WE must be thankful for small mercies. It took President General Pervez Musharraf seven years to tell the ‘elite’ of the media that Jinnah’s Pakistan “will be no more” unless they change their ways. But the question is: how can they possibly influence the greater illiterate and uneducated uncountable majority, the ways of which need far more urgent mending than do the few countable mediamen?

The land mass of Pakistan that Jinnah cobbled together admeasured 940,093 square kilometers. After a ruling army general and a democratically elected leader of a political party had their way, in 1971 this was reduced to 796,095 sq kms.

Now, after General Musharraf’s chosen sub-leaders — the Chaudhrys and the rest of the Qs, the MQMites and the gentlemen of the MMA — continue their profitable shenanigans, what will there be left to lose come 2007 and the elections? The ruling classes are intent on denuding the entire country of all its trees and forests, destroying the environment all the way down from Peshawar to Karachi in cahoots with the builders’ and developers’ mafia, selling islands to foreign investors, putting up cement plants in protected areas, constructing desalination plants in disregard of environmental rules, thrusting foreign-owned shopping malls down the gullets of all our cities — in short, doing their best to render this country as unlivable as possible.

Again, we can only be thankful for small mercies.

Now, specifically to Karachi. A number of authorities operate and are at odds with each other in this mega city, whose population is now estimated at some 15 million. We have amidst them the federal government, the provincial government, the city district government, the Karachi Port Trust, Port Qasim Authority, the Defence Housing Authority (DHA), and the Clifton Cantonment. Right now, our city finds itself in the midst of a tussle among these seven for the control and ‘development’ of its beaches. All wish to sell, lease or rent most of the city seafront land to foreign and local so-called ‘developers’, and they all naturally wish to make money, lots of money.

Now, having eaten up all the land and open spaces available within the city limits, an attempt is being made to create more land by reclaiming the sea. The main reclamation activist is the DHA which is fast reclaiming acres of sea with the ultimate dream of transforming Karachi into Dubai, in the process making a healthy hefty profit for itself.

At the end of 2004, a company known as DHA Cogen Ltd applied to National Electric Power Regulatory Authority for permission to set up a 94 megawatt power-cum-three million gallons per day desalination plant along the seafront on the southern tip of Phase-8. The NGO Shehri sprang into action and reminded those concerned that under Section 12 of the Environmental Protection Act, 1997, the setting up such a plant required an Environmental Impact Assessment (EIA).

DHA Cogen duly complied by submitting an EIA for the establishment of a power/desalination plant. On December 19, 2004, the Sindh Environmental Protection Agency (SEPA), through notices in the press, invited comments and objections within 30 days, and fixed a public hearing for January 20, 2005.

On January 15, 2005, Shehri filed objections with SEPA. It highlighted contraventions of the National Environmental Quality Standards, including the discharge of water 15 degrees above sea temperature, brine, and chemicals which would adversely affect marine life; noise and air pollution from an industrial plant within a few hundred yards of a residential area; the negative effects of the 132,000 volt grid-station and transmission lines, etc. They also objected to reclamation of the sea-bed to site the plant, on the grounds that the ocean and its foreshore are held in trust for the public, and that the constitutional rights of all citizens were being violated.

Instead of addressing these issues, SEPA, on 15 January 15, 2005, (a Saturday) wrote to the Pakistan Environmental Protection Agency (PEPA) in Islamabad stating that DHA Cogen had requested that the project be exempted from obtaining an EIA (stringent and requiring a public hearing) and that it be allowed to obtain an IEE (less stringent, no public hearing required) on the grounds that all it was doing was setting up a 94 MW electricity generating plant.

On January 17, 2005, (a Monday), PEPA issued a one-line letter, giving no reasons, exempting the project from obtaining an EIA and requiring it to obtain a simple IEE. The agency’s efficiency is commendable, quite remarkable (as was observed this year by the Supreme Court in the context of the Steel Mills case and undue haste on the part of the government).

A public interest petition was filed by Shehri through Barrister Abdur Rahman (son of Gilbert) in April 2005 challenging this SEPA decision. On October 9, 2006, a division bench of the High Court of Sindh comprising Justices Mushir Alam and Maqbool Baqar ordered that: (1) The power-cum-desalination project did require an EIA, not merely an IEE, and as such it had been illegally sanctioned by SEPA/PEPA, and that an EIA be held, as per law, within 30 days. (2) Despite there being a bar on the construction of such a project under section 12 of the Pakistan Environmental Protection Act, 1997, since the plant was for the benefit of the public, construction could continue at the sole risk and cost of DHA Cogen; but operation of the plant was restrained until the EIA had been conducted, and, if found to be illegal, it will be stopped. (3) As the land has already been reclaimed along the seashore, the doctrine whereby the sea is held in trust for the public can now be of no avail. (4) The Government of Sindh is to constitute environmental tribunals within two months to address such ecological issues

This decision is a great boost for the safeguarding of what is left to us of the environment. It recognises that the DHA Cogen and SEPA/ PEPA did wrong and acted unlawfully. It establishes the compelling need of environmental tribunals in Sindh, about which the provincial government has been procrastinating for years. However, there are numerous points of law on which an appeal can be lodged in that final bastion of justice in Pakistan, the Supreme Court.

One major factor is the ‘public trust doctrine’, a wonderful piece of common law from the fifth century. The Roman Emperor Justinian held that “by the laws of nature, these things are common to mankind — the air, running water, the sea, and, consequently, the shore of the sea.” The wise judges of the Supreme Court will have to decide whether sections of the sea shore in Karachi and other areas of Pakistan can be privatised, commercialised or industrialised, or whether such public spaces are to be left free, open and available to all citizens — for their recreation, sitting, lounging, fishing, boating, walking, jogging, playing ball — in short, for doing whatever they like, whenever they wish.

Their Lordships will be asked to rule as to whether our beaches are to be made available to only the few (but fast expanding) rich, powerful and unscrupulous or whether the poor and disadvantaged have an equal right to access the bounties of the Almighty.

Then we have wrong-doing. In Suleman Mala vs. KBCA (1990 CLC 486) a division bench of the High Court of Sindh had stated: “We would also not allow the respondent to complete the structures on an undertaking to demolish the same on failure in legal proceedings because that will amount to permitting a premium on wrong-doing. Further, we cannot fail to observe that a tendency has lately developed in taking the law for granted.... This is a very sad state of affairs and the entire society appears to have been stricken by it. Law, thus, is observed only in its breach. Therefore, unless strict observance is enforced no respite from the present-day situation appears to be in sight.”

There can be no objections to environmentally-friendly power plants or desalination plants that comply with the law, as long as they are not situated on a beach or in the vicinity of a residential area.

Email: arfc@cyber.net.pk