PUBLIC TRUST DOCTRINE AND ENVIRONMENTAL ISSUES BEFORE THE SUPREME COURT OF PAKISTAN*

By:
DR. PARVEZ HASSAN**
and
AHMAD RAFAY ALAM***

A. Introduction

Suo Motu Case No. 25 of 2009 (Cutting of Trees for Canal Widening Project Lahore), announced on 15 September 2011 (the “Lahore Canal Road Case”) is a landmark decision in the jurisprudence of Pakistan.[1] It follows a trajectory of pioneering environmental law decisions taken by the Supreme Court of Pakistan that date back to and are part of the legacy of the Shehla Zia case.[2]

The Lahore Canal Road Case demonstrates that the Supreme Court of Pakistan is a great supporter of environmental causes in Pakistan. It has, through the purposive interpretation of Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), laid new ground for environmental issues to be understood in a legal framework. Through the exercise of its suo motu jurisdiction, the Court has created a mechanism by which civil society can participate in the development process. Proof of the Supreme Court’s unique support is established by the fact that there is no provision on the environment as a Fundamental Right in the Constitution.

This article attempts to place the Lahore Canal Road Case in the context of public interest litigation and the Supreme Court’s development of innovative methods to resolve complicated issues of environmental law and regulation.

B. Evolution of Judicial Response to Environmental Causes

1. The Birth and Growth of Public Interest Litigation (“PIL”)

The seeds of PIL were planted in Pakistan in the mid to late-1980s by such luminaries of the legal fraternity as Chief Justices Muhammad Haleem, Afzal Zullah, and Nasim Hasan Shah. In the wake of a newly re-introduced Constitution,[3] elements within judicial circles began to debate the question of how the fundamental rights enshrined therein could be effectively enforced by a population which was (and is) largely ignorant or unaware of their rights. Part of the answer to this question was identified as a “massification” of society; where citizens were “increasingly … drawn together” on the basis of rights and interests[4]. Former Attorney General, Ali Ahmad Fazeel, and Chief Justice of Pakistan, Nasim Hasan Shah, also recognized the phenomenon of “massification” and, carrying the principle to its logical conclusion, were able to formulate more concrete answers to the question: That the enforcement of the rights of groups of people could be achieved if the law recognized the enforcement of rights beyond the concept of the aggrieved person; that justice for all could be served if the rights of groups of people could be enforced.[5]

However, in order to provide this “justice for all”, certain well-established legal principles had to be modified. This was achieved with the decision of the Apex Court in the Benazir Bhutto case. In this leading judgment, Chief Justice Haleem began by pointing out that the adversarial nature of litigation engendered by the Pakistani procedural systems was ill-suited for granting relief to a large number of unidentified litigants. Under such an essentially “Anglo-Saxon outgrowth”[6] only a person wronged could initiate legal proceedings. Indeed, one Chief Justice of the Lahore High Court implied that, because of the adversarial nature of legal procedures, “the doors of the traditional legal system in a way have been closed to the poor.”[7] Another Chief Justice of Pakistan, Ajmal Mian went as far as to say that the adversarial system was an “inherited evil”.[8]

Relying on the Indian Supreme Court case of S.P. Gupta v. President of India[9] to formulate an innovative argument based on the “triad of provisions which saturate and invigorate the Constitution, namely the Objectives Resolution (Article 2-A), the Fundamental Rights and the directive principles of State Policy”, Chief Justice Muhammad Haleem was able to mould the law relating to locus standi[10] into the following formulation:

It is therefore permissible when . . . in other cases where there are violations of Fundamental Rights of a class or a group of persons who belong to the category as aforestated and are unable to seek redress from the Court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest litigation can be made use of, if it is brought to the notice of the Court by [a] person acting bona fide. [11]

Within two (2) years of the Benazir Bhutto case, the Chief Justice of Pakistan exercised his suo motu powers (one of the most striking features of the PIL jurisdiction) to convert a letter revealing violations of fundamental rights into a petition under Article 184(3) of the Constitution, and marked the same to be heard by Mr. Justice Afzal Zullah (as he was then). Dharshan Masih’s case[12] was one of the first examples of the exercise by the superior courts of their new suo motu jurisdiction, and within a few years, a number of remarkable PIL cases had been decided.[13] In 1991, Chief Justice Afzal Zullah had taken the PIL initiative and was instrumental in passing what has now become known as the Quetta Declaration.[14] This declaration re-affirmed the superior judiciary’s intention to bring social justice to all, and was a milestone in the early existence of PIL in Pakistan. By 1993, Chief Justice Nasim Hasan Shah reported that “over 600 subjects [had been] classified [as] requiring action” under the PIL jurisdiction.[15] Some would argue that the early to mid-1990s was the golden age of the development of PIL.[16]

2. The Increasing Focus on Environmental Issues: The Legacy of Shehla Zia

Environmental degradation, compounded by the challenges of climate change, has come to the fore in Pakistan over the past decade. The Government of Pakistan, in recognition of its concern over the state of the environment, declared 2009 as the “Year of the Environment”. The Prime Minister of Pakistan has acknowledged the immense human and capital cost of environmental degradation in Pakistan.

The Supreme Court of Pakistan has remained abreast of issues of environmental degradation. In fact, it has played a pioneering role.

The Pakistani Constitution was drafted at a time when awareness of environmental rights, both locally and internationally, was still nascent.[17] Environmental rights are notably absent from its familiar catalogue of rights to equality, religion and property.[18] The only reference to the environment, in the unamended 1973 Constitution, was in a schedule to the Constitution that provided, in the Concurrent List, that “environmental pollution and ecology” can be legislated by both the provinces as well as by the Federation[19]. The Eighteenth Amendment (2010) has abolished this Concurrent List in the Fourth Schedule of the 1973 Constitution and “environment pollution and ecology” has, since 19 April 2010, become a provincial subject. There are no Directives of State Policy or of Fundamental Rights concerning the environment.

This absence of specific treatment of environmental concerns posed a serious problem to a group of petitioners who wanted to challenge the construction of a high voltage grid station in a residential area in the Pakistani capital, Islamabad. The residents were apprehensive of the public health effects of electro-magnetic radiation posed by the proposed grid station and were also concerned at the violations of the city’s green belt regulations. The co-author, Dr. Parvez Hassan, who was the counsel to the petitioners, had to draw on the extensive environment-related case law in India on the constitutionally-protected “right to life” as including and embracing a “quality” of life. The fact that the Pakistan Constitution, additionally, protected the “right to dignity” (Article 14) was urged as another important consideration to broaden the scope of the right to life in Article 9.

In Shehla Zia vs. WAPDA, the Supreme Court came out with very positive results, it knocked down the hurdles of right to sue, entertained the application and accepted the petition and thus made a monumental judgment. What the law makers and the executive leadership of the country could not do over the course of several decades, the judiciary was able to start with a single decision.

