By Ahmad Rafay Alam
Under the 18th Amendment, the subject of environment and natural ecology, which could be found under the Concurrent List of the Constitution, was devolved to the provinces. The Concurrent List was abolished and now the word environment does not even appear in our Constitution. The Right to a clean and healthy environment, however, has been read into our Right to Life by the Supreme Court of Pakistan and whatever legal protections afforded to this precious and neglected Fundamental Right have come from a strong jurisprudence evolved by our Courts.
At the Federal level, the 18th Amendment saw the dissolution of the Ministry of Environment and the creation of a new Ministry of Climate Change. The Ministry must now develop programmes to meet the water, food and energy security issues posed by an increasingly unpredictable Mother Nature as well as prepare the country for increased incidences of natural disasters, spread of disease.
In September, after years of preparation and stakeholder consultation, the Federal Government adopted its first Climate Change Policy. Skeptics continue to question the capacity of the Ministry of Climate Change or the Federal Government’s commitment to prioritise climate change, the adoption of the Policy, which is a remarkable intersectoral document, is at least a step forward. Civil society, NGOs and stakeholders now have a policy document with which to remind their government of its responsibility.
Several other national issues have environmental dimensions that otherwise escape review. The water sector continues to pose challenges. With urban areas more and more frequently reporting impure drinking water sources and with contaminated water remaining the norm in rural areas. Access to clean drinking water is becoming elusive. The country stands at the face of a drinking water crisis as every other person visits hospital because of suffering from water-related ailments. The previous Government’s Clean Drinking Water for All Programme was a non-starter and the present government decided to wrap the project.
Over 90 percent of Pakistan’s water resource is used in agriculture. The agricultural sector employs nearly half of the workforce and generates a quarter of GDP. Climate change threatens monsoon and glacial melt patters and changes to these will affect the national economy and livelihoods. Major reform in the water sector, which would include better water management and irrigation practices, a better water regulation system, effective pricing for cost recovery, remain pending with no real change at the ground level. So far, we have only been able to blame India – alleging it is in violation of the Indus Waters Treaty – when most of our water issues of our own making and can be resolved through political commitment.
The country remains in the grips of an energy crisis. Floods and glacial melt, and the silt they carry, have reduced the storage capacity of our water reservoirs and have also reduced hydropower production. An unusually long winter and delayed melting of glaciers were blamed for power shortages in June.
Our natural gas resources are also diminishing. The gas shortage is forcing restrictions on the use of gas for CNG in transport in favour of use by industry. As of last year, one in five automobiles consumed CNG. (The previous government boasted this as a great achievement to its commitment to reduce greenhouse gas emissions. It is altogether a different point that Pakistan, with its already low greenhouse gas inventory, needs to focus on adoptions strategies rather than measures to mitigate global climate change.)
Over the course of the year, the Supreme Court of Pakistan heard several cases related to natural resources. These were cases that dealt with the mineral concessions granted by the Government of Baluchistan to the Tethyan Copper Company and CNG. Environmentalists hoped these cases would yield jurisprudence on the regulation of natural resources and the rights of investors in the natural assets of the country. However, the Court’s decisions turned on the transparency of related transactions. An elaboration on the law of natural resources remains elusive.
As of 2012, the responsibility to legislate upon and regulate the environment and natural ecology vests in the provinces and it is now the responsibility of the provincial governments to take charge of this new responsibility. However, with environmental pollution costing tens of thousands of lives and placing an enormous burden on our national exchequer – Over US$ 1 billion a month according to a former Minister of State for Environment – the task is daunting. The question remains whether the provinces are up to or even aware of their new responsibility.
Save for the Punjab, which has enacted the Punjab Environmental Protection (Amendment) Act, 2012, adopting the Pakistan Environment Protection Act, 1997, a Federal legislation, to the framework of the province, the other provinces have not enacted new environment legislation after the 18th Amendment. These provinces continue to apply the old Federal legislation. While that law is still valid, complications between province and federal jurisdictions arise. For example who is to appoint the Technical and Legal Members of the Environment Protection Tribunal of Khyber Pakhtunkhwa, which remains defunct as a consequence?
In Punjab, the newly enacted legislation allowed the Provincial Government to constitute its own Environment Protection Tribunal and appoint its members. This Tribunal sits in Lahore and has yet to process a considerable backlog as well a roster of new cases. It remains to be seen whether this forum will produce jurisprudence from this opportunity or be subsumed by the challenge.
With the provinces lagging on their obligations towards the environment, it was the judiciary that once again demonstrated its commitment to this cause. In May, the National Judicial Conference resulted in the establishment of “Green Benches” in the Supreme Court and High Courts that would hear environmental cases. The Lahore High Court took the initiative and, in June, passed orders in a public interest petition seeking the clean-up of the River Ravi to establish a River Ravi Commission to make proposals regarding sustainable solutions to the problem. The Commission submitted its interim report in December with a pilot proposal to set up a constructed wetland near the River Ravi. The Court, making precedent, directed the report be made public and that comments be elicited from the public-at-large. This is a remarkable example of stakeholder inclusion in a major infrastructure project.
Another remarkable example of public-private partnership strengthening the environment was the tabling, by the Government of Punjab, of a Lahore Canal Heritage Park Bill. The Bill is the outcome of the Supreme Court’s decision last year in the Lahore Canal Road widening case and the efforts of civil society groups such as the Lahore Bachao Tehreek, Lahore Conservation Society and WWF-Pakistan. The Bill is currently before the Punjab Assembly but the Assembly’s Standing Committee on Housing, Urban Development & Public Health Engineering invited civil society to deliberate on the Bill, setting another example of how civil society can engage in the law making process. The environment of Pakistan has nothing but gain if civil society continues to fight for its cause.
Ardeshir Cowasjee, a great son of Karachi, passed away in November. He will be remembered as a columnist, philanthropist, public interest litigator, tycoon, designer, patron of the arts, animal lover, wit and conscience of a people; but he will also be remembered as a man who stood for the trees. His daughter Ava told me how, many years ago, Cowasjee noticed that the tree outside the Sindh High Court was about to be felled. He asked the contractors present to hold on for ten minutes and walked into the Chief Justice’s chambers, demanding a short order and cup of tea. A few minutes later, having had his tea, he walked out of the chamber and handed the contractors a stay order. The tree still stands. Mr. Cowasjee will be remembered forever for his noble cause.
The writer is Vice President, Pakistan Environmental Lawyers Association