Political Economy

Environment as a fundamental right

A unique petition presented before the Supreme Court in 1994 led to environment receiving a legal cover in Pakistan

By Mohammad Shehzad

Pakistan's Constitution did not recognise environment as one of the fundamental rights until 1994. It was in 1994 when the Supreme Court (SC) was presented a unique petition. Some residents of Islamabad had approached it against the construction of a high voltage grid station by Wapda in a residential area of Islamabad. The residents led by Ms Shehla Zia apprehended that the electronic magnetic radiation of the grid station could be harmful to the residents' health.

The extraordinary aspects of this petition were: it directly sought the jurisdiction of the SC under Article 184 (3) of the Constitution; it did not pertain to any of the fundamental rights guaranteed by the Constitution. The claim was toward a right to a clean environment when the Constitution did not in any manner provide for such a fundamental right.

In this case, the SC broke a new ground: in an unprecedented judgment, it declared, the fundamental rights to life and dignity guaranteed by the Constitution, in fact, include and cover the right to a clean and healthy environment. This innovative interpretation of the rights to life and dignity has been the most salutary development to protect environment and promote sustainable development in Pakistan. Justice (retired) Saleem Akhtar was the judge who wrote this historical judgment and eminent jurist Dr Pervez Hassan was the counsel to the petitioners.

Last week, this judgment was commemorated by an association of environmental lawyers, Pakistan Environment Law Association (PELA). PELA organised a seminar, 'Green Justice through Public Interest Litigation'

in collaboration with three mainstream environmental institutions, International Union for Conservation of Nature and Natural Resources (IUCN) Pakistan, World Wildlife Fund (WWF) Pakistan and Leadership for Environment And Development (LEAD) Pakistan.

The seminar provided participants an opportunity to meet with keynote speaker Mahesh Chandra Mehta, a recipient of Ramon Magsaysay Award and Goldman Environmental

Prize. Mehta, an attorney in the Supreme Court of India, is an acclaimed environmental lawyer. In early 1984, he visited the Taj Mahal for the first time. He saw that the famed monument's marble had turned yellow and was pitted as a result of pollutants from nearby industries. This spurred him to file his first environmental case in the Supreme Court of India.

The following year, he learned that the Ganges River, considered to be the holiest river in India and used by millions of people every day for bathing and drinking water, caught fire due to industrial effluents in the river.

Once again Mehta filed a petition in the Supreme Court against the polluting factories, and the scope of the case was broadened to include all the industries and municipalities in the river basin.

At the seminar, Mehta lambasted his government for its lukewarm attitude towards the environment. He was of the view that India needed no hospitals if the government provided every citizen with clean drinking water. He informed that Delhi had become the 4th most polluted city of the world; drought and famine were staring at India; cows' milk had the quantity of mercury to a devastating level; Indian judges were not sensitised about the environment; hospitals were without any system of waste disposal, and the entire country was most fragile in terms of ecological security. Mehta was delighted to note that a culture of environmental litigation had developed in Pakistan. He stressed greater fraternity among lawyers, politicians, judiciary and civil society institutions for the cause of healthy environment.

Dr Parvez Hassan was of the view that in environmental cases, the success of the claim depended on environmental experts, their research and technical data. A lawyer must have extensive scientific data to vindicate his/her arguments. He/she must have full knowledge of international environmental legislations.

In the Shehla Zia petition, he had claimed that the construction of the high voltage grid station might endanger residents' health and safety, but there was no certainty that this would happen. While extensive scientific literature was produced to show the likelihood of harm, the respondent produced equally impressive scientific documentation to show that there would be no harm.

In these circumstances, Dr Hassan invoked the precautionary principle covered in the Stockholm and Rio Declarations. Another pioneering aspect of the SC judgment was that it acted on the precautionary principle to prevent Wapda from constructing the grid station. The court directed that in future Wapda would not construct a high voltage grid station anywhere in Pakistan without full public participation before a final decision.

The result in Shehla Zia case was beyond the expectations of the petitioners and even its counsel. In one broad sweep, the SC had laid down a law to be followed by all the courts in Pakistan: 1) environmental rights are covered in the rights to life and dignity guaranteed in the Constitution; 2) environmental rights are to be interpreted in accordance with developments at the international level; 3) commissions comprising of technical experts may he established by courts in determining complex policy issues; and 4) public participation is essential in decision-making by governmental agencies.

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