October 2014

RULE OF LAW AND ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS IN PAKISTAN*

By:
DR. PARVEZ HASSAN**

A. Introduction

In February 2013, the UNEP Governing Council adopted the first internationally negotiated document to establish the term “environmental rule of law”. This Colloquium seeks to help develop and implement environmental rule of law and to define a new future for environmental justice and law in the Asia Pacific Region and beyond. My presentation welcomes the important commitment and work of UNEP in this field but also raises the issue as to whether it is helpful at this stage to coin or validate the term “environmental” rule of law when in the experience of several national jurisdictions, the terms “rule of law” has been adequate and resilient to accommodate emerging challenges in environmental matters.

As a lawyer from Pakistan who has handled a lot of environmental cases[1] and who routinely faces the value of precedent and prior interpretation, I raise the question as to whether the addition of “environmental” to rule of law will make it easier or more difficult for us to handle matters in courts.

In arguing an “environmental” rule of law, are we not jeopardising the safety of the settled interpretation of rule of law and taking on a burden of explaining and seeking the interpretation of a new category of rule of law which is specific to the environment.

Questions could also be raised as to why there is a need for coining new terms when the generic concept of rule of law would be broad enough to include the specificities of justice in environmental matters.

The term “rule of law” has been used for centuries as well understood and all-encompassing in the principal legal systems. Its elasticity has enabled it to subsume equality before the law, supremacy of the law, accountability to the law, fairness in the application of the law, separation of powers, independence of the judiciary, participation in decision making, good governance, legal certainty, transparency and procedural rights such as a right of a personal hearing in adjudications. Most common law systems resonate with phrases such as audi alteram partem as an essential part of the rule of law. And, the categories continue to grow and blossom under the munificence of this banyan tree. For all this time, it was not found necessary to qualify or modify this over-arching comfort to human rights and human dignity. Is there really a compelling need to do so now!

And, if today, we insist on “environmental” rule of law, would other sectors, disciplines and regimes not be seeking, for example, admiralty rule of law, anti-trust rule of law, telecommunication rule of law, financial services rule of law, criminal rule of law, and even traffic rule of law.

I hope that this Colloquium will not accept the term environmental rule of law as a fait accompli inspite of the UNEP Governing Council but subject this choice to a thorough discussion to assess different points of view. A debate on this by judges, legal scholars and practicing lawyers may benefit this important decision.

I would add that when we first handled environmental litigation in Pakistan, we benefited from the opening of precedents provided by public interest litigation (PIL) but deliberately avoided terming our efforts as public interest environmental litigation (PIEL) so that the settled law on PIL may automatically benefit us. The environmental decisions affecting public interest are described in the legal literature as PIEL, but PIEL has, to my knowledge, not been argued, or judicially interpreted, as a distinct category.

The temptation to coin new words in environmental literature came up for critical discussion at the Second Asian Judges Symposium on the Environment sponsored by the Asian Development Bank in Manila last week. Judges, lawyers and scholars reacted to the use of “natural capital” by ADB instead of “natural resources” on the basis, among others, that the use of “natural resources” had a long and settled history in the U.N. General Assembly Resolution on Permanent Sovereignty over Natural Wealth and Resources, 1962[2] and in its reiteration in many soft law instruments such as the Stockholm Principles (1972) and the Rio Declaration on Environmental and Development (1992).

I want to join in this precautionary approach against new terms when existing terms have the benefit of historical acceptance.

B. Rule of Law in Pakistan[3]

1. Constitutional Case Law

Each of the earlier Constitutions provided, and the present Constitution of Pakistan, 1973 (the “Constitution”), provides, an unequivocal vision for this country: a system of governance dedicated to social justice, fundamental rights, inter-provincial co-ordination and harmony and anchored on principles of federalism and on separation of powers between the Executive, Legislature and the Judiciary. A specific and separate role was visualized and provided for each of these important organs of the State. The landmark case, Al-Jehad Trust vs. Federation of Pakistan[4], explains the doctrine of separation of powers in the following words:

… the Legislature has to legislate, the Executive has to execute laws and the Judiciary has to interpret the Constitution and laws. The success of the system of governance can be guaranteed and achieved only when these pillars of the State exercise their powers and authority within their limits without transgressing into the field of the others by acting in the spirit of harmony, cooperation and coordination.[5]