In terms of legal consequences, the first major result was that the right to a quality of life was held to be guaranteed by the Constitution:

The word life has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities or facilities which a person in a free country is entitled to enjoy with dignity, legally and constitutionally. [20]

The receptivity of the Court to the precautionary principle covered in Principle 15 of the Rio Declaration on Environment and Development, 1992 (the “Rio Declaration”) was another significant advance. The counsel of the petitioners took the Supreme Court through an extended personal report of Pakistan’s leadership, as the chair of the Group of 77, on behalf of the developing countries at the Rio Earth Summit in 1992 and of its role as one of the principal architects of the Rio success. The historical exposition became a part of the court’s judgment:

The concerns for protecting environment were first internationally recognized when the declaration of United Nations Conference on the Human Environment was adopted at the Stockholm on 16-6-1972. Thereafter it has taken two decades to create awareness and consensus among the countries when in 1992 Rio Declaration was adopted. Pakistan is a signatory to this declaration and according to Dr. Parvez Hassan although it has not been ratified or enacted, the principle so adopted has its own sanctity and it should be implemented, if not in letter, at least in spirit. [21]

The Court readily accepted the thrust of these submissions; while recognizing the fact that the Rio Declaration was not a formal part of Pakistani law, the Court said that it commanded respect as a major international treaty of broad reaching significance for human progress:

The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensual declaration had been sorted out. Environment is an international problem having no frontiers creating trans-boundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations when dealing with environmental problems.[22]

With respect to the precautionary principle adopted in the Rio Declaration, the Supreme Court approvingly, declared:

[i]t would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence. According to it if there are threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. It enshrines the principle that prevention is better than cure. It is a cautious approach to avert a catastrophe at the earliest stage. Pakistan is a developing country. It cannot afford the researches and studies made in developed countries on scientific problems particularly the subject at hand. However, the researches and their conclusions with reference to specific cases are available, the information and knowledge is at hand and we should take benefit out of it. In this background if we consider the problem faced by us in this case, it seems reasonable to take preventive and precautionary measures straightaway instead of maintaining status quo because there is no conclusive finding on the effect of electromagnetic fields on human life. One should not wait for conclusive finding as it may take ages to find it out and, therefore, measures should be taken to avert any possible danger and for that reason one should not go to scrap the entire scheme but could make such adjustments alterations or additions which may ensure safety and security or at least minimize the possible hazards.[23]

Respect for sustainable development can also be gleaned from the following passage where the Court stated that the energy needs of a third world country, though essential, cannot be a justification for injurious projects:

One cannot ignore that energy is essential for present-day life, industry, commerce, and day-to-day affairs. The more energy is produced and distributed, the more progress and economic development become possible. Therefore, a method should be devised to strike balance between economic progress and prosperity and to minimize possible hazards. …our need is greater as it is bound to affect our economic development, but in the quest of economic development one has to adopt such measures which may not create hazards to life, destroy the environment and pollute the atmosphere. [24]

In its order, the Supreme Court gave significant relief to the petitioners by staying the construction of the grid station until further studies were done to establish the nature and extent of the threat posed by electro-magnetic radiation emitted by power plants. Drawing on the experiences of the Indian courts, the Supreme Court set up a commission of experts to study the technical dimensions and to submit a report in this respect. The public utility concerned was directed to make a public-friendly administrative approach a norm in its future work:

WAPDA is directed in that in future prior to installing or constructing any grid station and/or transmission line, they would issue public notice in newspapers, radio and television inviting objections and to finalise the plan after considering the objections, if any, by affording public hearing to the persons filing objections.[25]

As Akhund and Qureshi note:

The Shehla Zia vs. WAPDA case sets out two of the most critical foundations of environmental law in Pakistan. First, by virtue of the broad meaning of the word “life” as contained in Article 9 of the Constitution, together with the requirement for dignity of man contained in Article 14, the fundamental right to an unpolluted environment has been established. Secondly, the case established the application of the precautionary principle where there is a hazard to such rights.[26]

Since then, Shehla Zia has been cited with approval in many subsequent cases both laterally in the Supreme Court and in the courts below[27]. In General Secretary Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore[28], which came up for hearing in the same year, the Supreme Court, citing Shehla Zia stated that “The right to have unpolluted water is the right of every person wherever he lives”.[29] In this case, the Court also took the opportunity to reiterate its openness to procedural constraints in public interest litigation cases and the broad and flexible powers it enjoys under that head:

It is well settled that in human rights cases/public interest litigation under Article 184 (3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections, cannot bar the jurisdiction of the Court. The Court has vast power, under Article 184 (3), to investigate into questions of fact as well as independently by recording evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position.[30]

This was yet another case in which the Supreme Court appointed a five member Commission headed by the co-author, Dr. Parvez Hassan, to visit the mining activity and recommend remedial measures. Pakistan had found its Bhagwati (the visionary Chief Justice of the Supreme Court of India who developed PIL and PIEL in India)[31] in Justice Saleem Akhtar who through his judgments, including those in Shehla Zia and the Salt Miners cases supra, inducted the judiciary as a committed member of Pakistan’s quest for environmental protection and sustainable development.

The impetus provided by the Supreme Court began to drive results in the country’s High Courts as well. In Pakistan Chest Foundation v Government of Pakistan[32], the petitioners filed a writ petition with the aim of stopping tobacco advertisements from being broadcasted on Pakistani television. The Lahore High Court, while accepting the writ petition, brought the case within the ‘right to life’ principle enunciated in Shehla Zia:

Applying the principle of law enunciated in Shehla Zia’s case (supra) to the facts and circumstances of the present case, the citizens of this country and particularly the younger generation are entitled to protection of law from being exposed to the hazards of cigarette smoking, by virtue of the command contained in Article 4 (2)(a) of the Constitution. [33]

The reliance on Shehla Zia has not been restricted to environmental petitions. In Benazir Bhutto v President of Pakistan[34], the political abuse of wire-tapping was described as an assault on the ‘right to life’ provision in the Constitution:

With this [Shehla Zia] definition of the word ‘life’, one would not deter to state that telephone-tapping and eaves-dropping mar the protection afforded and guaranteed to the right to life.[35]

Subsequent to the Shehla Zia case, the Pakistan Environment Protection Act, 1997 (“PEPA”) was passed by the Parliament and became the environmental law of the land. The PEPA incorporates the Precautionary and other Principles of the Rio Declaration. Violations of the PEPA are punishable with a wide array of penalties, including fines and imprisonment. Persons aggrieved of pollution or of violations of the PEPA have been provided an opportunity to file their complaints before the Environment Protection Agencies (“EPAs”) set up under the PEPA. If complaints are not dealt with to the satisfaction of the complainant, recourse to Environment Protection Tribunals is also afforded.

Despite the statutory framework provided by the PEPA and the alternative forum it provides, the superior courts of Pakistan have taken up a number of environmental cases, both on petition and suo motu, to protect the environment and enforce the provisions of PEPA.

