GREEN LAWS IN PUBLIC INTEREST LITIGATION
A case study of Pakistani Environmental laws/Cases
MUHAMMAD MAJID BASHIR
B.Com., MA., LLB., DLL., DIPL., DTL., LLM
Civil judge-cum-Judicial Magistrate section 30
As there is a proverb that “success breeds success” ten ideas are good but one idea put in to practice is better still. Public interest litigation in court of law gives you the true picture of this proverb.
When you practically fight cases in the interest of people at large, instead of waiting response from the authority and writing on the issues in “letter to editor” or in” news papers ”or a journal. Of course writing on the burning issues sometime motivates the general public to take action against the violator and also sensitize the authority to understand the intensity of the situation. But even then you have to knock the door of the court for the recognition of your fundamental rights.
It has been affirmed and enshrined in all the constitutions of the world that right to live is a fundamental right of all the citizens, which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life.
As this right to life is primarily based on constitutional guarantees, therefore, all acts which may cause danger to life and the living of human being and all creatures around him,will be dealt with iron hands. In other words, protection of life is a constitutional obligation of the state which a state has to perform very diligently.
A person is protected to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties .Any action taken which may create hazard of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law . Environmental laws require special attention to meet the high standard settled by the constitution towards protection of life, as the violation of environmental laws i.e. pollution and contamination would cause serious threat to human existence and create hazards to the life of the entire citizens in such situation, person exposed to such danger were entitled to claim that their fundamental rights of life guaranteed to them by the constitution had been violated. The environmental laws have been made for the protection of rights of citizen (right to life and live)
Let us solve this question that what is Environment? It means Air, water, land, all layers of the atmosphere, all organic and inorganic matter and living organisms, ecosystem and ecological relationship, buildings, structures, roads, facilities and works, all socials and economic conditions affecting community life and inter-relationships between any of the factors mentioned above.
Going through this definition, One thing comes to your mind that how we can protect this environment. The answer is Environmental law (Green Laws).
What is Environmental law, by environmental law we mean that branch of civil law that deals with issues relating to conserving, protecting and sustain ably using natural resources and controlling the spread of environmental contamination and pollution.
Environmental law further includes all international treaties and national laws, rules, ordinances and recommendations pertinent to the conservation sustainable use and protection of all elements of the earth, sea, and air and even outer space.
The word “life” as used in the said article has very broad and significant scope .While defining the word “life” I will quote the definition of the word “life” as follows;
“In Black law Dictionary “life” means that state of animals, humans and plants or of an organized being, in which its natural functions and motions are performed, or in which it organs are capable of performing their functions; the interval between birth and death. The sun of the forces by which death is restricted ….Life protected by the Federal Constitution includes all personal rights and their enjoyment of the faculties, acquiring useful knowledge, the rights to marry, establish a home and bring up children, freedom of worship, conscience, contract, occupation, speech, assembly and press”
The Hon,ble Judges of the Supreme court of Pakistan define life after a through analysis in Shehla Zia case( PLD 1994 SC 693)”The word life in the constitution has not been used in limited manner. A wide meaning should be given to enable a man not only to sustain life but also to enjoy it.
Under the constitution Article 14 provides that the dignity of a man and subject to law the privacy of home shall be inviolable the fundamental right to preserve and protect the dignity of man under Article 14 is unparallel and could be found only in few constitution of the world. The constitution guarantees dignity of man and also right to life under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity line without proper food, clothing, shelter, education, health care, atmosphere and unpolluted atmosphere”
That why the constitution comes to your help under Article 184(3) if the supreme court of Pakistan feels that the life of citizen due to violation of fundamental rights is in danger, the court may take suo motu action against the violator to check the abuse of power and misuse of authority.
Under the guarantee of the constitution Supreme Court of Pakistan and by virtue of Article 9 of the constitution a citizen can invoke these provisions of law because a large number of citizens throughout the country could not make such representation and may not like to make it due to ignorance, poverty or disability.
We are going to discuss the philosophy of the beginning of this article that’’ success breeds success “ and ten ideas and advices cant make such a impact as compare to one practical effort sincerely put by any one.
Public interest litigation (PIL) is a concept in which an individual, Association and institution filed a complaint or petition in a court of law for the protection of public interest in violation of their fundamental rights given by the state.
The beauty of this Public interest litigation is that it is a source of litigation where few people can protect the right of million of other people.
PIL can be filed only in a case where public interest at large is affected. Merely because, only person is effected by state inaction is not a ground for Public Interest Litigation.