However it was the Judiciary which was made responsible for checking the transgressions of the Constitutional provisions by either the Executive or the Legislature. As commented by Mr. Ajmal Mian, Chief Justice of the Sindh High Court, as he then was (and later to be the Chief Justice of Pakistan):

I may observe that 1973 Constitution was framed with consensus of all the political parties and the members of the National Assembly. It contemplated trichotomy of power between the three organs of the State, namely, the legislature, the executive and the judiciary. Each organ of the State was to function/operate within the bounds specified in the Constitution. The judiciary was assigned very important role to play, namely, to act as the Watch Dog and to ensure that none of organs or the Government functionaries acts in violation of any of the provisions of the Constitution or of any other law. Since the above role entrusted to the judiciary under the Constitution was very delicate, it was envisaged that the judiciary would be independent and separate from the other organs of the State.[6]

This important “watch dog” role is, crucially, enabled by provisions in the Constitution that secure the independence of the judiciary.

Chief Justice Hamoodur Rahman, speaking for the Supreme Court of Pakistan in State vs. Ziaur Rahman[7], explained that the power of judicial review given to the superior courts under the Constitution is not to be construed as the supremacy of the judiciary over the Executive or the Legislature:

In exercising this power [of review], the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as a paramount law whenever a legislative enactment comes into conflict with it because, it is its duty to see that the Constitution prevails. It is only when the Legislature fails to keep within its own Constitutional limits, the judiciary steps in to enforce compliance with the Constitution.[8]

The Objectives Resolution, the preamble, Article 2A, and Article 175 of the 1973 Constitution provide for the independence of the judiciary. There are other provisions that support and further such independence. These include the detailed provisions with regard to the composition of superior courts, the qualification and eligibility for appointment of judges, and the conditions of their service. Even the removal of judges is specifically provided through the Supreme Judicial Council under Article 209.

A former Chief Justice of Pakistan, Mr. Saiduzzaman Siddiqui, emphasised the central role of the appointment of judges in the independence of the judiciary in Asad Ali vs. Federation of Pakistan[9]:

Right of access to impartial and independent Courts/Tribunals is a fundamental right of every citizen. The exercise of this right is dependent on the independence of judiciary which can be secured only through appointment of persons of high integrity, repute and competence, strictly in accordance with the procedure prescribed under the Constitution to the high office of the Judges of superior Courts. The selection of a person to the high office of the Chief Justice of Pakistan is a pivotal appointment for maintaining the independence of judiciary and for providing a free and unobstructed access to impartial and independent Courts/Tribunals to the ordinary citizens. Therefore, any deviation from the method prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan, would give rise to the infringement of the right of a citizen to have free, fair and equal access to an independent and impartial Court/Tribunal, thus violating the rights guaranteed under Articles 9 and 25 of the Constitution.[10]

Another former Chief Justice of Pakistan, Mr. Nasim Hasan Shah, summed up the consensus of jurists on the independence of the judiciary:

(a) that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reasons; and

(b) that the judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.[11]

The matter of the separation of the judiciary and its independence from the executive came up for consideration before the Sindh High Court at Karachi in Sharaf Faridi vs. Federation of Pakistan[12]. The Court held in this case that it is incumbent upon the Government, under Articles 175 and 203 of the Constitution, to bifurcate the magistracy into judicial and executive branches and to place the magistracy under the exclusive administrative control of the relevant High Court. The Court also dealt with the matter of the transfer of judges which could be used to victimize independent judges. It held that the transfer of judges from one High Court to another or to the Federal Shariat Court should be with the consent of the judges. The decision of the Sindh High Court was upheld by the Supreme Court of Pakistan in Government of Sindh vs. Sharaf Faridi[13]. The Supreme Court highlighted the need for the financial autonomy of the judiciary as an important element in its meaningful independence.

In Al-Jehad Trust vs. Federation of Pakistan[14], and Asad Ali vs. Federation of Pakistan[15], the Supreme Court further strengthened the independence of the judiciary by making it obligatory for the President to accept appointments to the vacant posts to fill vacancies in the posts of judges in the Supreme Court and High Courts on the recommendations of the Chief Justice unless the President recorded “sound and valid reasons” to the contrary. Similarly, the appointment of Chief Justice is to be by seniority except for “concrete and valid reasons”. The Supreme Court also held, in these cases, that the transfer of a judge from a High Court to the Federal Shariat Court, without the consent of the judge, shall be violative of the Constitution. All these safeguards were intended to check political influence being exercised in judicial appointments and transfers.

