and procedural provisions of international human rights instruments and soft law provisions, like the Paris framework’s targets, to fill the gap between the State’s international obligations and its domestic law.[13]
Other cases include Future Generations v Ministry of Environment (2018) where youth plaintiffs successfully brought a claim against Columbian government bodies for their failure to adopt measures to counteract deforestation in the Amazon and safeguard the right to life and right to a healthy environment.[14]
In Rabab Ali v Federation of Pakistan,[15] a young girl filed a petition in the SC demanding an injunction against the development of the Thar Coalfield which is estimated to increase coal production in Pakistan from 4.5 to 60 million metric tons per year and release approximately 327 billion tons of CO2, more than 1,000 times Pakistan’s previous estimate for annual GHG emissions. The youth petitioner alleges that the development violates constitutionally protected fundamental rights (including the rights to life, liberty, dignity, information, equal protection before the law) and the Public Trust Doctrine.[16] The decision remains pending; however, it shall leave a monumental mark for climate justice.
In Maria Khan v Federation of Pakistan,[17] a pending case before the Lahore High Court, the Petitioners alleged that the federal government’s inaction on climate change violated their fundamental right to a safe and healthy environment and the commitments made by the State of Pakistan pursuant to the Paris Agreement.[18] In addition, the Petitioners argued that the government’s inaction in light of the disproportionate impact of climate change on women violates women’s rights to equal protection under the law.
Enforcement of existing commitments and targets
Shortly after Urgenda came Asghar Leghari v Federation of Pakistan,[19] Pakistan’s first rights-based climate lawsuit, with Justice Syed Mansoor Ali Shah of the Lahore High Court (LHC) presiding.[20] It concerned a farmer’s PIL claim that the State’s laid-back attitude towards implementing the National Climate Policy 2012[21] and Framework for Implementation of Climate Change Policy 2014-2030[22] violated his Article 9 constitutional right to life and Article 14 right to a healthy and clean environment because climate change presents serious threats to water, food, and energy security in Pakistan.[23] The LHC noted that no substantial work had been done by the government to implement the Framework and held that the “delay and lethargy” displayed by the Government transgressed fundamental rights.
Following the success of the Asghar Leghari case, the Petitioner in Sheikh Asim Farooq v Federation of Pakistan,[24]argued that through their inaction, the government had violated his fundamental rights guaranteed under Article 9 (right of life liberty), Article 14 (right of dignity), Article 26 (right of access to public places of entertainment) and Article 38(b) (provision of available leisure places) of the Constitution and had failed to implement deforestation-related legislation and policies.[25] He argued that the government’s inaction is clear from the fact that forest area is decreasing rapidly (at a rate of 1.9% at the time of the petition). The High Court ordered the government to take its legal obligations seriously when implementing policies to “manage, conserve, sustain, maintain, protect and grow forests and plant trees in urban cities.”[26]
Cases against corporations
In a recent SC judgement spearheaded by Justice Mansoor, D.G. Khan Cement Company v Government of Punjab,[27] it was questioned whether a provincial decision barring new or expanded cement plants in environmentally fragile zones was legal. Although the owner of the cement company argued that this bar violated his rights under Article 18 of the Constitution, the SC upheld the prohibition on the basis of the national climate change policy and environmental impact assessment reports. This is an influential decision and sets an exemplary precedent especially since it showcases the dedication of the government and judiciary to work together and implement climate change policies effectively. Justice Mansoor explained, “Through our pen and jurisprudential fiat, we need to decolonise our future generations from the wrath of climate change, by upholding climate justice at all times.”[28]
Conclusion
Although such cases do not bring instant changes to the existing legal framework, they represent a step in the right direction; a gateway that grants justice through policy discourse. In some cases, direct results are also achieved, for instance, the adoption of 30 out of 54 of Urgenda’s Climate Solutions Plan in the aftermath of the case.[29] However, the implementation of remedies is not always easy. When used strategically, right-based litigation can create a narrative that increases awareness and addresses climate change.
Countries like Colombia, India, Pakistan, the Philippines, and South Africa have built on international precedents to counteract violations of socio-economic rights affected by climate change and are fruitful jurisdictions for future developments in rights-based litigation.[30] The trend is likely to persist as the public, activists, and international organisations keep increasing pressure on domestic courts to address the relationship between rights and climate change through case law. Importantly, in 2021, the UN HRC voted 42–1 in favour of formally recognising the right to a safe, clean, healthy, and sustainable environment which provides a suitable platform for rights-based litigation to grow considerably.[31]
References
[1] Celia I. Campbell-Mohn and Federico Cheever, ‘Environmental Law’ Encyclopedia Britannica (September 19, 2016); [hereinafter ‘Campbell and Cheever 2016’]. Available at: https://www.britannica.com/topic/environmental-law [Accessed 29 April 2021].
[2] Ibid.
[3] Brianna Navarre, ‘10 of the Deadliest Natural Disasters in 2021’ US News (23 December 2021) <https://www.usnews.com/news/best-countries/slideshows/here-are-10-of-the-deadliest-natural-disasters-in-2021?slide=12> accessed 18 March 2022.
