Brief Statement Regarding Legal System and Role of Judiciary in Pakistan in dealing with Environmental Cases Justice Sayed Hamid Ali Shah” I. Introduction A. Environmental Issues Pakistan is a Federal Republic comprising the Islamabad Capital Territory, the four Provinces of Balochistan, North West Frontier, Punjab and Sindh, and the Federally Administered Tribal Areas, It has a population of about 160 million. The country adopted a Constitution in 1973, which has survived repeated amendments by military Governments. Pakistan was one of the earlier countries in the Asia Pacific Region to promulgate, in 1983, a national framework law on environmental protection. Population pressures, misallocation of national resources and the lack of enforcement of the framework environmental law, however, has led to a situation where 160 million people face the challenge to have basic amenities of life including clean water and clean air. Pakistan's cities, burdened with an ever-increasing exodus from rural areas, are bursting on the seams faced with the challenges of housing, public transportation, health care and disposal of wastes; the forest cover, a crucial guordion of the climate and soil, at about 4 per cent, is one of the lowest in the world; the Indus river system is threatened with salinity and water logging: the rivers and public waters have become repositories of untreated chemicals, industrial and domestic wastes which threaten the food chain that depends on it; the mangroves, one of the largest eco-systems of its type in the world, are threatened by land-development activity and pollution: the menace of increasing desertification continues to overwhelm the country: in spite of gains in other areas as a result of schemes of trophy hunting supported by local communities, the wildlife heritage is under serious threat: growing energy needs are not adequately ‘met: and the cultural heritage is the victim of neglect and inattention, 8. Principal Environmental Laws 1 General Laws (1) The Constitution of Pakistan, 1973 (the Constitution’) Paramount document is the Constitution of Islamic Republic of Pakistan, 1973. It safeguards the fundamental rights as to life and health of a citizen. The reference to environment finds mentioned in the concurrent list, Item 24 of the Constitution that provides, environment pollution and ecology, as a concurrent subject that can be legislated by both the Federal Government and the Provinces, (2) Other Relevant Laws “B.A. (Punjab), LLB. (Punjab), Judge ofthe Lahore High Cour, Lahore, PakisanThe general Federal and Provincial laws that include some provisions include the Pakistan Penal Code, 1860: the Code of Criminal Procedure, 1868: the Canal and Drainage Act, 1873; the Explosives Act, 1884: the Forest Act, 1927; the Factories Act, 1934; West Pakistan Fisheries Ordinance, 1961; West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance, 1968; the Agricultural Pest Ordinance, 1971; the Territorial Waters and Maritime Zones Act, 1976; the Motor Vehicles Ordinance, 1965; and the Provincial Wildlife Protection Ordinances. The first commitment to a framework environmental law, however, was brought about in 1983 by the Pakistan Environmental Protection Ordinance, 1983. 2 Pakistan Envir | Protection Ordi (the 1983. 7 The main object of the 1983 Ordinance was to ‘provide for the control of pollution and preservation of living environment and for matter connected therewith or ancillary thereto’ (preamble) At the Federal level, the 1983 Ordinance established the Pakistan Environmental Protection Council (PEPC) as the supreme policy-making body supported by the Pakistan Environmental Protection Agency (PEPA). The PEPA was, ina way, the implementational arm of the PEPC. Four Environmental Protection Agencies (Provincial EPAs) were also established at the Provincial level and each of them is mandated to work under the policies laid down by the PEPC and implemented by the PEPA Section 8 of the 1983 Ordinance, the main substantive provision, broke new ground in providing for and requiring an Environmental Impact Assessment (EIA) for developmental projects, The EIA was required in relation to projects, the construction or completion of which were likely to adversely affect the ‘environment, It was also required that the EIA be filed with the PEPA at the time of planning such projects and was to include information on the impact on the environment of the proposed project, the treatment works of the proposed project, the unavoidable adverse environmental effects of the proposed project ‘and the steps to be taken by the project proponent to minimise adverse environmental effects. Thus, although the EIA was required as a pre-requisite for future developmental activity, the implementation of this provision was subject to future Governmental regulation in this respect, which never took place. Thus, the only substantive provision of the 1983 Ordinance was, in fact, still-born, 3. Pakiston Envir tection Act, 1997 Act) The 1997 Act, which replaced the 1983 Ordinance, provides for the protection, conservation, rehabilitation and improvement of the environment, for prevention ‘and control of pollution, and for the promotion of sustainable development. It expanded on the environmental matters covered in the 1983 Ordinance. The 1997 ‘Act was unigue in that, to enhance its ownership, its enactment followed a public debate about its scope and content.The 1997 Act retained the institutional framework of the 1983 Ordinance. The PEPC continued to be the supreme policy-making body, supported by the PEPA, and Provincial EPAs. The PEPC is mandated to approve national environmental policies within the framework of a national conservation strategy as may be approved by the Federal Government from time to