The judicial environment

October 30, 2011

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LAST weekend, the Balochistan High Court and its bar association organised a two-day Conference on Environmental Law at Quetta.

Over 300 persons participated including Chief Justice Iftikhar Chaudhry, eight judges of the BHC, four judges of the other high courts, the province’s district judiciary and tribunals, qazis and family judges, the members of the bar associations and councils, provincial secretaries of forests, fisheries and public health, the director general of the environmental protection agency, and a number of outstanding speakers from around the country.

In his keynote address the CJ said that “...it is a step in the right direction as environmental pollution and degradation is assuming cataclysmic proportions which is clearly manifested by unprecedented flooding and other climatic changes being observed in the country in the last many years.”

He went on to declare that “The goal of effective implementation of environmental laws and National Environmental Quality Standards can be achieved by a vigilant bar and a sensitised judiciary. Similarly, Environmental Impact Assessment which is an internationally recognised phenomenon and also protected under the Environmental Protection Act 1997 should be given due weight and priority before approving any project.”

Quoting from John McConnell, peace activist and the founder and creator of Earth Day, the CJP concluded: “Let every individual and institution now think and act as a responsible trustee of the Earth seeking choices in ecology, economics and ethics that will provide a sustainable future, eliminate pollution, poverty and violence, awaken the wonder of life and foster peaceful progress in the human adventure.”

This laudable initiative of Balochistan Chief Justice Qazi Faez Isa should be emulated in each of our other provinces. It sprang from his enduring interest in matters ecological, his realisation that the environment is life itself.

As he put it in his paper, Islam’s Environmental Dimension, “The web of life, the delicate balance of nature has been disturbed, and our selfishness and disdain have brought us perilously close to the abyss.”

Not many know that in 1988 he was among the seven founding members of Shehri: Citizens for a Better Environment, and remained its chairperson for four years in the mid-1990s. We owe him a debt of gratitude.

Today, Shehri is a byword in environmental advocacy in Karachi, and has spread it influence to places as far as Quetta and Lahore. The group focuses on the built and natural environment, with special emphasis on tackling illegal construction, zoning violations and related symptoms, e.g., pollution, traffic congestion, drainage, encroachments, parking unavailability, overloaded utilities and infrastructure and law and order issues.

The conference speakers dealt with a multitude of subjects covering the protection of biodiversity, water use/conservation (karezes), safeguarding fisheries (‘less fishing, more money’), better urban master-planning, sustainable forest use (chilgoza, juniper), wildlife preservation, the public trust doctrine and many related topics.

Two of the most challenging presentations directly impinged on environmental law and the critical role of judiciary and lawyers at all levels of the justice system.

Entitled ‘How to approach environmental law cases: a judge’s perspective’, Justice Syed Mansoor Ali Shah of the Lahore High Court spoke from the heart on the necessity for a judge to comprehend the big picture: to be alive to the beauty and magnificence of nature, the interconnectedness of life forms, the interdependence of ecosystems, the fundamental importance of biodiversity and respect for all life.

He pleaded that environmental cases were not local or restricted, but involved the entire community, country and planet. Remedying traffic congestion need not be only through widening roads by cutting trees, but could be achieved through amendments in the master plan: diverting traffic to other roads or moving to public transport.

Such cases did not need a ‘quick-fix’, non-implementable judgment, but benefited from a ‘continuing mandamus’ which kept the court in the supervising seat till the problem was resolved.

Unlike ordinary civil and criminal cases, environmental cases are connected with the way we live and want our children to live within limited resources, said Justice Shah. They are about human survival and have a broader canvas. They are not about deciding between one party or the other but about protecting nature and finding sustainable solutions: not the parties but the environment has to come out as a winner.

Such cases are not ‘adversarial’, but must be handled on an ‘inquisitorial’ basis, using commissions and experts to determine the facts.

Limited case law in Pakistan has failed to highlight the importance of the environment and its myriad benefits to us: we need to move on. In order to strike a balance between economic progress, development and the environment, judges must have a good understanding of the science behind issues or else will arrive at skewed positions.

For instance, the bulk of decisions against the misuse of parks are based on violation of town-planning laws: the importance of trees, the concept of recharge of the aquifer, the significance of rich ecosystems and biodiversity are not mentioned.

Faisal Siddiqui, a practising Karachi lawyer, discussed ‘Effective judicial intervention in environmental law’. He affirmed that the standard function of the superior judiciary is to keep a check on executive and legislative authorities who are in a nascent and sluggish stage in their reaction to specific environmental concerns.

He quoted a leading Indian lawyer, Fali Nariman: “‘Judicial overreach’ ... is a direct consequence of legislative and executive ‘under-reach’”. Siddiqui listed numerous adjudication procedures/mechanisms and remedies/relief evolved by superior courts for the enforcement of environmental rights.

This conference, where bench and bar worked in harmony to develop, rather than destroy, their institutions is but a start in a country where the World Bank has determined that our annual environmental degradation is in excess of seven per cent of GDP while economic progress is reduced to less than three per cent.

arfc@cyber.net.pk