[4] OHCHR, ‘A New Climate Change Agreement Must Include Human Rights Protections for All’ (2014)
<https://www.ohchr.org/Documents/HRBodies/SP/SP_To_UNFCCC.pdf> accessed 18 March 2022.
[5] Kumaravedivel Gurupran, Harriet Moynihan, ‘Climate Change and Human Rights-based Strategic Litigation’ (2021) Chaltham House Briefing <https://www.chathamhouse.org/2021/11/climate-change-and-human-rights-based-strategic-litigation/summary-trends> accessed 18 March 2022
[6] Shehla Zia and Others v WAPDA (PLD 1994 SC 693).
[7] Solid Waste Management Commission 2003; Lahore Clean Air Commission 2003; Lahore Canal Road Mediation Committee 2011; Islamabad Environmental Commission 2015; Climate Change Commission 2015-2018; Houbara Bustard Commission 2017-2018; and Smog Commission.
[8] General Secretary, West Pakistan Salt Mines Labour Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061).
[9] Ibid.
[10] ‘Pakistan Third Amongst Countries Facing Water Shortages’ The News (14 January 2019) <https://www.thenews.com.pk/print/418698-pakistan-third-amongst-countries-facing-water-shortages#:~:text=Pakistan%20ranks%20third%20amongst%20countries,steadily%20growing%20in%20recent%20years.> accessed 18 March 2022.
[11] Urgenda Foundation v The State of Netherlands HAZA C/09/00456689 (June 24, 2015); aff’d (Oct. 9, 2018) District Court of the Hague, and The Hague Court of Appeal.
[12] Arthur Neslen, ‘Dutch Government Ordered to Cut Emissions in Landmark Ruling’ The Guardian (24 June 2015) <https://www.theguardian.com/environment/2015/jun/24/dutch-government-ordered-cut-carbon-emissions-landmark-ruling> accessed 18 March 2022.
[13] Cesar Rodríguez-Garavito, ‘Litigating the Climate Emergency: The Global Rise of Human Rights-Based Litigation for Climate Action’ (2015) NYU School of Law, 7.
[14] Future Generations v Ministry of the Environment and Others (2018).
[15] Rabab Ali v Federation of Pakistan & Another (SC 2016) <http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2016/20160401_Constitutional-Petition-No.-___-I-of-2016_petition-1.pdf> accessed 18 March 2022.
[16] Ibid.
[17] Maria Khan v Federation of Pakistan (W.P. No. 8960 of 2019) <http://climatecasechart.com/climate-change-litigation/non-us-case/maria-khan-et-al-v-federation-of-pakistan-et-al/> accessed 18 March 2022.
[18] Ibid, para 23
[19] Asghar Leghari v Federation of Pakistan (LHC W.P. No. 25501/2015).
[20] M.B. Gerrard, ‘Climate Litigation Scores Successes in the Netherlands and Pakistan’ (2016) Trends: American Bar Association Section of Environment, Energy, and Resources Newsletter, 47, no. 5.
<https://www.americanbar.org/publications/trends/2015-2016/may-june2016/climate_litigation_scores_successes.html> accessed 18 March 2022.
[21] UNDP, Government of Pakistan, ‘National Climate Change Policy’ (2012) <http://www.pk.undp.org/content/pakistan/en/home/library/hiv_aids/publication_1.htm> accessed 18 March 2022.
[22] UNDP, Government of Pakistan, Climate Change Division, ‘Framework for Implementation of Climate Change Policy (2014–2030)’ (2013) <http://www.gcisc.org.pk/Framework%20for%20Implementation%20of%20CC%20Policy.pdf> accessed 18 March.
[23] Asghar Leghari v Federation of Pakistan (LHC W.P. No. 25501/2015), Para 11.
[24] Sheikh Asim Farooq v Federation of Pakistan (LHC W.P. No. 192069/2018).
[25] Forest Act, 1927; Punjab Plantation and Maintenance Trees Act, 1974; the
National Climate Change Policy, 2012; National Forest Policy, 2015; Forest Policy Statement, 1999; and Punjab Forestry Sector (Forests, Watershed, Rangelands and Wildlife) Policy, 1999.
[26] Sheikh Asim Farooq v Federation of Pakistan (LHC W.P. No. 192069/2018)
[27] D.G. Khan Cement Company v Government of Punjab (W.P. No. 5898/2019) <http://climatecasechart.com/climate-change-litigation/non-us-case/d-g-khan-cement-company-v-government-of-punjab/> accessed 18 March 2022.
[28] D.G. Khan Cement Company v Government of Punjab, Para 19. <http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210415_13410_judgment.pdf> accessed 18 March 2022.
[29] Urgenda (2020), 54 Climate Solutions Plan <https://www.urgenda.nl/en/themas/climate-case/dutch-implementation-plan.> accessed 18 March 2022.
[30] Kumaravedivel Gurupran, Harriet Moynihan, ‘Climate Change and Human Rights-based Strategic Litigation’ (2021) Chaltham House Briefing <https://www.chathamhouse.org/2021/11/climate-change-and-human-rights-based-strategic-litigation/summary-trends> accessed 18 March 2022.
[31] Human Rights Council Resolution 48/13.
