CLIMATE justice must begin at home. Increasing human and economic losses from climate-induced disasters has spurred a national debate in the country. Globally, too, many activists and policymakers urge compensation or reparation for countries that are low carbon emitters. It will take years to evolve international mechanisms, agreed principles, and functioning institutions for global climate justice. But Pakistan has begun to develop a rich foundation for climate justice in its domestic legal system that is forward-looking. It awaits enforcement and compliance. Fuller ownership by the government can put Pakistan in the driving seat of delivering climate justice.
The recent rains may have been climate-induced but the losses were not. Most human and material losses occur because of vulnerability. It is made worse by inequitable resource allocation and weak governance reflected in poor planning for human settlements, absence of resilient infrastructure and an absence of or disregard for zoning laws, construction guidelines, standards and material. By simplistically attributing losses to climate change, we divert attention from the core issues of climate justice at the local community level. Global climate justice will remain elusive for Pakistan unless anchored internally in our policies.
The principles of environmental and climate justice were initiated only 50 years ago with the Stockholm Declaration. These principles were refined and globally adopted at the Earth Summit in Rio de Janeiro 30 years ago. Together with efforts to operationalise the United Nations Framework Convention on Climate Change, they have shaped the jurisprudence of climate justice mainly in i) constitutional law and human rights, ii) planning, licensing and permitting, iii) company laws, and iv) private law that determines relationship between individuals.
The Stockholm Declaration led to Pakistan’s first environmental legislation and establishment of the environment ministry and environment protection agencies. All multilateral environmental agreements and environmental conventions since 1972 have also been inspired by the Declaration. Pakistan has signed almost all of them, but their implementation has remained weak, mostly because the early legislation of the 1990s languished.
Several judgements have defined the parameters of climate justice in the country.
Pakistan was, however, quick on its uptake of the principles adopted in Rio in the realm of constitutional law and human rights, starting with the famous Shehla Zia case in 1994. Justice Saleem Akhtar adopted the precautionary principle that has informed numerous subsequent judgements. Later, the superior courts also adopted some other international principles, particularly in dubio natura (‘when in doubt, support nature’), environmental justice and climate rights, principles of public trust, and the mandamus doctrine of instructing officials to correct an abuse of discretion.
Since words like ‘environment’ or ‘climate change’ are not used in the Constitution, several judgements have enriched Article 9, which deals with the right to life and associated rights in other articles, including right to property, privacy, dignity and self-respect — aspects threatened by the recent floods. By enlarging the definition of the right to life, the concept of human rights has been enlarged to include issues pertaining to quality of life, well-being and a healthy and safe physical environment. Environmental and climate rights go hand in hand and are inseparable. Redefining these rights has empowered citizens to hold governments accountable on their climate rights.
Several judgements have defined the parameters of climate justice in our domestic jurisdiction. Starting with the Asghar Leghari case (2015) that articulated citizens’ climate rights and governmental obligations, Justice Mansoor Ali Shah has, in several decisions, addressed the need for the integrity of ecosystems, groundwater and forest resources. Justice Athar Minallah’s groundbreaking ruling has underlined the need for climate adaptation, resiliency and sustainability to keep in step with our constitutional values of social and economic justice. In another case, he warned city administrators against modifications in master planning documents as any changes in land use would lead to adverse environmental consequences. In yet another, he determined that the neglect of animal well-being has implications for the right of life of humans as guaranteed under Article 9. Likewise, Justice Jawad Hasan has made important judgements on urban forests, food waste and biodiversity in Murree to protect mountain ecosystems, based on internationally recognised grundnorms.
In a remarkable innovation, the superior courts set up several commissions led by Dr Parvez Hassan, the country’s most eminent environmental jurist to lead the process of bringing key stakeholders together and build consensus, capacities, and communities of knowledge. Showing eagerness for climate action, the judiciary has begun to constitute standing committees for implementation. In the Asghar Leghari case, the Climate Change Commission was asked to act as a link between the federal and provincial governments and the Council of Common Interests to ensure that the climate policy was implemented. In another case involving CDA, a standing committee was constituted and encouraged to approach the court for an appropriate order for the enforcement of the fundamental rights of the people in the context of climate change, whenever required. Regrettably, the development has been uneven. These decisions have not always seeped into lower courts. Environmental tribunals have not always functioned effectively, as the governmental commitment to climate justice has remained suboptimal.
Finally, an important dimension of climate change is inter-generational justice and the need for climate democracy. As Justice Shah articulated in one of his judgements: “…Democracies have to be redesigned and restructured to become more climate resilient and the fundamental principle of rule of law has to recognise the urgent need to combat climate change … The preambular constitutional value of democracy under our Constitution is in effect climate democracy…” Pakistani courts have defined the anchors of climate justice for Pakistani citizens. These can inform government policies, plans and financial allocations to strengthen climate justice. Taking up the global cause is important, but not sufficient, unless we begin delivering climate justice at home.
The writer, an expert on climate change and development, has based this article on a presentation he gave at the recent International Judicial Conference by the Law & Justice Commission of Pakistan.
Published in Dawn, October 20th, 2022