The classical formulation of the supremacy of the Rule of Law is included in Article 4 of the Constitution:

4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular—

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

It is one of the most valuable virtues of the Constitution that it provides extensively for the powers and functions of the superior judiciary. The power of judicial review and the other wide-ranging powers under Article 199 and Article 184 with respect to fundamental rights have given a broad sweep to the role of the superior courts. A complete Chapter I in Part II deals with Fundamental Rights that are enforceable by the High Courts under Article 199(1)(c) and by the Supreme Court when the Fundamental Rights present questions of public importance (Article 184). These rights cannot be abridged (Article 199(2)).

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948 had set a “common standard of achievement” for the global community and had catalysed the formulation and development of the international protection of human rights. Included in this catalogue of human rights were rights to life, liberty, security, freedom from arbitrary arrest and detention, right to a fair trial, freedom of association, religion, and expression. These declaratory principles were concretized in treaty obligations under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both adopted in 1966.

In the meantime, at regional levels, the European Commission and the European Court of Human Rights had developed extensive jurisprudence, under the European Convention of Human Rights, to internationalize the protection of human rights. Similarly, the Inter American Commission and the Inter American Court of Human Rights had promoted the American Convention of Human Rights across national boundaries in the region.

Human Rights had, therefore, come a long way and, when the National Assembly of Pakistan undertook the drafting of the Constitution in the early 1970’s, it was inevitable that it could not be oblivious to the international trends towards strengthening Rule of Law in domestic regimes. Influenced by these developments, at the regional and international level and, undoubtedly, by national experiences, the 1973 Constitution made a commendable commitment to the declaration and protection of a broad range of fundamental rights covering the right to life, safeguards against arrest and deletion, right to dignity, freedom of movement, freedom of association and assembly, freedom of trade, business, or profession, freedom of speech and freedom to profess religion, and the right to acquire, hold and dispose of property. Equality of citizens and provisions on non-discrimination are also included in the Fundamental Rights.

For individuals and members of Pakistan’s civil society, the superior courts have been a major bulwark against encroachments of their fundamental rights. The country’s law reports are replete with examples when the judiciary used the Constitutional provisions to prevent oppression, usurpation and injustices. Particularly commendable has been the activist suo motu interventions of its superior courts, in public interest litigation[16], to protect the poor, the voiceless and the marginalized sections of our communities, or address pressing social issues such as environmental degradation, malpractices in the educational system, bonded labour, child abuse, and victims of gender exploitation. In many ways, this experience in the protection of Fundamental Rights[17] and the Rule of Law has been the finest hour of Pakistan’s judiciary.

2. Freedom of Information and the Constitution

Article 19A was inserted in the Constitution by Section 7 of the Constitution (Eighteenth Amendment) Act, 2010:

7. Insertion of new Article in the Constitution:

In the Constitution, after Article 19, the following new Article shall be inserted, namely:

“19A. Right to information:

Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.”

Similarly, the Eighteenth Amendment also added Article 10A on the right to a fair trial and due process:

10A. Right to fair trial.—For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

Article 19A confers on all citizens a right to have access to information in all matters of public importance, subject, however, first to regulations and secondly to reasonable restrictions by law. This right would be essential for a fair trial and due process guaranteed by Article 10A. Non-framing of the regulations cannot have the effect of rendering the right under Article 19A as nugatory. Therefore, even if no regulations are framed, this right is available to all the citizens. In the absence of regulations and in the absence of restrictions, the court is required to determine whether a request for information in a particular case or a denial of information in a particular case is reasonable or with lawful authority or not. But the Article also provides that it must be in “matters of public importance”. Accordingly, it must be a matter in which the public at large or at least a substantial section of population is interested.[18]

3. Federal and Provincial Legislation on Freedom of Information

Under the Constitution of Pakistan, the Federal Government and each of the four (4) Provincial Governments can promulgate an Ordinance at the time when the applicable legislature is not in session and such an Ordinance continues to exist and apply as law for a stipulated period during which the legislature must adopt the Ordinance, with or without amendments, as an Act failing which the Ordinance lapses.[19]

Led by international developments in this field and, particularly, after the resounding impact of the Convention to Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, Denmark, 1998 (the “Aarhus Convention”), the President of Pakistan, in 1997, promulgated the Freedom of Information Ordinance. The Ordinance was not enacted by the Parliament and lapsed. But the energy around it survived.