3. The Story of Public Interest Environmental Litigation (“PIEL”)

The eloquent story of PIEL in Pakistan, from 1991 to date, to include the use of Commissions, has unfolded before the superior courts of Pakistan to the following details:

(1) The Asphalt Plants Case (1991)

The first appointment of a Commission in the field of environment in the country in a public interest litigation was most probably in United Welfare Association, Lahore vs. Lahore Development Authority (Writ Petition No. 9297 of 1991) before Mr. Justice Khalil-ur-Rahman Khan of the Lahore High Court. The intervention of the court was sought for getting certain asphalt plants removed from the Petitioners’ sites in Lahore on account of serious health hazards the plants were posing for the residents. Dr. Justice Nasim Hasan Shah comments on this case:

The anxiety felt by the Court on hearing this complaint is manifest from the order it passed on 15 October 1991. Herein after noticing the contention of the petitioner it not only called upon the Lahore Development Authority to answer the allegations contained in the petition but also requested a renowned environmentalist namely Dr. Parvez Hassan, Advocate to visit the area “to verify the complaint made and then suggest to the Court the measures to be adopted”.[36]

Dr. Parvez Hassan visited the area, with scientific support from PCSIR, and reported to the Lahore High Court that:

The air-borne pollutants, from the operational activity of the plant, are dispersed over a large area. ... [and that these pollutants were emitting] toxic substances like sulphur dioxide, nitrogen oxides, hetrocyclic compounds and hydrocarbons besides colossal quantities of air-borne fine dust emitted through the crush unloading at the site and during its processing at the plant.

Dr. Parvez Hassan recommended to the Court that:

The continued operation of these plants is inconsistent with the rights of the adjoining residential areas to a clean and healthy environment. The residents are continually exposed to the obnoxious fumes and the potential health hazards unleashed by these asphalt plants. These should be removed from the site and relocated in areas where there is no danger to the environment. Even at the reallocated sites, the activities of the plants should be monitored with a view to minimize the impact of their environmental degradation.

As a result of this report, the Director General, Lahore Development Authority, passed orders for the shifting of the asphalt plants.

(2) The Salt Miners Case (1994)

In 1994, the Supreme Court appointed a Commission in General Secretary, West Pakistan Salt Mines Labour Union (CBA) Khewra, Jhelum vs. Director, Industries and Mineral Development, Punjab, Lahore,[37] to visit the site of extensive mining activity and to recommend remedial measures. The Supreme Court directed:

6. In view of the above discussion:-

(i) P.C.C. is directed to shift within four months, the location of the mouth of mine No. 27A at a safe distance from the stream and small reservoir in such a manner that they are not polluted by mine debris, carbonized material and water spilled out from the mines to the satisfaction of the Commission consisting of the following members:-

(a) Dr. Parvez Hassan, Advocate, Lahore (Chairman).

(b) Dr. Tariq Banuri.

(d) A member nominated by PMDC (Pakistan Mineral Development Corporation).

(e) A member co-opted by the aforestated members of the Commission.

The Commission shall have power of inspection, recording evidence, examining witnesses including the powers as provided by Order XXVI of the Civil Procedure Code. If, on the report of the Commission, it transpires that shifting of the mine mouth is not possible, then the case shall be placed before the Court for further consideration including the question whether the operation of mine No. 27A should be completely stopped; (at p. 2073-74) (emphasis added).[38]

As counsel of the petitioners in the Shehla Zia case, and the Chairperson of the commission appointed in the Salt Miners case, co-author Dr. Parvez Hassan had a hand in shaping the orientation of the Pakistani courts towards the use of judicial commissions in public interest environmental litigation. The basic approach that was followed was to recommend to the court how commissions could help provide science/technology-based solutions which lie outside the expertise of the Courts. Apart from providing the court expert guidance, the other limb of this approach was to highlight the importance of a non-adversarial, public-private partnership model for handling the most intractable civic problems.

(3) The Solid Waste Management Commission (2003)

The pattern of appointing expert commissions with broad participation of the stakeholders has been successfully employed in three major environmental petitions in Lahore. In 2003, in an intra-court appeal, City District Government vs. Muhammad Yousaf,[39] challenging the use of a site for dumping solid wastes, a Division Bench of the Lahore High Court comprising Justices Tassaduq Hussain Jillani and Bashir Mujahid of Lahore High Court appointed the Solid Waste Management Commission to review the suitability of Mahmood Booti as a site for solid waste disposal. The Court also directed the Commission to advise on the optimal environmentally appropriate manner for the disposal of solid wastes in Lahore as well as to recommend other sites for the disposal of solid wastes as per Lahore’s requirements.

Co-author Dr. Parvez Hassan was appointed the Chairman of the Commission comprising, on his recommendation, a broad section of representatives from both the public and private sectors. This roundtable included government officials and city administrators including the District Nazim (the Mayor of Lahore), the District Co-ordination Officer, the Director, Solid Waste Management, Government of Punjab, Director General, EPA, Punjab, Secretary, Health, Punjab, academics and scientists, parliamentarians, specialists, environmentalists, and members of civil society (representatives of IUCN Pakistan and WWF-Pakistan). The Commission set up a sub-committee for hospital waste disposal under the Provincial Secretary, Health, who was the in charge of all the public sector hospitals. It is also a reflection of the public-private sector partnership and harmonious working of the Commission that it persuaded the City District Government Lahore to arrange and finance the Environmental Impact Assessment (“EIA”) of Mahmood Booti by NESPAK, a consultancy firm chosen by the Commission.

On 23 March 2005, Lahore inaugurated the construction of its first integrated compost and landfill plant at Mahmood Booti and the plant was commissioned one (1) year later with private sector participation on a build, operate and transfer basis. According to The News, “Lahore’s first compost plan will transform around 20 percent of the city’s solid waste into 250 tonnes of organic fertilizer on a daily basis”.[40] The Solid Waste Management Commission moved with dedication and resolve to provide a model environmentally appropriate solid waste disposal regime for Lahore, hopefully to be replicated in other parts of the country.[41]

(4) The Lahore Clean Air Commission (2003)

In Syed Mansoor Ali Shah vs. Government of Punjab,[42] Mr. Justice Muhammad Sair Ali of the Lahore High Court appointed, in July 2003, a Lahore Clean Air Commission, also chaired by co-author Dr. Parvez Hassan and co-chaired by the Advocate General, Punjab, to recommend measures for the improvement of Lahore air quality. This Commission, on Dr. Parvez Hassan’s request, similarly included representatives from both the private and public sector including the City District Government Lahore. It set up sub-committees with respect to (1) clean fuel, (2) rickshaws, (3) public transport and (4) coordination with local councils. The Rickshaws sub-committee, for example, worked under the chairmanship of the Provincial Secretary, Environment, and the Clean Fuel sub-committee worked under the chairmanship of the District Coordination Officer, Lahore. Syed Mansoor Ali Shah, the coordinator of both this and the Mehmood Booti Commission, chaired the sub-committee on public transport and held public hearings at the City Government conference room. All the oil companies were invited by the Clean Fuel sub-committee to support the work of the Commission.

The Lahore Clean Air Commission similarly finalized its Report on 21 May 2005 with a developed consensus of all stakeholders including the manufacturers and users of public transport and rickshaws. These recommendations, including toward four stroke engines for rickshaws and CNG use, were filed in the Lahore High Court. In 2006, the Secretary, Transport, Government of Punjab, joined in supporting the recommendations of the Commission before the Lahore High Court.

In order to ensure the implementation of the recommendations of the Commission, Mr. Justice Hamid Ali Shah, in WP No. 6927, directed that:

16. Standing body of the Commission, comprising of Dr. Parvez Hassan, Advocate (Chairman); Syed Mansoor Ali Shah, Advocate/Petitioner (Facilitator & Coordinator), District Coordination Officer (DCO), Lahore, Hammad Naqi, Director (Environment Pollution Unit), World Wide Fund for Nature (WWF), Lahore and Nihal Asghar, SEAL, Lahore is constituted to remain operational till the accomplished of the Commission, approved herein above from Lahore. The Transport Department and the City District Government Lahore shall regularly report their progress to the Standing Body and keep them involved in their deliberations and plans. In case the Standing Body is of the view that the recommendations are not being followed or are being deviated from, they are free to approach this Hon’ble Court for appropriate orders.