time (Section 4), Provincial Sustainable Development Funds have been established to provide financial assistance to suitable projects (Section 9). Discharges or emissions in excess of the National Environmental Quality Standards (NEQS) established by the PEPC or other standards established by the PEPA have been prohibited, The Federal Government has been empowered Yo levy a pollution cherge on persons not complying with the NEQS (Section 11(2)). A two-stage environmental screening process has been introduced for proposed projects involving the filing of either an Initial Environmental Exomination (IEE) or, for projects likely to cause an adverse environmental effect, a comprehensive EIA, Import of hazardous waste has been prohibited (Section 13). Handling of hazardous substances has been prohibited except under license (Section 14). To ensure compliance with the NEQS, the PEPA and Provincial EPAs have been ‘empowered to direct that motor vehicles shall install such pollution control devices ‘or use such fuels or undergo such maintenance or testing as may be prescribed. The PEPA and Provincial EPAs have been empowered to issue the Environmental Protection Orders (EPO) to deal with an actual or potential adverse environmental effect in violation of the provisions of the 1997 Act. Environmental Tribunals have been constituted with exclusive jurisdiction to try serious offences under the 1997 Act. Minor offences relating to pollution by motor vehicles, littering and waste disposal and violation of rules and regulations are to be tried by Environmental Magistrates. An aggrieved person can file @ complaint with the Environmental Tribunal after giving 30 days notice to the PEPA or the Provincial EFAs concerned, 4, Rules and Regulations Section 31 of the 1997 Act enables the Federal Government, by notification in the Official Gazette, to make Rules for carrying out the purposes of the 1997 Act, including Rules for implementing the provisions of international environmental agreements specified in the Schedule of the 1997 Act. The 1997 Act also grants powers to the PEPA, to make Regulations,’ with the ‘approval of the Federal Government, by notification in the Official Gazette, that ‘are consistent with the provisions of the 1997 Act and the Rules made under it (Section 33), Section 33(2) of the 1997 Act sets out that the Regulations may provide for submission of periodical reports, data or information by any Government Agency, local authority or focal council in respect of environmental matters: preparation of emergency contingency plans for coping with environmental hazards and pollution caused by accidents, natural disasters and calamities; ‘appointment of officers, advisors, experts, consultants and employees: levy of fees, rates and charges in respect of services rendered, actions taken and schemes implemented: monitoring and measurement of discharges and emissions: categorization of projects to which, and the manner in which, the provisions of the 1997 Act relating to EIA apply: laying down of guidelines for preparation of initialenvironmental examination and environmental impact assessment and development of procedures for their filing, review and approval: providing procedures for handling hazardous substances: and installation of devices in, use of fuels by, and ‘maintenance and testing of motor vehicles for control of air and noise pollution. The following Rules and Regulations have been notified to date: (Rules: (2) National Environmental Quality Standerds (Self -Monitoring and Reporting by Industries) Rules, 2001; (O)Provincial Sustainable Development Fund (Procedure) Rules, 2002, Provincial Sustainable Development Fund (Utilization) Rules, 2002: (6) Industrial Pollution Charge (Calculation and Collection) Rules, 2002; (a)Environmental Samples Rules, 2001; (e) Hospital Waste Management Rules, 2005; (f) Environmental Tribunal Rules, 1999: and (9) Pakistan Bio-safety Rules, 2005. (2) Regulations: (@) the Review of IEE/EIA Regulations, 2000! (6)the Environmental Laboratories Certification Regulations, 20012 © Institutions and Governance Structures 4 The Federal Ministry A Federal Minister of Environment was first appointed in the Federal Cabinet in March 1989. This has continued since 1989. The Federal Minister is supported by the Ministry of Environment headed by a Federal Secretary. 2 PERC The PEPC was established in 1983 as the supreme environmental policy-making body in the country. The President of Pakistan was to act as Chairman, the Federal Minister For Environment as Vice Chairman, the Governors of the four provinces as members, any other persons as appointed by the Federal Government as members and the Secretary to the Government as the Secretary of the PEPC. The PEPC wes continued, with some changes made by an amendment in 1994, after the enactment of the 1997 Act. Under Section 3 of the 1997 Act, the Prime Minister or his nominee shall be the Chairperson of the PEPC and the Federal Minister for Environment shall be its Vice Chairperson. Chief Ministers of the four provinces and other ministers for environment shall be its members. Further, such other persons not exceeding thirty-five as the Federal Government may appoint, of which at least twenty shall be non-official, shall be members of the PEPC. The aon- official members shall be drawn from civil society including five representatives of the Chambers of Commerce and Industry and industrial associations and one of more representatives of the Chambers of Agriculture, the medical and legal professions, trade unions and non-governmental organisations concerned with the 1ory Notification SRO No. 339(1¥2000 dated 13 June 2000. fry Notification SRO No. 254(1)2000 dated 10 February 2000, "see. The Gaza of Pak The Gazt of Pakienvironment and