There are some of the possible areas where public interest litigation can be filed like Environment, Human rights, Child labour, Consumer protection laws, In the field of Environment the issues are Air pollution, cutting down trees, causing noise pollution, illegal construction causing environmental pollution, Biodiversity “Misuse of natural resources.”
Here we are going to discuss the land mark cases decided by the apex court of the country in Environmental issues filed by an individual, Association in the interest of public at large as public interest litigation and the Apex courts had invoked Article 184 while performing its constitutional obligations as the sole custodian of the constitution in suo motu action. In these cases the apex courts observed that the constitutional court has to honour the guarantees of the constitution if the state and any authority do not honor it. It makes the real difference. The Supreme Court has made the difference in the following cases
SHELA ZIA VS WAPDA-(PLD 1994 SC 693)
This case was initiated by Ms Shela Zia in Supreme court as a human rights case in the interest of public against WAPDA in connection with the construction of a grid station near a residential area was challenge and protection was sought from being exposed to the. Hazards of an electro magnetic field or any other such hazards.
The Supreme Court appointed NESPAK as commissioner to examine and study the scheme, planning device and technique employed by WAPDA and to report about the likelihood of any hazards or adverse effect on health of the residents of the locality and to suggest any variation in the plant for minimizing the alleged danger.
The Supreme Court observed that the likelihood of any hazard to life by magnetic field effect cannot be ignored. At the same time the need for the constructing grid station which are necessary for industrial and economic development can not be lost sight of .From the material produced by he parties it seems that while planning and deciding to construct the grind station WAPDA and the government Department acted in a routine manner without talking into consideration the latest research and planning in the field nor any thought seem is to have been given to the hazard it may cause to human health. In these circumstances before passing any final order, with the consent of both the parties we appoint NESPAK as commissioner to examine and study the scheme planning, device and technique employed by adverse effect on the health of the residents of the locality.
It was further directed that in future prior to installing or constructing any grid station and or transmission line, they would issue public notice in newspapers, radio, television inviting objections and to finalize the plane after considering the objections if any, by affording public hearing to the person filing objections .This procedure shall be adopted and continued by WAPDA till such time the Government constitutes any commission.
Shela Zia (Late) filed this case in the Supreme Court when there was no such law available on Environment. She filed this case as human right case in the supreme court under article 184(3), and article 9.After the decision of supreme court it was seriously observed and realized that legislations on Environmental issues are badly required to protect the right of life of the citizens. The most important part of this case was the titanic struggle of the great lady. She was so consist and so persistent in following this case that at the end all NGO,s IUCN and leading lawyer of the country joined her life saving struggle as a party in the case. It was Shela Zia who can rightly be called the real force in making Pakistan Environmental Protection Act 1997.Now in all issues relating to environment every citizen of this country may file case/complaint in violation of environmental issues in Environmental Tribunals and Environmental Magistrates. One hard struggle of a citizen has made the life of millions of other citizens easy, comfortable and saves through this litigation.
HUMAN RIGHT CASE NO -120 OF 1993 (1994 SCMR 2061)
The residents of Khewra town( A hilly area where the largest salt mine of the world is
located, kalar khar, Khewra,
The residents apprehension was that in case the minor were allowed to continue and their activities, which were extended in the water catchments area, the watercourse, reservoir and the pipelines would get contaminated .Supreme court observed that in hilly areas where access to water is scarce, difficult or limited, the right to have water free from pollution and contamination is a right to life itself. This does not mean that persons residing in other part s of the country where water is available in abundance so not have such right. The right to have unpolluted water is the right if every person wherever he lives. water which is necessary for existence of life, if polluted or contaminated, would cause serious threat to human existence and in such a situation, person exposed to such danger were entitled to claim that their fundamental rights of life guaranteed to them by the constitution had been violated. The Hon’ble Supreme Court issued a restraining order against the parties and Authorities from committing such violation.
In this case the residents of Khewra Mine had activated their muscles and through an association sought a relief from the court and got this protective order from the court .Which recognized their right s of life of the citizens as a constitutional obligation on the part of the court.