In this manner, the Court also provided a means for ensuring compliance and enforcement of PIEL judgments.

4. The Practice of Appointing Commissions

It is evident from the discussion above that the Pakistani Courts have often relied upon Commissions to facilitate the resolution of contentious, divisive and adversarial proceedings. This model resolves complex issues by the use of science, technology and dispassionate technical advice with the willing co-operation and support of civil society and the participation of governmental functionaries in the process. Elsewhere, the authors noted:

… the use of court-appointed Commissions to resolve complex environmental issues in Pakistan has already shown promise. Moving away from an adversarial ethos of a court room to a more informal round-table of a Commission by itself promotes a dialogue and discussion between the stakeholders. Moreover, when care is taken toward an all-inclusive process of enabling all the stakeholders from both the public and private sectors to be represented in the Commission, the credibility of its work and success is significantly assured. It is particularly important to include in the Commission those Departments or Ministries of the Government that would ultimately be responsible for the implementation of the recommendations of the Commission. Eminent scientists and experts drawn from Universities and academia can anchor the work of the Commission by providing “neutral” and state-of-the-art technical and science-based advice on the complex issues before the Commission. The role of the Chairman can also be important in the impartiality and fairness with which he conducts the proceedings of the Commission and enables public participation and hearings to factor different points of view. The success of the Chairman lies ultimately in persuading the members of the Commission and other participants to move away from the narrower mindset and language of “I” “you” “mine” and “yours” to a more appropriate “we” “us” and “ours”. Only when this central aspect of a common ground for the needs of a city or civil society is recognized and realized can a Commission succeed in the important tasks entrusted it by the Courts. [43]

The Supreme Court, in the Lahore Canal Road Case, acknowledged the value of Commissions:

In such cases the Court may not have the requisite expertise to adjudicate. This is why the Court seeks the assistance of experts or experts’ committee. The advantage of the experts’ committees is that it enables the Court to receive technical expertise while the Judges are left to decide questions of law. Such committees reduce the chances of judicial arbitrariness and adds legitimacy to the judgments (Paragraph 54). …..

But, as the co-authors argue elsewhere:

… the use of judicial commissions is by no means a panacea as the technique can only work effectively where expert opinion is not divided and there is a fair chance that a consensus can emerge amongst the diverse group of stakeholders. Even though the advent of public interest litigation and innovative procedural pathways such as judicial commissions threaten to obliterate the law/policy divide, the successes of the new approach in India and Pakistan have been welcomed by a public that has long been used to an apathetic legislature and a weak executive. As long as environmental protection remains a low priority item for the political establishment and the state machinery, courts in Pakistan will increasingly be called upon to give practical significance to the fundamental rights guaranteed under the Constitution. However, it should be borne in mind that the activism of the courts is not a substitute for proper policy making and implementation as judicial intervention is by its very nature reactive and hemmed in by the procedural pathways that are peculiar to the legal process. The countries of South Asia are still in the early stages of environmental consciousness and although public awareness of environmental issues is improving with each passing year, prioritizing environmental concerns in national planning and steady implementation of laws and policies is of paramount importance. [44]

C. The Lahore Canal Road Case

In May 2006, the Traffic Engineering and Planning Agency (“TEPA”) of the Lahore Development Authority (“LDA”) announced plans to widen the 14 kilometer stretch of the Canal Bank Road in Lahore from the Dharampura Underpass to Thokar Niaz Beg (the “TEPA Project”). The Lahore Bachao Tehreek, an umbrella organization including the Institute of Architects Pakistan, Pakistan Council of Architects and Town Planners, the World Wide Fund for Nature – Pakistan, the Pakistan Medical Association, the Pakistan Environmental Lawyers Association, Simorgh, Shirkatgah, Shehri-CBE, the Lahore Conservation Society, Shajar Dost, Subh-e-Nau, Lahore Chitrkar, the Office of Conservation and Community Outreach, the Punjab Urban Resource Center, other NGOs, professionals, architects, town planners, environmentalists, doctors, lawyers, historians, economists, the academics and students of schools, universities, colleges as well as the citizens of Lahore, was formed in protest and as a reaction to the TEPA proposal.

In June 2006, the Chief Justice of the Supreme Court of Pakistan took suo motu notice of letters written to him informing him of the TEPA Project. Because the adverse environmental effect of TEPA Project threatened the Fundamental Right of life and a clean and healthy environment, the Chief Justice of Pakistan summoned the Chief Secretary Punjab to the Supreme Court, where the said officer undertook that the TEPA Project would proceed only if it complied with the requirements of the Pakistan Environmental Protection Act, 1997.

Following the requirements of PEPA, the TEPA commissioned the National Engineering Services Pakistan Limited (“NESPAK”) to conduct an environmental impact assessment (“EIA”) of the TEPA Project. When the EIA was completed, it was, in purported fulfillment of the requirements of PEPA, submitted by the TEPA to the Environment Protection Agency, Punjab (the “EPA, Punjab”). The EPA, Punjab conducted a public hearing of the EIA of the TEPA Project on 14 March 2007 in which hundreds of Lahoris participated and submitted their comments on the EIA and the TEPA Project.

Despite the numerous objections raised and points made on the EIA and the TEPA Project and in violation of the principle no one should be a judge in their own cause, the EPA, Punjab granted conditional Environmental Approval to the TEPA Project (the “Environmental Approval”).

The World Wide Fund for Nature – Pakistan and other NGOs and citizens who form the Lahore Bachao Tehreek challenged the Environmental Approval vide Writ Petition No. 6572 of 2007 titled World Wide Find for Nature – Pakistan vs. Government of Punjab, through Communication and Works Department. Thereafter, this petition remained dormant, the government of the time focused on the upcoming elections and the priority of carrying out the TEPA Project diminished. After the election of 2008, a new government was returned and, for the first year of its tenure, took no steps in pursuance of the TEPA Project

On 21 July 2009, the LDA published advertisements in local newspapers adverting to the benefits of the TEPA Project. In response, the World Wide Fund for Nature – Pakistan and other NGOs and citizens filed CM No. 3384 of 2009 in the Writ Petition seeking, inter alia, a status quo stay order restraining the respondents from commencing or otherwise proceeding with any civil works or earth moving in pursuance of the TEPA Project until the disposal of the Writ Petition. This CM has remained pending.

On 9 November 2009, various newspapers reported that the Chief Minister of the Punjab had approved Rs. 3.15 billion (Rs. 3,150,000,000) for the widening of the Canal Bank Road from the Dharampura underpass to Thokar Niaz Beg (the “Government of Punjab Project”).

The Lahore Bachao Tehreek subsequently wrote to the Chief Minister of Punjab requesting him to reveal the particulars of the Government of Punjab Project for public scrutiny and review. It received no answer. Because the Lahore Bachao Tehreek considered the TEPA Project and the Government of Punjab Project two distinct projects and contended that the Environment Approval granted to the TEPA Project could not be employed to cast a cloak of legality on the Government of Punjab Project, it sought relief by petitioning the Chief Justice of Pakistan to take the matter up suo motu.