development and scientists, technical experts and educationists shall be members. The Federal Secretary far Environment shall be the Secretary of the PEPC. The powers and functions of the PEPC are set out in Section 4 of the 1997 Act. The PEPC shell coordinate and supervise enforcement of the provisions of the 1997 Act: approve comprehensive national environmental policies and ensure their ‘implementation within the framework of a national conservation strategy as may be approved by the Federal Government from time to time: approve the National Environmental Quality Standards: provide guidelines for the protection and conservation of species, habitats, and biodiversity in general, and for the conservation of renewable and non-renewable resources: coordinate integration of the principles and concerns of sustainable development into national development plans and policies; and consider the National Environmental Report and give ‘appropriate directions thereon. 3. PEPA The PEPA, established under the 1983 Ordinance and continued under the 1997 Act, is headed by a Director-General to be appointed by the Federal Government, who shall exercise and perform the powers and functions of the PEPA and may delegate any of the powers and functions to the administrative, technical and legal staff of the PEPA to be appointed by the Federal Government. The primary responsibility t0 administer and implement the provisions of the 1997 Act lies with the Director-General of the EPAs under Sections 6 and 7 of the 1997 Act. However, Section 26 of the 1997 Act specifically deals with the issue of delegation of functions and powers and enables the Federal Government 10 delegate any of its or Federal EPA's functions and powers including, to the Provincial EPAs. Section 5(6) provides that, in order to assist the PEPA, the Federal Government shall establish Advisory Committees for various sectors, and appoint as members thereof eminent representatives of the relevant sector, educational institutions, research institutes and non-governmental organizations. The functions of the PEPA are set out in Section 6 of the 1997 Act and its powers care set out in Section 7 of the 1997 Act. The functions of the PEPA inclide the ‘administration and implementation of the provisions of the 1997 Act and the Rules ‘and Regulations made under it; the preparation, in coordination with the ‘appropriate Government Agency nctional environmental policies for approval by the PEPC: taking oll necessary measures for the implementation of the national environmental policies approved by the Council: preparation and publication of an ‘Annual National Environment Report on the state of the environment: preparation or revision and establishment of the Notional Environmental Quality Standards with approval of the PEPC: ensuring enforcement of the National Environmental Quality Standards: and establishing standards for the quality of the ambient air, water and land, by notification in the Official Gazette, in consultation with the Provincial Agency concerned, 4, The Provincial MinistryAt the Provincial level, all four provinces have Environment Ministries headed by a Provincial Minister and Environmental Departments headed by a Provincial Secretary. For enforcement at the Provincial level, Section 8 of the 1997 Act directs the Provincial Secretary Environment to establish Provincial EPAS. 5. Provincial EPAS Provincial EPAs are established under Section 8 of the 1997 Act to exercise and perform such powers and functions as delegated by the Provincial Government under Section 26(2) of the 1997 Act. The Provincial EPA shall be headed by a Director-General to be appointed by the Provincial Government who shall exercise and perform the powers and functions of the Provincial EPA, The Director-General may also delegate any of the powers and functions to any of the administrative, technical and legal staff to be appointed by the Provincial Government. Section &(6) of the 1997 Act provides that, in order to assist the Provincial EPA in the discharge of its functions, the Provincial Government shall establish Advisory Committees for various sectors and appoint members from amongst eminent representatives of the relevant sector, ‘educational institutions, research institutes and non-governmental organizations, 6, Other Relevant Federal Ministrie je In addition to the above Federal Ministries and Provincial Departments and Agencies, there are other Ministries at the Federal level and Departments at the Provincial level that deal with environmental issues, At the Federal level, these ‘include the (a) Ministry of Food, Agriculture and Livestock (MINFAL), (b) Ministry of Health, and (c National Environmental Co-ordination Committee (NECC) previously the Marine Pollution Control Board (MPCB). The Departments of Local Government anc of Forest and Wildlife are important at the Provincial level. 7 Marine Pollution Control Board In 1994 the Government of Pakistan set up the MPCB to supervise and implement pollution control and prevention measures along Pakistan's coastline. The cabinet entrusted the functions of MPCB to the NECC in September 2001, envisaged in Section 7(k) of the 1997 Act. NECC will continue to suggest measures for prevention and elimination of marine pollution, 8. Local Governments After the promulgation of the Provincial Local Government Ordinances (PLEQ) in 2001, the District Governments were established consisting of Zilla Nazim and District Administration departments. The new system of local governance has been designed to efficiently address the specific needs and problems of each district. The District Government is responsible to the people and the Provincial Government for improvement of governance and delivery of services. District Officer Environment