Any criticism of judicial activism notwithstanding, one area where it has proved its efficacy in ensuring public welfare is environmental law. It has also contributed to the development of environmental law jurisprudence in Pakistan. Over a period of time, the higher judiciary, in a number of cases starting from the Shehla Zia Case (1994), has provided adequate relief to the public regarding its concerns about environmental degradation. The Supreme court, and the High Courts have done this by using powers conferred to them under Article 184(3) and Article 199 of the constitution of Pakistan 1973 respectively.
Article 184 (3) gives Suo Motu powers to the supreme court to take up any issue of public importance involving a violation of fundamental rights. Similarly, article 199 empowers the high courts with Writ Jurisdiction to enforce fundamental rights. In the backdrop of mounting environmental challenges and the government’s lack of implementation of the National Climate Change Policy(NCCP 2012) and Framework for Implementation of Climate Change Policy (2014-2020), the judicial intervention has done the bare minimum required to secure the environmental rights of the people.
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Understanding the matter better
It was the Shehla Zia case of 1994 that opened the floodgates for a series of Public Interest Environmental Litigations (PIELs) in the coming years. Brief facts of the case were that the petitioner Shehla Zia, along with others filed a PIL in Supreme Court against the construction of a grid station by WAPDA in a residential area of Islamabad. The counsel for the petitioner argued that it posed severe health risks to the residents of the area. The court accepted the case as maintainable under article 184(3). The Court, after having listened to the arguments of both the parties, granted a stay on the construction of the grid station. It ordered a review and a report of the grid project by the National Engineering Services of Pakistan (NESPAK) to suggest alterations and location alternatives.
The court referred to the precautionary principle provided in Rio Declaration 1992. According to this principle, if there are strong suspicions about an activity being environmentally harmful, it is better to take precautionary measures rather than wait for conclusive evidence. Later on in this case, NESPAK in its report submitted before the court concluded that sufficient mitigation measures were put in place to avoid any risk. Based on this, though the court allowed the construction of the grid station, this case became a precedent.
Because there is no express provision in our constitution about environmental rights, for the first time in Pakistan, the right to a clean and healthy environment was recognized. The court, while liberally interpreting the constitution, expanded the scope of article 9 (Right to Life) and article 14 (Right to Dignity of Man) to include the right to clean environment. This was the start of what some call the environmental revolution brought about by the judiciary in our country.
The bold approach displayed by the judiciary first in the Shehla Zia case and then in all other cases of environmental protection was not the result of some kind of emotionalism of judges. Rather, it was well grounded in some established principles of international environmental law. Some of these principles are, the Precautionary Principle of Rio Declaration 1992, Sustainable Development, Environmental Justice and Public Trust Doctrine(PTD). With the exception of PTD which will be discussed in the following paragraphs in detail, other concepts are briefly discussed here.
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Precautionary Principle of Rio Declaration on Economy and environment 1992 says when there are threats of severe or irreversible damage to the environment, lack of full scientific proof will not be used as an excuse for not taking measures to prevent the economy. Sustainable development is a principle of the Public Trust Doctrine that emphasizes the need to strike a balance between economic activity in the present and its environmental consequences in the future. Both these concepts were referred to by the Supreme Court in the Shehla Zia case.
Similarly, environmental justice is a social movement of the 1970s and 80s
It aims to mitigate the impacts of environmentally harmful economic activities on those that are unfairly exposed to them. Since Pakistan is one of the 10 most vulnerable countries to climate change, the expansive attitude of the superior judiciary in dealing with cases of environmental law is an attempt to pursue environmental justice in Pakistan.
The most important concept in environmental law is Public Trust Doctrine PTD. Expounded by Professor Joseph Saxon in the 1970s, this is a common-law doctrine that finds its roots in the Roman Emperor Justinian’s code as ‘Res Communis’. According to this doctrine, all-natural resources like water, air, lakes, forests, wildlife and parks are public property. Being people’s representatives, the government is the trustee of these natural resources. And common people are the beneficiaries of these resources which are held by the government as an inalienable trust.
Public Trust Doctrine assigns the government the responsibility of preserving them, allowing general people easy access to them and preventing their use by private entities. It also gives the public the right as a beneficiary to go against the government and against private entities in case they are using these resources. This doctrine also empowers the judiciary to provide the public with a much-needed legal avenue to protect environmental rights. In this way, PTD treats the right to a clean and healthy environment as part of fundamental human rights.
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This doctrine is a part of English and American jurisprudence through Magna Carta(1512) and a case named Arnold V Munday. Apart from that, Public Trust Doctrine is also a part of the Constitutions of the American States of Wisconsin and Pennsylvania. India has also incorporated it into its constitution under article 21. The extent to which this doctrine has influenced the movement for environmental protection is quite evident.
In Pakistan, the journey of application of PTD by the judiciary is as evolutionary as the judiciary’s own role in the development of jurisprudence of environmental law in Pakistan. The courts have impliedly applied Public Trust Doctrine, though in certain cases they have applied it by referring to its name. Sindh Institute of Urology and Transplantation and others V Nestle Milkpak Limited(2005 CLC 424) was the first case in Pakistan in which PTD was directly applied by the court. The first case of its implied application was the Ardeshir Cowasjee Case before the supreme court of Pakistan. Other landmark cases regarding the application of PTD in Pakistan are Cutting of Trees Suo Moto by Lahore High Court.
The court explained comprehensively the scope of PTD in Pakistan. Another very important case was the Imran Tiwana case where Justice Mansoor Ali Shah enlarged its scope by including the Environmental Impact Assessment(EIA) in it. The methodology adopted by courts in the application of PTD includes appointing commissions and committees of experts and providing injunctive relief to the people without providing damages. As stated by courts in various cases, the aim of applying the Public Trust Doctrine is to make sure inter and intra-generational environmental justice.
Judicial activism of the courts, how well-intentioned it may have been, has had to face criticism in the past. And its role in environmental law is no exception as well. One major criticism is that it violates the rule of law by interfering in the laws made by the legislature after popular demand. It becomes the rule of the judge and not the rule of law. This way, it also violates the concept of popular sovereignty. Another oft-repeated criticism of judicial activism is that it undermines the concept of separation of power. The critics point out that by interfering in policy matters, the judiciary is trampling upon the authority of the executive and legislature.
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It is also destroying democratic principles
As far as the criticism of the approach of the courts relating to environmental law is concerned, I think it is a bit misleading. The reason I say this is that Pakistan is a developing country both in terms of democracy and economy. When it comes to tackling environmental challenges, it not only faces capacity and infrastructure-related issues but also suffers from a lack of political will to implement already existing policies. In this scenario, judicial activism is a gap filler in the absence of a viable policy implementation mechanism.
The courts should not interfere in policy matters, but if there is a violation of law, constitution, or a violation of fundamental rights, then the courts have to perform their constitutionally assigned role, which is to preserve public interest and enforce fundamental rights. That courts have established time and again that the right to life includes the right to a clean and healthy environment. So, whenever people are deprived of their right to a clean and healthy environment, courts will protect their right to life.
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Judicial activism is a necessary evil. No doubt, it can never be a substitute for a proper and popular consensus-based policy. But, in an educationally backward, economically developing and politically polarized country, it is more of corrective response to political failures in a democratic process than undemocratic or unaccountable interventions.
Written by: Usama Jamil and Hafiz Mudassir Rizwan
The writers are law students at PULC. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space