The Chief Justice of Pakistan took suo motu notice of the Government of Punjab Project and thus initiated the Lahore Canal Road Case. The Chief Secretary and Secretary, Environment Protection Department of the Government of Punjab, were summoned to the Supreme Court on 1 December 2009. On that date of hearing, representatives of the Lahore Bachao Tehreek also appeared and made preliminary submissions. The Court adjourned the matter to 21 December 2009 but directed that no trees be cut down in the interim, that the Government of Punjab provide details of the TEPA Project and the Government of Punjab Project and that the Lahore Bachao Tehreek submit its alternative proposals regarding the urban planning and future of the city of Lahore.

The Lahore Canal Road Case remained pending and unresolved, even after the parties met, on the directions of the Supreme Court, to see if they could evolve a consensus on the issue of widening the Lahore Canal Road for the purposes of easing traffic congestion. After nearly two (2) years of fruitless proceedings, on 14 February 2011, the Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry, with the agreement of the parties, appointed Dr. Parvez Hassan as mediator (the “Mediator”) to find a “viable solution for the critical issue herein raised.” The Supreme Court also enabled the Mediator to “associate any other persons, experts or officials of the Government of Punjab for the purpose of such mediation and for finding a suitable resolution of the matter.”

The Mediator, after consulting with Mr. Salman Aslam Butt and Mr. Ahmer Bilal Soofi, counsels of the Government of Punjab and LBT respectively, requested the following persons who joined as members of a Committee: Syed Babar Ali, Mr. Sartaj Aziz, Mr. Ayaz Sadiq, Mr. Nadeem Hassan Asif, Dr. Mira Phailbus, Mr. Arif Hasan, and Dr. Abid Qaiyum Suleri. The constitution of the Committee was based on the relevance of the background of the members to the issues before the Committee.[45] Mr. Ahmad Rafay Alam, Advocate, was appointed as Secretary of the Committee. Mr. Nadeem Hassan Asif had been included by the Mediator to represent the Government of the Punjab and Mr. Arif Hassan was to represent the interests of the petitioners on the Mediation Committee.

The appointment of the Mediator by the Supreme Court received extensive press coverage that served as a public notice of the work of the Committee. Several persons/parties contacted the Mediator and they were all invited to the proceedings of the Committee.

The Committee held its preliminary meeting at the Beaconhouse National University (“BNU”) on 4 April 2011 (the “Preliminary Meeting”) and then held two (2) meetings on 13 and 20 April 2011 at the Lahore University of Management Sciences (“LUMS”). The Preliminary Meeting was attended by Committee members, representatives of the LBT and Government of Punjab and experts invited by the Committee who teased out the issues to be resolved between the parties. The Preliminary Meeting concluded with a site visit organized for the Committee by Mr. Abdul Jabbar Shaheen, the Director General of the LDA and the Parks and Horticulture Authority (“PHA”).

The site visit extended from Jallo Mor on the Canal to Thokar Niaz Beg so as to give the Committee members an opportunity to view and appreciate the entire stretch of the Canal. On 13 April 2011, the Government of Punjab, as well as experts invited by the Committee gave presentations on the Canal Road widening issue. On 20 April 2011, the LBT along with experts invited by the Committee gave their presentations on the issue. At this meeting, representatives of the Government of Punjab and others were enabled to make rebuttal statements.

The meetings/hearings were conducted in an open, “town house meeting” style. Anybody who had approached the Chair was invited to attend and participate. The participants at these meetings included students and faculty members from Lahore University of Management Sciences (LUMS), Beaconhouse National University (BNU), Kinnaird College, Lahore and the Lahore School of Economics. Mr. Amer Mehmood, former Nazim, Lahore, who has had extensive experience in handling the civic issues of Lahore, approached the Chair and was invited to provide useful guidance on 13 April 2011.

The Experts, who guided the deliberations of the Committee, included Dr. Khalid Hamid Sheikh, former Vice Chancellor, Punjab University, Lahore; Mr. Karamat Ullah Chaudry, former Managing Director, NESPAK; Dr. S. Gulzar Haider, Dean, School of Architecture, BNU; Dr. Rizwan Naseer, D.G. Punjab Emergency Services (Rescue 1122); Mr. Khushal Khan, former Managing Director, TEPA; Mr. Umar Farooq, Director, Planning & Development Consultants (Private) Limited; Dr. Nasir Javed, Director, Urban Unit, Government of Punjab; and Mr. Mustafa Kamal, Horticultural Group.

Subsequent to the conclusion of the hearings, the Chair received letters from the Pakistan Substantiality Network, and Lahore Environmental Youth Council. The Chair also received proposals, from Mr. Waseem Afzal, former Project Director (Islamabad – Peshawar Motorway).

The Chairman of the Committee strived to achieve consensus among the members of the Committee and, in this regard, was mostly successful as all but one (1) member, who objected to two (2) recommendations of the Committee, agreed with all the eighteen (18) recommendations it put forward. The recommendations of the Committee were submitted in a detailed Report to the Supreme Court of Pakistan on 14 May 2011. It was explained by the Committee at the outset:

The Committee has approached its mandate with a view to protecting and sustaining the heritage of the Lahore Canal. The Committee feels responsible for preserving this heritage for future generations. It has been mindful of the jurisprudence of the superior courts wherein the Doctrine of Public Trust has been applied to public spaces and is inspired by the experiences of protecting public spaces in other jurisdictions (the Committee relied, generally, on Sindh Institute of Urology and Transplantation vs. Nestle Milkpak Limited, 2005 CLC 424 (Karachi) and Muhammad Tariq Abbasi vs. Defence Housing Authority, 2007 CLC 1358 (Karachi) for this proposition). The Committee has held up the common man as the centrepiece of its concerns and attention in order to promote social equity. Juxtaposed with the imperatives of sustaining Lahore’s past into the future, the Committee also recognized the pressures brought on by an increasing population, urbanization, traffic congestion, pollution and poor urban planning.

The Committee went on to make eighteen (18) recommendations which, in summary, are as follows:

1. Declare the Lahore Canal Area to be a Heritage Urban Park;

2. Correct the “incorrect” underpasses in the Canal Road;

3. Re-engineer the Junctions along the Canal Road;

4. Construct Service Roads along Certain Parts of the Canal Road;

5. Implement Traffic Management Programs;

6. Public Transportation;

7. Divert the Through-Traffic on the Canal Road to new Traffic Corridors;

8. Declare the Punjab University New Campus area as a “Go-Slow” Area;

9. Treat the Lahore Canal in a holistic manner;

10. Noise Pollution;

11. Ecosystem Preservation;

12. Cleaning and Improving the Water Quality of the Canal;

13. People-Centric Planning;

14. Restoring Communal Life on the Canal;

15. Public Transportation in Lahore Canal Governance;

16. Ambulance/Medical Emergencies;

17. Limited Widening of the Canal Road; and

18. Sector-Specific Recommendations;

Each of these recommendations was supported by detailed reasoning. The Supreme Court reproduced, in toto, all the recommendations of the Mediation Committee before adopting each one (1) of them. For example, Recommendation 17 was formulated to the following specificity:

17. Limited Widening of Road

The total distance on one side of the Canal Road from Dharampura to Thokar Niaz Beg is 14.5 KM. Out of these different sections, 6.59 KM road has already been widened before the reference of this matter to mediation.

