The writer is a lawyer.
The writer is a lawyer.

“MAN has the fundamental right to an environment of a quality that permits a life of dignity and well-being.” This extract from the Stockholm Declaration, 1972, signifies the moment when the right to a healthy environment was made part of international law.

Through the Rio Declaration, 1992, further flesh was added; the notions of sustainable development, environmental impact assessment, the precautionary principle, polluter pays and inter-generational equity, set out in the Rio Declaration, later received recognition in national statutes and landmark judicial pronouncements.

A party to various international conventions, Pakistan showed eagerness to realise the goal of environmental and climate protection. However, so far the performance of our lawmakers has been below par. Our legislation is administrative in substance. Our chief legislation, the Pakistan Environ­­­mental Protection Act, 1997, (now a provincial statute), provides for the principles set out in the Rio Declaration. However, it fails to cater to multifaceted environmental dilemmas and the philosophy of environmental-climatic justice.

The seriousness of our lawmakers can be judged from the fact that Pakistan signed the UN Framework Convention on Climate Change in 1994. However, it enacted the Climate Change Act in 2017, and that too after the Lahore High Court, in the Asghar Leghari case, pushed the government to implement a climate change policy.

A clean environment is an inalienable right.

Recently, the court hosted the Asia Pacific Judicial Colloquium on Climate Change in collaboration with various international institutions. The purpose was to build the capacity of the judges in Asia to apply environment constitutionalism. The dignitaries who participated in the colloquium included Lord Carnwath of the UK Supreme Court, the chief justice of Sri Lanka, John Knox, UN Special Rapporteur on Human and Environment Rights, and several other internationally recognised judges, lawyers and environmentalists.

The colloquium focused on a fascinating debate: does Pakistan need to give constitutional footing to the right to a healthy environment and favourable climate?

Five decades ago, the right to a healthy environment and favourable climate was not mentioned in even revolutionary human rights documents such as the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights. The first mention of a constitutional right to a healthy environment and favourable climate is attributed to Rachel Carson who, in her book Silent Spring (1962), wrote: “If the Bill of Rights contains no guarantees that a citizen shall be secured against lethal poisons, it is surely only because our forefathers [...] could conceive of no such problem”.

Portugal in 1976 and Spain in 1978 were the first two countries to include the right to a healthy environment in their constitutions; currently, environmental rights exist in more than 95 national constitutions.

While our Constitution doesn’t explicitly recognise the right to a healthy environment and favourable climate, the superior courts have in a catena of decisions held that these rights are part of the fundamental rights embodied in Constitution. In the Shehla Zia case (1994), the Supreme Court held that the right to a healthy environment is part of the right to dignity provided in Article 14 of the Constitution.

The Lahore High Court, in the Imrana Tiwana case (2015), held that the right to protection of the environment is an inalienable right emanating from the right to life, liberty and dignity. In the Asghar Leghari case (2018), the court said that the non-implementation of the National Climate Change Policy, 2012, is adversely affecting the climate of Pakistan, leading to the violation of constitutional rights to life and dignity. For the first time, the court declared that the right to life and dignity also includes the right to a favourable climate.

The Roman Empire developed a legal theory known as the ‘doctrine of the public trust,’ founded on the idea that certain common properties such as rivers, forest, and air are held by the state in trusteeship.

It should be kept in mind that judicial activism is not a substitute for lawmaking; the state can only become a genuine trustee of the environment and climate if the right to a healthy environment and favourable climate is explicitly recognised by our Constitution in the fundamental rights chapter.

The Constitution is an organic document and it must adjust to modern developments. Its basic structure cannot be abridged but it can be advanced. An unambiguous fundamental right to a healthy environment and favourable climate can provide parliament with a clear road map to effectively legislate. It would increase the role and responsibility of the executive branch and compel even the most reluctant of judges to liberally interpret and aggressively protect environmental and climatic rights.

The writer is a lawyer.

Published in Dawn, March 20th, 2018

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