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NON-FICTION: HOW GREEN IS MY JURISPRUDENCE?

July 14, 2019

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Excessive mining of Khewra salt has permanently degraded water quality in the region | AFP
Excessive mining of Khewra salt has permanently degraded water quality in the region | AFP

In his book Resolving Environmental Disputes in Pakistan: The Role of Judicial Commissions, Dr Parvez Hassan has taken an important step in sharing his long experience of heading judicial commissions set up to resolve environmental disputes in the country. Dr Hassan is widely acknowledged as being Pakistan’s premier environmental lawyer. In this book, he brings to light the many iterations of environmental commissions that have been set up in Pakistan since the 1990s with his involvement or under his leadership. As readers will come to appreciate, the book tells a very personal tale that is commingled with national and international environmental trends.

The book details the admirable work of 10 commissions which have certainly advanced the causes for which they were set up and have achieved significant gains as ad hoc solutions to long-standing problems. But while there is nothing wrong with an ad hoc solution per se, given the environmental challenges the country faces, their long-term efficacy must be questioned. Given that a commission is set up for a given purpose — for example, whether and under what conditions should Houbara bustard hunting be allowed — it is difficult to see what institutional memory can build up or transfer from one to the next. What is also clear is that the efficacy of a particular commission is gravely reliant on the interests and tenure of a given judge. One challenge amongst the others detailed below that the book does not tackle, is the conundrum of whether all disagreements are solvable by consensus amongst relevant stakeholders — sometimes with starting positions that are diametrically opposed to each other.

Justice Syed Mansoor Ali Shah, former chief justice of the Lahore High Court and presently a Justice of the Supreme Court of Pakistan, has written the book’s preface. In it, he recounts that he and Dr Hassan share a deep concern for the environment that led to their very fruitful collaboration furthering the country’s green jurisprudence while he was at the Lahore High Court.

The importance of judicial commissions’ role in environmental protection is offset by the inadequacy of ad hoc solutions

Under Justice Shah, the Lahore High Court realised that developing environmental jurisprudence requires multidisciplinary knowledge ranging from economics to the natural sciences. In Dr Hassan, the Court found the right person to tap and lead the range of experts it needed to tackle the myriad challenges for which the Court took responsibility. As this book clearly reflects, Dr Hassan has been able to call on a wide variety of the country’s most respected citizens and professional experts to help him, on a pro bono basis, with the work of the various commissions. At times, for example, various environmental groups stepped up, for instance, to cover a particular expert’s travel costs, while relevant government departments were, in fact, directed to administratively support the work of a commission.

While such civic sense on the part of broader civil society is indeed laudable, one still ought to consider carefully and critically the efficacy of such ad hoc approaches to what are, after all, longstanding systematic problems.

Other than a brief introduction, the book does not offer a detailed account of the origins of Pakistan’s environmental jurisprudence. Some such account would have helped readers understand the social, political, economic and legal forces that led citizens to approach the courts in defence of their fundamental constitutional rights. Such an account would recount for readers the fact that, once citizens began to approach the courts for the protection of their environmental rights, the superior courts responded by expanding the meaning of ‘right to life’ in the Constitution to include the right to a clean environment, even though there is no such constitutionally protected fundamental right.

We do learn that the process began with the seminal case for environmental law in Pakistan: Shehla Zia versus Wapda. In 1994, the country’s Water and Power Development Authority (Wapda) wanted to build a high voltage grid station in a residential area in Islamabad that residents of that area objected to. Dr Hassan was counsel for the petitioner. From then onwards, the scope and place of judicially appointed commissions for causes that aim to protect the environment and people’s rights has only expanded.

Briefly, the use of commissions grew in the country, in part, when citizens began to feel the pinch from development activities, quite often led by the government, or when citizens felt that government agencies were not protecting them and the country’s natural resources from those very forces they were set up to protect against. A good illustration is the Salt Miners case. That case began as a human rights petition in 1993 and seems to have concluded only in 2015 (surely this 22-year process is too long, and the book might have explained the duration and the delay). Residents and salt miners in the area of the Khewra salt mines complained about the pollution of the water supply by excessive mining, coupled with a massive reduction of groundwater recharge of the underground aquifer which had permanently degraded the quality of their water supply and, in future years, would lead to severe reductions in water quantity accompanied by falling groundwater levels. This case clearly highlights the challenges commissions face: given developmental pressures — in this case, from mining — what is the appropriate role of ad hoc measures in which the courts compel agencies to come to the table and agree to consensus recommendations worked out with civil society groups? What is meaningful consensus after all if decision makers don’t, over time, rely on the lessons learned to alter their normal practices?

The expansion of the role and use of judicial commissions for environmental causes is a dual-edged sword. On the one hand, the fact that, through their participation in judicial commissions, citizens have a greater say in development trajectories seems to be a good thing, particularly in South Asia where citizen participation in governance decisions is relatively low. On the other hand, it is the very lack of institutional capacity on the part of administrative agencies under the executive branch of government that enables the judiciary to step in and claim an ad hoc commission-by-commission place for itself. As the pace, scale and complexity of environmental challenges grows, the country will need to commit to the sustained development of long-term institutional capacity on the part of administrative agencies — and over the long term, ad hoc judicial commissions will prove increasingly inadequate to the tasks at hand.

In this reader’s view, the book does not sufficiently clarify the scope, structure and remit of such judicially appointed commissions that aim to protect the environment. The main reason for this, it seems, is that, other than its brief introduction, the book is a printed collection of the material of various commissions, starting with the filing of writ petitions for a particular case through to the various court orders issued in the case, without any further explanatory material to offer context for these commissions.

Even more importantly, for anyone who wants to build on the work of the commissions in a systematic way, other than in its short epilogue, the book does not attempt to draw overall lessons in a way that makes it easy to see how the cumulative work done under the rubric of various commissions can be taken forward in an organised manner. In this, the publication is a lost opportunity to help readers, academics, activists and students draw useful lessons. To increase the book’s utility, perhaps the publisher or the author could develop a website to accompany the book that would host detailed materials, including the final reports and their annexures, from the various commissions the book covers.

Of course, setting up a commission that develops its broad-based findings using such devices as site visits and public hearings and relies on overcoming traditional procedural hurdles that would otherwise keep out many claimants from approaching the courts, is a big win for those who want to protect the environment. In our present situation of lack of institutional and technical capacity on the part of government agencies, it is important to acknowledge that, however imperfect commissions are, they are nevertheless — as Justice Shah calls them — “the real engines of change” for the development of environmental jurisprudence.

This timely volume gives us a glimpse of their inner workings and makes us work to imagine how they may evolve to tackle emerging challenges. Given the scale of the environmental challenges we face, we can certainly use every informational tool at hand. Academics and activists and, one hopes, government agencies most of all, will help evolve long-term sustainable norms in the mundane daily work of better environmental governance by those whose remit is the everyday task of maintaining a sustaining and sustainable ecosystem for all forms of life.

The reviewer is a Visiting Fellow at the Programme on Law and Society in the Muslim World at Harvard Law School

Resolving Environmental Disputes in
Pakistan: The Role of Judicial Commissions
By Dr Parvez Hassan
Pakistan Law House, Karachi
ISBN: 978-9698372361
502pp.

Published in Dawn, Books & Authors, July 14th, 2019