D.G Khan Cement Company vs. Government of Punjab
On April 15, 2021, the Supreme Court of Pakistan upheld a Notification by the Provincial government of Punjab barring the construction of new cement plants or the expansion of existing cement plants in environmentally fragile zones called “Negative Areas.” A cement company owner challenged the Notification on the grounds that it violated their constitutional right to freedom of trade, business, and profession under Article 18 of the Constitution, and that the government acted in undue haste by issuing the regulation without full consideration of scientific impacts. The Supreme Court rejected the challenges and upheld the government’s consideration as proper, based on a consultant report, that new or expanded cement plans could cause further depletion of groundwater and other harmful environmental impacts. As part of its consideration, the Court emphasised the need for the government to uphold the precautionary principle in protecting the rights to life, sustainability, and dignity of communities surrounding the project areas. In addition, the Court recognised the need to protect the right of nature itself, writing, “[m]an and his environment each need to compromise for the better of both and this peaceful co-existence requires that the law treats environmental objects as holders of legal rights.”
Members of civil society filed suit against Pakistan for failure to plant, protect, manage, preserve, and conserve the trees and forests in Punjab in violation of statutory obligations and petitioners’ constitutional rights. Petitioners requested a writ of mandamus under Article 199 of Pakistan’s Constitution and alleged the government’s conduct violated their 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. Petitioners asked the court, inter alia, to appraise the government’s implementation of relevant policies to increase forest cover; to implement the Forest Act, 1927 and the Punjab Plantation and Maintenance of Trees Act, 1974 by planting trees; to present a timeline for implementation, and to initiate appropriate proceedings against officers who failed to discharge their duties.
The High Court of Lahore allowed the writ of mandamus, ordering the government to fulfil their obligations under the law “to safely manage, conserve, sustain, maintain, protect and grow forests and plant trees in urban cities.” The court summarised a variety of requirements under natural resource, development, local government, and international law to establish the government’s obligations to protect the forest including the “Forest Act” and “Trees Act.” It directed the government to take its legal obligations seriously in implementing related policies, including the National Climate Change Policy, 2012, the National Forest Policy, 2015, the Forest Policy Statement, 1999 and Punjab Environment Policy, 2015. It noted that if the government had properly fulfilled its legal obligations “in letter and spirit” “the forest of Pakistan could have been saved [from] further depletion and deforestation.”
A coalition of women filed a constitutional petition on their behalf and on behalf of future generations against the Federation of Pakistan. They allege that the federal government’s inaction on climate change violated their fundamental rights including the right to a clean and healthy environment and a climate capable of sustaining human life, (a right which was previously recognized in Asghar Leghari v. Federation of Pakistan 2018 CLD 424). They further argue that since climate change has a disproportionate impact on women, the government’s climate inaction violates plaintiffs’ rights to equal protection under the law and no discrimination on the basis of sex.
In its final order, the court nominated climate justice as the successor to environmental justice. Environmental justice—said the court—revolved around enforcing national laws, with decisions informed by international legal principles. It focused on shifting or stopping pollutive industries. Climate justice, as the court envisioned it, adopted a human-centred approach. It linked human rights with development. It sought to safeguard the rights of vulnerable peoples and share “the burdens and benefits of climate change and its impacts equitably and fairly.” Climate justice was “informed by science, responds to science and acknowledges the need for equitable stewardship of the world’s resources”. However, realising that climate justice was challenging, the court acknowledged that polluters often fell beyond national borders and were difficult to identify. Finally, the court outlined its vision for water justice as a human right to access clean water and a sub-concept of climate justice.
Rabab Ali, a 7-year-old girl who lives in Karachi, is the named petitioner in a challenge to various actions and inactions on the part of Pakistan’s federal government and on the part of the Province of Sindh (where Karachi is located). The Petition, filed directly with the country’s Supreme Court, alleges violations of constitutionally protected Fundamental Rights, of the Public Trust Doctrine as it relates to Pakistan’s atmosphere and climate, and of rights relating to the environmental degradation expected to result from burning coal to generate electricity. In support of these allegations, it highlights that Pakistan’s government has acknowledged the reality and consequences of climate change with the National Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy of 2013. While the Petition alleges a variety of specific acts or omissions by Pakistan’s government, its chief focus is on the approval of a plan to develop coal fields located in the Thar desert region, located in the southeast corner of the country. That development is anticipated to increase Pakistani coal production from 4.5 to 60 million metric tons per year, with a commensurate increase in greenhouse gas emissions. It is also expected to displace residents in that region, and to lead to environmental degradation both directly (through water quality impacts) and indirectly (through air quality impacts from coal combustion). As the Petition notes, the China-Pakistan Economic Corridor is the source of investments of $1.2 billion for both coal field development and for the development of multiple coal-fired power plants in Pakistan.
This landmark case expanded the fundamental rights to life and dignity by interpreting these rights to encompass the right to a healthy environment. This decision is particularly significant as there are no specific provisions in the Pakistani Constitution regarding environmental protection. In relation to environmental law in Pakistan, it is important that the case established the application of the precautionary principle where there is a threat to environmental rights, and emphasised the positive obligations of the State in protecting the right to a clean and healthy environment. Furthermore, the ruling placed a notice and comment restriction on government agencies in regards to projects that could potentially pose a public risk. This case is also noteworthy, “because it laid down the foundations of all future public interest litigation brought before courts for environmental protection.” The Court examined Article 9 of the Constitution of Pakistan, which provided that no person shall be deprived of life or liberty save in accordance with law. It explained that the word ”life” could not be restricted to mere existence from conception to death. A wide meaning should be given to it, which might include proper food, clothing, shelter, education, health care, clean atmosphere and an unpolluted environment. A person was entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to the installation and construction of any grid station or such like installations. A large number of citizens throughout the country could not make a representation to seek an injunction in connection with this entitlement though, because of ignorance, poverty and disability. Therefore Article 184 of the Constitution, which provides for public interest litigation, could be invoked. The Authority was directed that in future prior to installing or constructing any grid station, it would issue public notice in newspapers, radio and television inviting objections, if any, by affording public hearing to the person filing objections.