The congestion on the remaining about 8 KM is particularly acute in certain locations, leading not only to prolonged delays but also causing safety hazards because ambulances and rescue vehicles are caught up in traffic and unable to move swiftly.

The Committee, after a detailed site visit to these stretches of the Canal Road and discussion with the concerned officials, recommends that this short-term congestion can be relieved to some extent if the third lane is allowed to be added at the following locations on both sides of the Canal:

Mall Road to Jail Road… 525 M (Eastern)
460M (Western)

Jail Road to F.C. College… 550 M (Eastern)
550 M (Western)

University Campus to Jinnah Hospital… 1,700 M (Eastern)
1,700 M (Western)

Jinnah Hospital to Doctors Hospital… 700 M (Eastern)
750 M (Western)

These stretches totalling a maximum of 3.525 KM on each side, as shown in Annexure J/1 to J/4 have 642 trees. And 60% (about 385) of these trees are of eucalyptus specie. Every effort should be made to build the third lane in these stretches on the edges of the existing road to reduce to a minimum the area taken from the green belt on both sides of the Canal Road.

The last stretch from Doctors Hospital to Thokar Niaz Beg (2.6 KM) is getting increasingly congested because of the volume of traffic generated from housing colonies like M.A. Johar Town and a large number of other colonies beyond Thokar Niaz Beg and areas on and around Raiwind Road. However, with the construction of service roads, as per Recommendation No. 4, the flow on the Canal Road can be reduced. In addition, same improvement can be achieved without encroaching on the green belt, if the trees on the edges of the road causing bottlenecks (about 460 trees including about 310 eucalyptus) (Annexure K), are removed to improve earthen shoulders and bus bays are provided at suitable points. The Committee does not recommend the widening of the Canal Road through a third lane in this stretch.

For each tree felled in any sector of the Lahore Canal Road, the Punjab Government will plant at least a hundred (100) mature trees in replacement.

The Committee emphasized, in conclusion, that:

… its Recommendations form a complete package with each component interlinked and complementing each another. The Committee is of the opinion that the strength and weight of its recommendations will be diluted if there is any “cherry picking” of its recommendations. The implementation of the Recommendations should be owned by the Government of the Punjab at the outset so that these recommendations are implemented holistically both in letter and spirit, through a detailed and co-ordinated work plan, as a “compact” of the Government of the Punjab with the city of Lahore.

D. Public Trust Doctrine and the Decision in the
Lahore Canal Road Case

Having received the recommendations of the Mediation Committee, the Supreme Court of Pakistan proceeded to formulate eight (8) legal issues for deliberation. The proceedings of the Mediation Committee, in this light, can be seen to have assisted the Court in taking a complex urban planning issue and teasing out the legal issues which required judicial deliberation.

The decision of the Court was anchored on the understanding of the concept of Public Trust. Issue (vii) framed by the Court read as under:

Whether the project entailing the widening of the road on both sides of the Canal, which would have the effect of reducing the area of green belt, is violative of the Doctrine of Public Trust (Paragraph 11).

In resolving this issue, the Court dilated upon the jurisprudential formulation of the doctrine of public trust in the following manner:

The concept of Public Trust is as old as the organized human living and the advent of State. This concept appeared in codified law for the first time during the Roman Empire. Roman Emperor Justinian codified the law in Corpus Juris Civilis about 1500 years ago. The genesis of this concept was laid by Justinian in 529 BC in a section of the said Code in these words: “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea”. Much after the fall of the Roman Empire, the Corpus Juris Civilis was rediscovered in Pisa and the concept spread throughout Europe. In England this concept was codified in the Magna Carta and in 1225 King John was forced to revoke his cronies’ exclusive fishing and hunting rights, because this violated the public’s right to access these common resources (Paragraph 20).

Tracing the antecedents of the doctrine of public trust, the Court then cited examples from the U.S. and Indian jurisdictions where the doctrine was incorporated into judicial comment.

In Pakistan, the doctrine of public trust was first invoked in the case of Sindh Institute of Urology and Transplantation vs. Nestle Milkpak Limited[46]. In this case, the establishment of a water-bottling plant that used the common aquifer was challenged on the grounds that such use of natural resources was a violation of the doctrine of public trust. In delivering its judgment, the Sindh High Court noted:

It is well‑settled that natural resources like air, sea, waters, and forests are like Public Trust. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status. "Doctrine of Public Trust" as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Even under the Islamic law certain water resources are to be protected from misuse and over exploitation.[47]

The doctrine of public trust was again subject of judicial scrutiny in the case of Muhammad Tariq Abbassi vs. Defence Housing Authority[48]. This case concerned the development of beach-front property in Karachi wherein it was contended that the development would restrict the access of the public to the public beach, thereby violating Fundamental Rights guaranteed under the Constitution. The Court recognized that the right of free access of the public-at-large to parks, and similar public spaces was a Fundamental Right guaranteed under Article 9 of the Constitution and extended this right to the beach at Karachi and other coastal areas. Invoking the doctrine of public trust, the Karachi High Court held:

In this regard, it would be seen that the doctrine of public trust has long been recognized all over the world, which enjoins the State to preserve and protect the public interest in beaches, Lakeshores etc…. Similarly, in the Indian jurisdiction the Courts have also upheld the right of the public to free access to the beach and hence controlled the commercial development of the same …. Finally, this Court in the case of Sindh Institute of Urology and Transplantation v. Nestle Milkpak Limited 2005 CLC 424 has recognized the public trust doctrine extending it to natural resources, viz, air, sea, water and forests, which being a gift of nature should be made freely available to everyone irrespective of status. In view of the foregoing discussion, we would thus direct D.H.A. to develop the Clifton Beach in a manner, which would allow free access for the public . . . . Hence, we would direct that the proposed buildings/structures in the area would conform to the regulations/bye-laws of the Clifton Cantonment Board. Similarly, we would direct that all the public areas viz. Walkways, promenades etc., should be made available to the public-at-large free of cost. However, nominal charge may be imposed (if at all this is essential) for other public areas where services/entertainment is to be provided viz. water ferry, tramway, aquarium, water spots etc.[49]

The Supreme Court, in the Lahore Canal Road Case, abundantly relied on the Shehla Zia case as providing the grundnorm in extending the meaning of Fundamental Right of Right of Life. It also relied on Moulvi Iqbal Haider vs. Capital Development Authority, PLD 2006 SC 394 wherein, speaking for the Court, the Chief Justice, Mr. Iftikhar Muhammad Chaudhry, had observed:

Now we will examine whether in view of the given facts and circumstance of the case, any of the fundamental rights guaranteed to the citizens of Pakistan have been denied. Islamabad, being a capital city, attracts representation from all over Pakistan in different capacities. Thus it is their right to enjoy access to the places of entertainment like the Jubilee Park, etc. under Article 26 of the Constitution. The same is the position of the inhabitants of the area where the Park is situated. As it has been stated herein above that necessary documents have been withheld by the C.D.A. from the Court for which, observation have been made herein above. Thus, it is held that Jubilee Park was earmarked in the original scheme of Sector F-7, as it was meant for low income group, who are deprived of the benefits of having their own private gardens, comparing to higher income groups, therefore, converting such Parks for commercial activity with the collaboration of multinational companies, would deny the rights guaranteed to them (Paragraph 30).