In 2001, the Asian Development Bank (“ADB”) approved a comprehensive action plan for Pakistan that covered the judicial and administrative reform in the country. The programme to improve the state of access to justice to the people included legislative arrangements for the Freedom of Information. As a part of the programme, the military government of General Pervez Musharraf promulgated the Freedom of Information Ordinance in October 2002 (the “Ordinance”). This Ordinance was later validated by the Parliament through a Constitutional amendment.

The law, however, remained inoperative for two (2) years because the rules to implement the law were yet to be formulated. Finally, after a continuous and comprehensive campaign of civil society and other stakeholders, the rules were formulated and notified in 2004. Though the Ordinance was promulgated and rules have been formulated, the exercise of rights included in them remained limited with multiple categories of exempted information.[20]

Like Section 19 of the Ordinance, legislation in Balochistan (Freedom of Information Act, 2005) and Sindh (Sindh Freedom of Information Act, 2006), entrusted the role of an appellate body to the office of the Ombudsman having no power to impose penalty on public officials for unlawfully delaying or denying access to information. The provincial legislation merely mirrored the complacent and lackluster approach of the federal legislation. In comparison, the recent Khyber Pakhtunkhwa Right to Information Act, 2013 (the “RTI-KPK”) provides a dynamic model for greater access to information. The RTI-KPK has received great accolades around the world and is acclaimed as holding a high position in the global right to information law rankings. Experts at the World Bank have appreciated this move and note that the legislation contains “all the features that are vital for a strong right to information law”.[21]

Prior to the promulgation of the Ordinance, the issue of public documents/ information (Articles 85 and 86) was governed under the provisions of Qanoon-e-Shahadat Order, 1984 (the “Order”). However, the provisions of the Order could not serve the purpose of ensuring transparency as they were mainly focusing on evidentiary value of documents in the courts. Moreover, the presence of secrecy laws did not allow people to take benefit from this provision. Public debate on the ineffectiveness of the rights/access to information shifted the tide in favour of amending the current laws and increasing the ambit of rights of information to the public.

4. Comparison of the 2002 Ordinance and the Proposed Right to Information Act, 2010

In November 2010, the post-Musharraf Government proposed the Right to Information Act (the “Proposed Act”). The Proposed Act appears to be an extension of the Ordinance with negligible differences in the content as detailed below.

The Proposed Act provides that it should be interpreted so as to promote the right to know and, like the Ordinance, to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information (Section 3(ii)(a) and (b)).

In the Proposed Act, as in the Ordinance, the list of exemptions to access to information is long with the result that it is more likely to exclude the information than provide it. The list continues to include: (1) exemption from disclosure of information that could likely cause grave and significant damage to the interests of Pakistan in the conduct of international relations (Section 15(1)),[22] and (2) disclosures harmful to law enforcement (Section 16), privacy and personal information (Section 17) and economic and commercial affairs (Section 18).

However, the Proposed Act does attempt a dynamic approach such as in its Section 5 which introduced the concept of a “Principal Officer” (Section 2(h)) of each public body. The Principal Officer, as provided in Section 5(ii) is required to, within six (6) months, cause to be published in the Official Gazette (or special publications) and immediately make available for inspection and copying, information including, inter alia, description of the organization and functions of public bodies, statues, rules, regulations, orders, applicable to the public body, substantive or procedural rules and regulations of general application, conditions in respect of acquiring licenses, permits, consents and other such information.

Section 8(1) of the Proposed Act provides that all exclusion and classification must be accompanied by a record of reasons for such exclusion.

In respect of Section 19, Recourse to the Mohtasib and Federal Tax Ombudsman, both legislations continue to have similar provisions that provide that if the applicant is not provided or refused the information declared as public record under Section 7, the applicant may, within thirty (30) days of the prescribed time for giving such information, file a complaint with the head of the public body. On failing to get the requested information, within the prescribed time, the applicant may file a complaint with the Mohtasib and in cases relating to Revenue Division, its subordinate departments with the Federal Tax Ombudsman.