General Secretary Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore 1994 SCMR 2061
In this case, the Court held that water which was necessary for existence of life, if polluted, or contaminated, would cause serious threat to human existence and in such a situation, persons exposed to such danger were entitled to claim that their fundamental right of life guaranteed to them by the Constitution which had been violated in the present circumstances. Orders were issued by the Supreme Court restraining the parties and Authorities from committing such violation and to perform their statutory duties. In cases where life of citizens is degraded, the quality of life is adversely affected and health hazards are created affecting a large number of people, the Court in exercise of its jurisdiction under Article 184(3) of the Constitution may grant relief to the extent of stopping the functioning of factories which create pollution and environmental degradation.
The Lahore High Court restrained 121 industrial units of the Punjab, excluding those that had already installed treatment plants from discharging effluents into drains and canals on petition stating that these were being drained without treatments. Consequently, most industries started to install treatment plants to avoid any threatened litigation in the future.
The Court maintained that the sole object of including Chapter XIV in the P.P.C. is to safeguard the public health, safety and convenience by causing those acts which make environmental pollution threatening the life of the people, punishable. In other words, all those acts which endanger public health directly or indirectly have been brought under the purview of the Penal Code. The Penal Code in Chapter XIV consisting of sections 268‑‑294‑B deals with public nuisance, i.e. the offenses relating to public health safety, convenience, decency and morals. Criminal liability of companies in Pakistan is quite clear. The company is not exempted from criminal liability merely because it is a juristic person and not a natural person. Section 11 of P.P.C. includes any company or association or body of persons whether incorporated or not into the word person. The provisions relating to the prohibition of pollution of water do not require any particular mens rea. It is negligent because everyone has a duty of care based on common sense not to pollute river water which is used for drinking by men and other animals. The spoliation of water and air may take place due to the activities either of private persons or corporations or public authorities. A public spring like a well or reservoir like a Municipal Water Tank is dealt with under section 277 of P.P.C. Corruption or fouling of the water of any public spring or the reservoir so as to render it less fit for the purpose for which it is ordinarily used, is punishable under this section. Moreover, the Court stated that the mere framing of law does not provide good results unless the law is strictly implemented in letter and spirit without fear, favour and nepotism.
The Court maintained that a landowner has a right to collect and dispose of within his own limits all water under the land which does not fall in a defined channel but such right is not unfettered. Natural resources of the earth, including the air, water, land, flora and fauna especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate and Court, while dealing with the equitable relief of injunction, should keep this in view. Moreover, natural resources like air, sea, waters, and forests are like Public Trust and such resources being a gift of nature, should be made freely available to everyone irrespective of their status. The Court further elaborated on “Doctrine of Public Trust” as developed during the days of ancient Roman Empire, which enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Even under the Islamic law certain water resources are to be protected from misuse and over exploitation.
The Court held that the right to enjoy a public park was a right to life as employed in Article 9 of the Constitution and hence the persons who reside in close proximity to the park had the locus standi to move the High Court in its constitutional jurisdiction to impugn the construction of a commercial complex inside the park. Moreover, the Court maintained that even a person who did not live within the vicinity of the park had the right to approach the High Court since park was a public recreation. The concept of locus standi did not mean that petitioner should have a right in strict juristic sense, it was enough if he disclosed that he had a personal interest in the performance of a legal duty, which, if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty of franchise. A person, in the case of public interest litigation, could invoke the constitutional jurisdiction of the superior Courts as pro bono publico but subject to showing that he was litigating firstly in the public interest against various public functionaries who had failed to perform their duties relating to the welfare of the public at large. In this case, the organisation which was sensitive to environmental issues and had brought to the attention of High Court the development of the beach in the manner which would allegedly deprive the residents of the city of their fundamental right of free access to the park, it could not be said that the said organisation did not have sufficient interest in the matter or had no locus standi.
Lahore Canal Bank Road Suo Moto Case No. 25 of 2009 (Cutting of Trees for Canal Widening Project Lahore), 2011 SCMR 1743.
This case involved the Canal Road Project which aimed to widen the road of both sides of the canal, the environmental impact of this included damage to the green belt. The Court held that this apprehended effect may not be violative of the fundamental rights to life unless it was shown by placing incontrovertible material before the court that the project would lead to hazardous effects on environment and ecology to an extent that it would seriously affect human living. Moreover, approval of the project was granted by strictly complying with Pakistan Environmental Protection Act, 1997 and the regulations framed thereunder with conscious application of mind considering all relevant material and the attending circumstances. The Court held that the Canal Road Project neither contravened the fundamental right of right to life nor the right to human dignity.
United Welfare Association, Lahore vs. Lahore Development Authority Writ Petition No. 9297 of 1991 before the Lahore High Court, Lahore
This Petition was filed to have certain asphalt plants removed from their sites due to health hazards posed to neighbouring residents. In consequence of the report on the impact of such plants, the Lahore Development Authority passed orders for shifting of the asphalt plants. 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”.
The Petitioner was filed challenging the use of a site for dumping solid wastes, a Division Bench of the Lahore High Court comprising Justices Tassaduq Hussain Jillani and Bashir Mujahid of 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.
Dr. Parvez Hassan was appointed the Chairman of the Commission comprising, on his 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 Coordination 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 was 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 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 fertiliser on a daily basis”. 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.