In the Lahore Canal Road Case, the Mediation Committee had not supported the request of the Punjab Government to widen the entire Canal Bank Road. Instead, it had recommended that a maximum of only 3.525 kilometres be allowed to be widened. To the contention that even such limited widening would encroach on public spaces and public trust, Justice Tassaduq Jillani reasoned:

The case in hand, if examined, in the light of the Doctrine of Public Trust as explained by the academics and construed by the Courts including the Pakistan Supreme Court leads to an inescapable conclusion that the green belt around both sides of the Canal is a Public Trust resource; that it cannot be converted into private use or any other use other than a public purpose; that widening of the road as proposed is a public purpose; that a minimum area is being affected and the remaining green belt/public park is much larger; that the same has been recommended by the Mediation Committee to be declared as Heritage Park and the recommendations of the said Committee have been accepted by the Province of Punjab in totality. In these circumstances, the Doctrine of Public Trust cannot be said to have been compromised (Paragraph (35).[50]

In adopting, for implementation, all the eighteen (18) recommendations of the Mediation Committee, the Supreme Court declared that the entire Lahore Canal Road from Jallo Mor to Thokar Niaz Beg is a “public trust” (Paragraph 60). This would clearly preclude future attempts to add more lanes to the Lahore Canal Road. This would be the most durable legacy of the work of the Mediation Committee and the welcome support to its work by the Supreme Court of Pakistan.

The judgment in the Lahore Canal Road Case was delivered by a Bench comprising Mr. Justice Tassaduq Hussain Jillani and Mr. Justice Saqib Nisar. Both brought their vision for Lahore and their compassion for the residents of Lahore to the result of balancing the needs of society to the requirements of sustainable development. Lahore will remain grateful to them for this direction-setting precedent. Justice Tassaduq Husssain Jillani, who wrote the lyrical judgment, was already counted as a green judge having traversed ground-breaking paths in his earlier judgments on environmental rights.

Many judges of the Supreme Court, inspirationally led by the Chief Justice, participated in the Lahore Canal Road Case on different Benches to orient the final result. These judges included Mr. Justice Tassaduq Hussain Jillani, Mr. Justice Mohammad Sair Ali, Mr. Justice Ghulam Rabbani, Mr. Justice Khilji Arif Hussain, Mr. Justice Saqib Nisar, and Mr. Justice Khalil-ur-Rehman Ramday. From their comments in the various Benches that took up this case, it is possible to speculate that each of them contributed in no small measure to its final outcome. The Chief Justice had moved the case in its final stage for the convenience of the parties to Lahore; he led each Bench throughout the hearing of the case even at Lahore except the last day of the case when Justices Tassaduq Jillani and Saqib Nisar conducted the final hearing to its landmark result.

E. Conclusions

The public trust doctrine has now been judicially adopted as a major pillar for environmental governance in Pakistan.[51] The wide exposure given to this doctrine by the Courts, as well as by the Commissions and Mediation ordered by the Supreme Court, will no doubt echo in future administrative, executive and legislative work in the country.

It is a major recommendation of this paper that the superior courts of Pakistan should appoint Commissions, with multi-disciplinary representation, in the consideration of complex environmental issues, including particularly where the public trust doctrine is involved or invoked. Such Commissions may cover areas that do not lie with the background or expertise of the judge, or, as minimum, will save the precious time of the judges in considering such matters. The use of a Committee in the Lahore Canal Road Case is a good example. To fully understand the role of the Mediation Committee, one needs to hypothesize the judgment of the Supreme Court without it. Ordinarily, the case would have had one of two endings. Either the Supreme Court would have allowed the petition thus prohibiting the widening of the Canal Road. Or, it could have rejected the petition allowing the widening of the entire Canal Road. It would not have had the ability, as pointed out in the judgment, to make site-specific recommendations based on site visits of the Mediation Committee and the views of experts, urbanists, traffic engineers, and environmentalists.

It is, accordingly, suggested that the comprehensive reach of the decision in the Lahore Canal Road Case would not have been possible without the support of the recommendations of the Mediation Committee. The Committee examined traffic engineering issues, pointed to faulty designs and made holistic recommendations including a declaration that the green belt along the Lahore Canal be declared an Urban Heritage Park and a recommendation that car-free pedestrian-friendly “days” be introduced on the Canal Road. The Supreme Court would not have likely included such directions in the decision unless they had been recommended by the Committee with the agreement of the Government of Punjab induced by the Committee.

In this way, through the exercise of its suo motu jurisdiction, the Supreme Court has pioneered a new model to resolve complex public interest litigation matters. It has also set an example of cooperation between civil society and the Government, as strengthening public-private sector partnership, which cooperation is the hallmark of a vibrant and aware society.

A comment about the agreement of the Punjab Government to the recommendations of the Mediation Committee is required for the completeness of the narrative. This was enabled by the leadership of two (2) members of the Committee, Mr. Nadeem Hassan Asif, then Commissioner, Lahore and of Sardar Ayaz Sadiq MNA (PML-N), both of whom transcended their job affiliation and political affiliation, respectively, to join the consensus of the Committee in pointing out the several design and traffic engineering lapses of the Punjab Government in the construction particularly of some of the underpasses on the Canal Road. The Punjab Government changed significantly from its position taken at the start of the case in the Supreme Court to later endorsing the recommendations of the Committee; it had moved from a planning perspective dominated around motorists to a pedestrian and common-man use of the Lahore Canal. The stature, reputation, integrity and professional backgrounds of the other members of the Committee, the exposure to public hearings and the views of experts, honestly expressed, undoubtedly induced these two (2) members to be a part of the mainstream thinking in Lahore.

A post-script: Mr. Nadeem Hassan Asif, now Additional Chief Secretary, is supervising the implementation of all the recommendations of the Committee. At a high-level meeting held under his Chairmanship on 28 September 2011, he has tasked different Committees to ensure compliance with the judgment in the Lahore Canal Road Case. The people of Lahore await the new direction and paradigm shift in the planning, management and use of the Lahore Canal Road.

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[2]. Shehla Zia and others vs. WAPDA, PLD 1994 Supreme Court 693.

[3]. The 1973 Constitution was in “abeyance” from 1977 until 1985.

[4]. See Mansoor Hassan Khan, “The Concept of Public Interest Litigation and its meaning in Pakistan” PLD 1992 Journal 84, at p. 85, and Speech by Chief Justice Muhammad Haleem, “Annual Dinner of the High Court Bar Association, Rawalpindi,” PLD 1987 Journal 26, at p. 26-27.

[5]. See Ali Ahmad Fazeel, “Address,” PLD 1987 Journal 229, at p. 232; and Justice Dr. Nasim Hasan Shah, “Public Interest Litigation as a means of Social Justice,” PLD 1993 Journal 31, at p. 33.

[6]. PLD 1988 Supreme Court 416, at p. 488; see also the Indian case, Bandhua Mukti Morcha v. Union of India, AIR 1984 Supreme Court 802, at p. 815.

[7]. See Justice Mohammad Afzal Zullah, “Human Rights in Pakistan” Vol 18 [October 1992] Commonwealth Law Bulletin, at p. 1343.