ENVIRONMENT EXPLOITATION-DUMPING OF NUCLEAR WASTE HUMAN RIGHTS CASE NO 31-K/92 (PLD 1994 SC 102)
The news item was published in the daily Dawn in July 1992 as” N-Waste to be dumped in Balochistan” The Non,ble Supreme court took suo moto notice of the news item that nuclear or industrial waste to be dumped in Balochistan which was violation of Article 9 of the constitution. The court directed to the authorities that no one will apply for the allotment of the land for dumping nuclear or industrial waste. This would be clandestine act in the grab of legal ad proper business activity. The Hon,ble court directed to the Authorities that be vigilant in checking the vessel and residents that they are not engaged in dumping industrial or nuclear waste of any nature on the land in the sea or destroying it by any device.
This constitutional act of the court saved the life of million people of the locality. After this restraining order the locality is free from this harmful waste.
TRAFFIC CONGESTION –NOISE POLLUTION
Supreme Court took suo-motu action regarding the traffic congestion in the
The second important point discussed by the court regarding noise was that the Motor vehicles are not allowed to play without silencers and such vehicles should be challaned and pressure horns or multi-tones horns giving unusually harsh shrill loud or alarming voice. The Hon,ble court directed that these pressure horns should be disconnected or seized by the police
The court observed and made a reference that the Motor Vehicles Ordinance 1969 Rule 154,155,158 prohibits all these practices /offences and the police should ensure that in future these provisions of law should not be violated.
In this public interest
litigation, one Rotary club filed a complaint against the brick kilns situated
in and around
The court took action against the brick kilns owners and their operation has been banned under section 144 Cr.P.C.
The Balochistan Environmental protection agency initiated action and issued Environmental protection order under section 11 an 16 of the Environmental protection Act 1997( PEPA).All the brick kilns situated within Quetta Municipal limit have been shifted out and the Government has paid Rupees three hundred and thirty thousand (3,30,000.00) compensation to every owners.
VS PROVINCIAL GOVERNMENT,
Mr.M.D Tahir (Late) was advocate by trade. Who had been fighting for the public cause/interest. He had been highlighting the public interest issues by filing writ petitions in the interest of public. His name will be remembered as great advocate/fighter /litigant for public interest. He filed this constitutional petition before Lahore High court, has prayed for issuance of directions to the respondents to restrain the public or other high ups including heads of states, prince of UAE,/Saudi Arabia and other Muslim brother countries from hunting, killing, catching, confining caging trading and eating of meat of Houbara Bustard (Tilor), Partridge and all kinds of other birds, animals as to direct them to act strictly in accordance with the provisions of Wild Birds and Animals Protection Act, 1912,and Punjab Wildlife (Protection, Preservation, Conservation and Management)Act,1974.
The Hon’ble High Court disposed of this petition with this observation that strict action should be taken against any person or authority if commits any offence in accordance with the prescribed procedure.
SUO-MOTU CASE NO 10 OF 2005 (ENVIRONMENTA L HAZARDPOSED BY THE NEW MUREE PROJECT)
motu case was registered on the note written by Hon’ble Mr Justice Tassaduq Hussain Jillani,judge, Supreme court of
Punjab Assembly passed the New Murree Development Authority (NMDA) Act for the development
of new Murree. The NMDA is chaired by the chief
Minister of Punjab and the chief secretary and several provincial secretaries
.The Act like most other pieces of legislation, has an indemnity clause which
exempt the authority, it members and chairman from being sued of anything done
or intended to be done in good faith. It
is very interesting that when Murree is already
there, then what is the need for building New Murree. All environmental experts, departments
within Punjab government, Capital development Authority(CDA) and concerned
citizens were strongly against it.It was assessed that New Murree
Project posed a grave environmental hazard as it would destroy more than
This project was planned
Thus this project constitutes violation of Article 9 of the constitution
The Hon,ble Supreme court directed to the Government t of Punjab to stop work on the project until the requirements under the EP Act,1997 were compiled with and also give presentation on the project to the effect that it was in consonance with the principles of sustainable development and the requirements of the EP Act 1997 would be given to the court on a date and at a time convenient to it.
Further proceeding in the matter are to be taken after completion of the above legal formalities by the concerned authorities .However, it has been directed that the court should be kept abreast of the progress in the matter from time to time.