The Mohtasib or the Federal Tax Ombudsman, as the case may be, may, after hearing the applicant and the designated official, direct the designated official to give the information or, as the case may be, the copy of the record or may reject the complaint (Section 19(2)).

Section 19(2) of the Proposed Act, however, provides that all such applications mentioned above shall be disposed of within fourteen (14) days of being filed, which puts the burden on the authorities to ensure timely decisions. Section 19(3) of the Proposed Act further provides that, the complainant may challenge the decision of the Mohatasib or the Federal Tax Ombudsman, as the case may be, in the High Court of competent jurisdiction and in the event of an adverse decision, appeal to the Supreme Court.

As per Section 20 of the Proposed Act, as also provided in the Ordinance, where a complaint is found to be malicious, frivolous, vexatious, the complaint may be dismissed by the Mohtasib, and a fine may be imposed on the complainant up to an amount not exceeding ten thousands rupees (Re. 10,000). This imposition of penalty provides a deterrent and discourages applicants to pursue a case against a department that denies information.

The Proposed Act continues to include weak disclosure provisions, vague definitions of “information” and “national security” (the definition of which excludes a large amount of information) and provides a complicated process of filing information requests that could potentially result in discouraging applicants.

5. The Catalyst of Change: Khyber Pakhtunkhwa Right to Information Act, 2013

With the inclusion of Article 19A in the Constitution, the right to information was constitutionally acknowledged as a fundamental right instead of just a statutory right as provided by the earlier legislations.

In September 2013, the Khyber Pakhtunkhwa (“KPK”) Assembly passed the RTI-KPK, which meets all the standards of effective right to information legislation such as maximum disclosure (Sections 3, 5 and 7); minimal exemptions (Section 14); minimum cost for the requested information (Section 13); and disclosure taking precedence over exemption without providing a blanket exemption in any particular case. The law provides that even if the information pertains to categories of exempted information, there should be a strong presumption for disclosure if the information exposes corruption, criminal wrongdoing, other serious breaches of the law, human rights abuse, or serious harm to public safety or the environment (Section 14(e)). Section 3 provides that no requester shall be denied access to any information or record and that the RTI-KPK shall be interpreted so as to advance the purposes of the RTI-KPK and facilitate the disclosure of information at the lowest reasonable cost.

Under Section 24, the Government shall within a period of one hundred and twenty (120) days, establish an Information Commission under the RTI-KPK. The Information Commission shall be an independent body which enjoys operations and administrative autonomy from any other person or entity, including the Government or its agencies (Section 24(2)). The functions of the Information Commission shall be primarily to receive and decide on complaints (Section 25(1)) and perform all tasks that are necessary to do the same (Section 25(2)).

Section 26 provides the Information Commission with all, direct or incidental, powers that are necessary to undertake the functions as provided by the RTI-KPK including compliance with the law. The Information Commission shall, inter alia, have the power to (1) hold, acquire and dispose of property; (2) to conduct inquires, and have the powers of a Civil Court under the Code of Civil Procedure, 1908; (3) order a public body to disclose information (Section 26 (3)(a)), impose a fine on any official who willfully acts to obstruct any activity under the RTI-KPK (Section 26 (3)(b)).

Under Section 28 of the RTI-KPK, it is a criminal offence to (a) willfully obstruct access to any record with a view to prevent the exercise of a right, (b) obstruct the performance by a public body, (c) interfere with the work of the Information Commission, or (d) destroy a record without lawful authority. Anyone committing such an offence is liable to a fine or imprisonment (Section 28(2)).

There is an obligation on public bodies under Section 4 of the RTI-KPK to ensure that its records are properly maintained so as to enable compliance with the RTI-KPK and any relevant rules or standards established by the Information Commission. Section 5 provides the categories of information that shall be duly published by public bodies in an up-to-date fashion and a manner that ensures accessibility to all. Section 5(2) enforces a greater obligation on public bodies to publish an annual report highlighting what they have done to implement their obligations under the RTI-KPK and detailed information about the requests received and how they have processed them. This annual report is forwarded to the Chief Secretary, KPK and to the Information Commission to take such actions as they deem fit. This promotes transparency in the system and encourages the authorities to provide access to information. Section 8 provides that “all reasonable steps” shall be taken to assist any requester who needs assistance.