[8]. See Justice Ajmal Mian, “Hardships to Litigants and Miscarriage of Justice caused by Delay in Courts” PLD 1991 Journal 103, at p. 104.

[10]. See, for example, the observation of Chief Justice Muhammad Munir that a “High Court . . . is not competent merely on information or of its own knowledge to commence . . . proceedings” in Tariq Transport Company, Lahore v. Sargodha-Bhera Bus Service, PLD 1958 Supreme Court 43, at p. 454; See also Province of East Pakistan v. M.D. Mehdi Ali Khan, PLD 1959 Supreme Court 387, at p. 422.

[11]. Benazir Bhutto vs. Federation of Pakistan, PLD 1988 Supreme Court 416, at p 491.

[13]. See for examples of early suo motu jurisdiction, State v. Senior Superintendent of Police, Lahore PLD 1991 Lahore 224, In re: Juvenile Jail, Landhi, Karachi (Suo Motu Notice), 1990 PCrLJ 1231, State v. Muhammad Nazir, PLD 1991 Lahore 433, Human Rights Cases 1993 SCMR 2001 and In re; Human Rights Case (Environmental Pollution in Baluchistan), PLD 1994 Supreme Court 102.

[14]. The Judicial Conference, held at Quetta, in August 1991; For the Quetta Declaration, see PLD 1991 Journal 142.

[15]. See Justice Dr. Nasim Hasan Shah, “Public Interest Litigation as a means of Social Justice,” PLD 1993 Journal 31, at p. 32.

[16]. See Werner Menski, Ahmad Rafay Alam and Mehreen Kasuri, Public Interest Litigation in Pakistan (Platinum Publishing, London, 2000), at p. 61 to 63.

[17]. The United Nations Conference on the Environment, the first of its kind, was held in Stockholm in 1972. For an over-view of Pakistan’s involvement in environmental issues, see, generally, Parvez Hassan and Jawad Hassan “Chapter on Pakistan” in “The Role of the Judiciary in Environmental Governance: Comparative Perspectives”, p. 381-409 (Kluwer Law International, 2009), Parvez Hassan, “From Rio 1992 to Johannesburg 2002: A Case Study of Implementing Sustainable Development in Pakistan”, (2002) 6 Singapore Journal of International & Comparative Law 683-722. Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh (Kluwer Law International, 2004) provides a seminal regional over-view of this subject. See also, Dr. Parvez Hassan and Azim Azfar “Securing Environmental Rights Through Public Interest Litigation in South Asia” (2004) 22 Virginia Environmental Law Journal 215.

[18]. Although Pakistan was to play a leading role in the Rio Earth Summit in 1992, it was barely visible in the United Nations Stockholm Conference on the Human Environment in 1972 for it had just come out of the trauma and shame of the war of secession that led to the creation of Bangladesh in 1971. This may also explain the absence of environmental provisions in the 1973 Constitution.

[19]. Fourth Schedule, Part II, Concurrent Legislation List, Item 24; See Articles 141-143 of the 1973 Constitution for the distribution of legislative powers.

[20]. See Shehla Zia, supra note 2, at 712.

[26]. Nelma Akhund and Zainab Qureshi You Can Make a Difference- A Lawyer’s Reference to Environmental Public Interest Cases in Pakistan (IUCN, Karachi, 1998), at 13. Shehla Zia, has attracted a great deal of national and international comment. Okidi in particular notes how the case reinforces the need for lawyers to draw on international scholarship in presenting their cases: “This fact enjoys clear testimony in the opinion of the Supreme Court of Pakistan in Shehla Zia v. WAPDA, where the profuse citation of scholarly literature confirms the readiness of the national courts to draw on research results from various countries to support their decision. But it underscores one additional point, namely that the quality and wide acceptability of court decisions may also reflect the quality of the plaint and professional literacy of the counsel for the plaintiff. The easiest task for the courts is to follow precedents. However, it is the compelling quality and arguments in a plaint that may leave a court with no option but to set new precedents. In the above case, the counsel for the plaintiff assisted in the progressive development of environmental law”, Ben Boer, Koh Keng-Lian, C. O. Okidi and Nicholas A. Robinson, “Training the Trainers Program” (1999) 4 (2) Asia Pacific Journal of Environmental Law 175, at 181. For detailed background information to the Shehla Zia case, see Osama Siddique “Public Interest Litigation in the Wake of Shehla Zia versus WAPDA: The Cast Story” in Public Interest Litigation: Shehla Zia versus WAPDA (SDPI) at 7.

[27]. See, generally, Parvez Hassan , “Shehla Zia vs. WAPDA: Ten Years Later”, PLD 2005 Journal 48, also published in International Environmental Law Committee Newsletter of the American Bar Association’s Section on Environment, Energy and Resources 13-19 (May 2005).

[31]. For a tribute by a co-author to Justices P.N. Bhagwati and Saleem Akhtar, at the UNEP Global Judges Symposium held in Johannesburg, South Africa, on 18-20 August 2002, see Dr. Parvez Hassan “Judicial Activism Towards Sustainable Development in South Asia” PLJ 2003 Mag. 39-41.

[36]. See Justice Dr. Nasim Hasan Shah, “Environment and the Role of the Judiciary”, PLD 1992 Journal 21, at 27.

[37]. See Salt Mines Case, supra note 28.

[39]. I.C.A No. 798/2002 filed before the Lahore High Court.

[40]. Aoun Sahi, The News on Sunday (9 April 2006).

[41]. It was a measure of the gratitude of the city of Lahore for the work and role of the Solid Waste Management Commission that the speakers at the commissioning of the Plant acknowledged the pivotal role of the Commission in forging a science-based consensus on an acrimonious issue and thereby avoiding long years of litigation and appeals.

[42]. Writ Petition No. 6927 of 1997 filed before the Lahore High Court.

[43]. See Dr. Parvez Hassan and Ahmad Rafay Alam, “The Role of Commissions in Public Interest Environmental Litigation in Pakistan”, 2011 All Pakistan Legal Decisions, Journal, 78, at 88.

[45]. Syed Babar Ali is the former President of World Wildlife Fund, Mr. Sartaj Aziz is a former Finance Minister and the Vice Chancellor of Beaconhouse National University, Mr. Ayaz Sadiq is a Member of National Assembly in whose constituency part of the Lahore Canal passes, Mr. Nadeem Hassan Asif was then the Commissioner, Lahore Division, He is, today, the Additional Chief Secretary, Punjab. Dr. Mira Phailbus is the former Principal of the Kinnaird College, Mr. Arif Hasan is an urban planning expert, Dr. Abid Qaiyum Suleri is the Executive Director of the Sustainable Development Policy Institute, Islamabad, and Dr. Parvez Hassan is the President of the Pakistan Environmental Law Association.

[50]. The judgment also relied, undoubtedly, on the settled wisdom to balance developmental needs with the protection of the environment. See, e.g., discussion of the Hungarian – Slovakia case before the International Court of Justice in Paragraph 44.

[51]. See, generally, Parvez Hassan, “Elements of Good Environmental Governance” (2001) 6(1) Asia Pacific Journal of Environmental Law, also in Donna G. Craig, Nicholas A. Robinson and Koh Kheng-Lian, Capacity Building for Environmental Law in the Asian and Pacific Region – Approaches and Resources, Volume II, at 985.