SUO-MOTU CAE NO 13 OF 2005 ENVIRONMENTAL THREAT CAUSED BY HOUSING SCHEMES
This action was taken by the Hon,ble chief
Justice of Pakistan, on a note written by Mr. justice Javed
Iqbal, judge Supreme Court of Pakistan against
the floating of housing schemes, namely
Islamabad Chalets and Pir Sohawa
valley Villas situated at a distance of two kilometers from the CDA National
Park on Margalla Hill.(beautiful green
rang of mountains goes to Himalayas, Hindu Kush
and Karakorum to Northern areas of Pakistan) About
this scheme many articles were written
by friends of nature and
environmentalist including myself, which stated that the scheme in
question would have a direct bearing on the eco-system of the Margalla Hills, the CDA national Park and the overall
environment of the Federal Capital on
account of increased traffic,
congestion, noise pollution, diminishing greenery, annihilation of wildlife,
unhygienic condition due to sewerage
from he Chalets, frequent landslide due to loosening of soil and removal of
rocks. The schemes fell in the catchments area of Khanpur
Dam, a main source of water supply to
The housing scheme also posed threat to the forest and the natural habits .Even otherwise, the area was unsuitable for the housing on account of land with excessive slope, unstable soil, subsurface ground conditions, and risk of land sliding and lack of adequate water in the immediate project area. The Pakistan Environment Protect Agency, in issuing the NOC, ignored the fact that the project would cause serious damage to natural habitat, flora fauna and recreational area, local ground water and downstream water supply and resources.
Hon’ble Supreme Court registered and issued notices to
Government and all concerned Agencies and departments in this petition under
article 184(3) of the constitution of
PUBLIC INTERST LITIGATION is a novel and recent feature of our legal system since the establishment of Human Rights (HR) cell in Supreme Court of Pakistan in 2004.This HR cell is the main reason in rapid growth and development of public interest litigation in our country. In number of cases the Supreme Court as well as many High Courts have entertained petitions and ‘’letter’’ not only by the persons or persons who can be said to be aggrieved or adversely affected in the strict sense of the terms by any action or omission by the respondents but acting pro bono publico (In the interest of public/in the benefit of public).
I feel no hesitation to say that the apex courts of
The purpose of this cell was to hold the millions of persons belonging to the deprived and vulnerable sections of humanity who are looking to the courts for improving their life conditions and making basic human rights meaningful for them. They have been crying for justice but their cries have so far been in the wilderness. They have been suffering injustice silently with the patience of a rock, without the strength even to shed any tears.
Public interest litigation in its present form constitutes a new chapter in our judicial system. It has acquired a significant and incredible degree of importance in jurisprudence practised by our courts and has evoked a lively, though somewhat controversial response in legal circle especially in the media and government sector.
This public interest litigation is responsible for the birth of new judicial concepts and the expanding horizon of active judicial power. Indeed it is really a fascinating exercise for the court to deal with public interest litigation because this is a innovative strategy which has been evolved by the supreme court for the purpose of providing easy access to justice to the weaker sections of humanity and it is a powerful tool in the hands of public- spirited individuals and social action groups for combating exploitation and injustice and securing for the underprivileged segments of society, their social and economic entitlements. It is a highly effective weapon fully lauded with morality, ethics and fundamental rights in the hand of law for reaching social justice to the common man, who is missing all his rights because of misuse of the power, deliberately ignored and denied by the authority.
Public interest litigation is part of the process of participate justice. It is a strategic arm of the judicial aid movement and is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity.
Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intend to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, the have-nots, down-trodden, handicapped and the half-hungry millions of our countrymen, uneducated, illiterate living without civic sense, safety culture, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed.
Here, I am making point……if ...’’Ignorance of law is no excuse”. Then how one can claim or take the benefit of law or constitutional guarantees which are for the protection of all citizens and not only for a literate, rich, well to do, wealthy and the affluent privileged classes, landlord, industrial tycoon, gentry or fortunate few of the society .Here comes the public interest litigation, where the courts as the custodian of the constitution, individual, Associations, organizations as representatives in the interest of millions of ignored, depressed poor people, watch their constitutional guarantees, when exists only on paper and not in reality. We should keep in mind that the welfare, protection of rights is the prime concern of the state or the public authority. It is only a co-operative or collaborative effort on the part of the complainant or petitioner.
Public, in fact welcome it, as it would give it an opportunity to protect the rights of the poor and weaker sections of the community, who can not fight their rights due to lack of knowledge, finances and proper legal guidance. The ultimate guarantee of one’s rights however lies in self-assertion. The poor and the weak must therefore be organized and made self-reliant.
It gives us an idea of public interest
litigation societies. This is a common practice in the West and
The following observations of great American Judge must always be borne in mind
“A society so riven that the spirit of moderation is gone, no constitution can save; a society where that spirit flourishes, no constitution needs save; a society which evades its responsibility by thrusting upon the court the nurture of that spirits, in the end will perish.’’