The applicability of the RTI-KPK is wide in scope applying to government departments, the legislature, chief minister/governor secretariat, lower courts, private bodies funded by government and private bodies providing public services (Section 3 and 2(i)).

As per Section 13(1), an applicant does not have to deposit any fee for submitting an information request. The applicant can submit a hand written application or send email queries to the head of concerned department (or to the Information Officer once designated) (Section 7(3)). Information Officers must help citizens in meeting requests without inquiring about the reason for requesting information (Section 7(5)). The concerned department is bound to provide information within ten (10) working days (Section 11(1)). For matters of life and liberty, information must be provided within two (2) working days (Section 11(3)).

Another unique provision of the RTI-KPK is in respect of whistleblowers (Section 30). No action can be taken against a whistleblower who
brings to light the internal wrongdoings in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

C. Conclusion

The concept of rule of law is well understood and developed in Pakistan to adequately facilitate optimum implementation of environmental protection and sustainable development regimes. The introduction of “environmental” rule of law will not in any way help the presently satisfactory constitutional and legal framework in Pakistan. Instead, while it may not help, environmental rule of law may possibly add to the burden of seeking a de novo judicial acceptance of this new categorisation of rule of law.

D. Recommendations[23]

If the purpose of this First International Colloquium includes the promotion of the ability of national courts to appropriately implement national and international environmental regimes, the presently applicable rule of law could be strengthened by the following measures:

1. Regionalize Environmental Protection

Experience in the human rights field has shown that the success of any global efforts are considerably enhanced by regional initiatives such as the European Convention of Human Rights and the American Convention of Human Rights. An Asia Pacific Covenant on Environment and Development or even sub-regional compacts such as by SAARC and ASEAN can bring much energy at these levels which has lagged at the international level. If an over-arching regional treaty on sustainable development is too ambitious at this stage, attention should be given to regionalize, in Asia Pacific, the Aarhus Convention. The common history, geography, problems and resource levels can contribute to a common vision and ownership for sustainable development in the region and sub-regions.

2. Capacity Building of Judges, Prosecutors and EPAs

With a satisfactory constitutional and legal framework for environmental management in place in almost all the countries of the Asia Pacific Region, the need today is to strengthen the capacity for implementing such framework. The judiciaries of South Asia have led in a dynamic and activist interpretation of particularly the right to life to include a right to a clean and healthy environment.[24] This salutary trend needs to be reinforced by building the capacity of subordinate judges, prosecutors and the Environmental Protection Agencies.

3. Compilation of Soft Law Instruments

Judges, prosecutors and other law enforcement officials will benefit from a readily-available and reader-friendly compilation, in one volume, of soft law instruments such as the Stockholm Principles (1972), World Charter for Nature (1982), Rio Declaration on Environment and Development (1992), Johannesburg Principles (2002), Rio + 20 (2012), Earth Charter (2000), and the IUCN Covenant on Environment and Development. These will show the emergence of durable principles and concepts such as sacred trust for future generations, inter-generational equity, intra-generational equity, polluter pays principle, principle of sustainable development, need for public participation, environmental impact assessment, principle of prevention, precautionary principle, principle of restitution/restoration of environment, principle of strict liability, public trust doctrine, and RRR (reduce, recycle, and reuse) in waste management. Experience has shown that in South Asia, the superior judiciary has readily applied soft law principles such as the precautionary principle in environmental adjudication.[25] A compilation of leading sectoral Multilateral Environmental Agreements would also be helpful.

4. Updating of UNEP Compendium of Decisions

The UNEP Compendium of Decisions, both National and International, has been helpful to judges and prosecutors who use the experience of other jurisdiction to handle matters in their own. The Compendium was published in 1998 and although the updates are available on the internet, an updated Compendium would be handy in the libraries of judges and environmental lawyers and officials.

At the end, I would like to add that the recent declarations and resolutions such as Johannesburg 2002 and Rio +20 emphasized that the challenge before the international community is to implement sustainable development. The urgent need, today, is to walk the talk. Coining new terms may be exciting talk. But I had rather walk the road already before us.

