GREEN LAWS IN PUBLIC INTEREST LITIGATION
A case study of Pakistani Environmental laws/Cases
By
MUHAMMAD MAJID BASHIR
B.Com., MA., LLB., DLL., DIPL., DTL., LLM
Civil judge-cum-Judicial Magistrate section 30
E-mail: judgemajid@hotmail.com
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.
KHEWRA
MINE CASE:
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
city of
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.
ROTARY CLUB
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.
M.D TAHIR,ADVOCATE
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)
This suo
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
of
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.’’