[1]. See, generally, Parvez Hassan, The Role of the Judiciary and Judicial Commissions on Sustainable Development Issues in Pakistan, in 37/2-3 Environmental Law & Policy 185-193 (2007), also in 2006 All Pakistan Legal Decisions, Journal, at 45-59; see also Parvez Hassan, The Role of Commissions in Public Interest Environmental Litigation in Pakistan, 2011 All Pakistan Legal Decisions, Journal, at 78-89; Parvez Hassan, Environmental Rights as Part of Fundamental Rights: The Leadership of the Judiciary in Pakistan, in A. Benjamin (ed.), Law, Water and the Web of Life: A Tribute to Parvez Hassan 199-214 (Law for a Green Planet Institute, Brazil, 2003); also in Environmental Rights as part of Fundamental Rights: The Leadership of the Judiciary in Pakistan, in A. Postiglione (ed.), The Role of the Judiciary in the Implementation and Enforcement of Environment Law, 135-159 (Bruylant Bruxelles 2008). See also Chapter on Pakistan (with Jawad Hassan), in L. Kotze and A. Paterson (eds.), The Role of the Judiciary in Environmental Governance: Comparative Perspectives, 381-409 (Wolters Kluwer 2009).

[2]. See Parvez Hassan, Permanent Sovereignty over Natural Wealth and Resources, 1962, a paper submitted for Professor Myres S. McDougal at Yale Law School (Spring Term 1963).

[3]. This Section has been developed from Parvez Hassan, Environmental Protection, Rule of Law and the Judicial Crisis in Pakistan, 10 (Issues 3 and 4) Asia Pacific Journal of Environmental Law, 167-182 (2007).

[6]. Sharaf Faridi vs. Federation of Pakistan, PLD 1989 Karachi 404, at 427–28.

[11]. Government of Sindh vs. Sharaf Faridi, PLD 1994 Supreme Court 105, at 107.

[16]. See, generally, remarks of Parvez Hassan, Securing Environmental Rights through Public Interest Litigation in South Asia, at the Global Judges Symposium on Sustainable Development and the Role of Law, at Johannesburg, South Africa, 18-20 August 2002, organized by the United Nations Environment Program, and published with Azim Azfar in 22.3 Virginia Environmental Law Journal 216-236 (2004)). See also Nasim Hasan Shah, Public Interest Litigation as a Means of Social Justice, PLD 1993 Journal 31.

[17]. The observance of religious freedoms under our Constitution has been dealt in an earlier article, Parvez Hassan, Religious Freedom: A Comparative Analysis of the U.S. and Pakistan Constitutions, PLD 1987 Journal 157-170.

[18]. See, Muhammad Masood Butt vs. S.M. Corporation (Pvt.) Limited, PLD 2011 Karachi 177.

[20]. Sections 14 –18 of the Ordinance.

[21]. Umar Cheema, “KPK a Catalyst for Change”, The News, 20 August 2013.

[22]. In respect of such disclosure, the difference between the two (2) legislations is that the Proposed Act provides that reasons for deeming the information as exempt have to be explained by the withholding party.

[23]. See Parvez Hassan, Human Rights and the Environment: A South Asian Perspective, keynote address at the 13th Informal ASEM Seminar on Human Rights, on 21-23 October 2013, at Copenhagen, Denmark (under publication in the Journal of Human Right and the Environment in 2014), and Parvez Hassan, Environmental Jurisprudence from Pakistan: Some Lessons for the SAARC Region, in 2012 Corporate Law Decisions, Journal, at 24-49. Further, recommendations will be found in the remarks by Parvez Hassan, Elements of Good Environmental Governance, delivered at the Asia Pacific Parliamentarians Forum Tokyo, Japan, 10-11 May 2001, published in 6 Asia Pacific Journal of Environmental Law, at 1-11

[25]. Shehla Zia v WAPDA PLD 1994 Supreme Court 693. See also supra notes 1 and 23, and Parvez Hassan, Changing Global Order: Role of Courts and Tribunals in Pakistan in Environmental Protection, a paper presented at the Third International Symposium of Laureates of the Elizabeth Haub Prizes held in Murnau, Germany, on 14-16 November 2013.