PUBLIC INTEREST LITIGATION IN ENVIRONMENTAL MATTERS
SINCE 1990 TO 2000
By:
REHAN RAUF
Advocate
M.A. (Political Science)
M.A. (History)
P.G.D.E.L., LL.B. (
E.mail: djrehan103fm@yahoo.com
This subject examines the
role of superior courts of
(1) There is no direct provision in the
constitution with respect to environmental protection and sustainable
development. Apparently, the emerging internationalism of recourse management
captured in the 1972 Stockholm Conference on the Human Environment was too
recent to then receive the attention of the draftsmen of the Constitution.
(2) The nearest reference to the
‘environment’ is found in concurrent list, Item 42 that includes “ecology”.
This means that both the federation and the four provinces can legislate in
this area with federal primacy in the case of a conflict between a federal and
provincial law (Article 143)
(3) Part II deals with fundamental rights
which are justiciable in the High Courts of Pakistan {Article 8(1) and 199(2)}
including through the writ jurisdiction of the superior courts (the four
provincial high Courts and the Supreme Court of Pakistan). Article 9 and 14 provide
for the right to life and the right to dignity:
(a) Article 9
Security
of Person: No person shall be
deprived of life or liberty save in accordance
with law.
(b) Article 14
Inviolability of dignity of man
etc. (1) The dignity of man and, subject to law, the privacy of home, shall
be inviolable…
(4) The jurisdiction of the supreme court in
respect of Public Interest Litigation has been developed from Article 184(3):
Without prejudice to the provisions of
Article 199, the Supreme Court shall, if it considers that a question of public
importance with reference to the enforcement of any of the fundamental rights,
conferred by chapter-1 of part-II, is involved, have the power to make an order
of the nature mentioned in the said Article.
(5) Under the constitution, the law laid
down by the Supreme Court is binding on the four provincial High Court and the subordinate judiciary (Article 189).
2. Legal Framework
The
corner stone of environmental legislation is the Pakistan Environmental
Protection Act, 1997 that superceded the Pakistan Environmental Protection
Ordinance promulgated in 1983.
(B) ENVIRONMENTAL CASES
UNDER PUBLIC INTEREST LITIGATION
The following is the
chronological summary of public interest litigation in the Superior Courts of
Pakistan in respect of Environmental matters.
(1) In 1990, the First Public Interest Litigation
in the field of environment in the country was Roedad Khan vs. Federation of Pakistan and 41 Others, Writ
Petition No. 642 of 1990 filed by the Margallah Hills Society in the Lahore
High Court,
“In the well-known case relating to Margallah Hill. The complainant was that the stone crushing plants
established there were not only destroying these
lovely Hills but also posing a serious health hazard to the people living all
round. The approach of the Lahore High Court Bench seized of this matter has
been very positive and attendant publicity to the proceedings of the court has
resulted in the initiation of remedial action by the government itself in this
matter.”
(2) In the same year the High Court upheld the locus standi to maintain the constitutional
petitions for public interest in general public. This was held in Ch. Riaz
Mahmood Yazdani vs. the Federation of Pakistan, 1990 CLC
(3) A year after in 1991, Writ Petition No. 9297 of 1991, was filed in the Lahore High Court, by United
Welfare Association,
“The Anxiety felt by the court hearing
this complainant is manifest from the order it passed on
Dr. Parvez Hassan visited
the area and reported to the Lahore High Court that:
The
air-borne pollutants, from the operational activity of the plant, are disperses
over a large area…and that these pollutants were emitting toxic substances like
sulpher dioxide, nitrogen oxides, hetrocylic 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
adjourning residential areas to a clean and healthy environment. The resident are continually exposed to the obnoxious fumes and
the potential health hazards unleashed by these asphalt plant. These should be
removed from the site and relocated in areas where there is no danger to the
environment. Even at the relocated sites, activities of the plant should be
monitored with a view to minimize the impact of their environmental
degradation.
As a result of this report,
the Director General, LDA Passed order for the shifting of the asphalt plants.
(4) In June
Before the court could
consider this complaint, the Prime Minister intervened. At the end of the June,
the Prime Minister announced that he had directed the
(5) In 1991, the Society for Conservation and
Protection of Environment filed two
writ petitions in the Sindh High Court relating to separate permissions given
to foreign nationals to hunt the Houbara Bustard because each winter on the
invitation of the Ministry of Foreign Affairs middle castern dignitaries arrive
in
Houbara has been listed as
a protected species in Provincial Wildlife legislation, Sindh Wildlife
Protection Ordinance, 1972 and its hunting is banned under law. One writ
received a successful verdict, which was challenged in the Supreme Court, which
upheld the decision of the Sindh High Court. In the order writ a stay order was
passed but the case itself remained undecided. However, neither of these cases
sought overriding directions from the court to the government to enforce its
own laws in connection with the hunting of Houbara Bustard. The judgment dealt
only with specific hunting permissions, nevertheless, due to these petition the
number of hunting permits for the Houbara have dropped.
(6) The same year, a similar case was brought by WWF in the
(7) In
(8) In 1992 re:
Pollution of Environment Caused by Smoke, Emitting Vehicle, Traffic Muddle H.R.
No. 4-k Of 1992, 1996 SCMR 543, the
Supreme Court passed interim order for taking effective and remedial measures
in order to streamline the process of checking as a first step in eliminating
the air and noise pollution from Karachi.
In
order to streamline the process of checking as first step in eliminating the
pollution caused by the smoke emitting vehicles, the following interim order
was passed by the Supreme Court: -
(a) A minimum of two mobile checking per
week per district for at least 2-1/2 hours duration
should be arranged in terms of the earlier order, which is being practiced.
Henceforth the Honorary Magistrate appointed by the Provincial Government with
the approval of the Chief Justice, High Court of Sindh, be associated with the checking team and if
S.T.Ms are not available, the honorary magistrate shall try and dispose of
summary cases at the time of checking.
(b) The monthly schedule of the mobile
checking shall be issued by the S.T.M. or any person authorized by the
commissioner without mentioning the checking location, which shall be decided
by the checking team at the time of starting the checking on that day.
(c) A weekly repot of such checking shall be
issued by the S.T.M/ Honorary Magistrate to the C.P.L.C., Central Reporting
Cell, which shall compile the same and submit a consolidated report with
comments and suggestions to the Assistant Registrar, Supreme Court,
(d) A report shows that neither
M.T.C Government vehicles including police vehicle and certain “marked”
private transport vehicles are not challaned. This discrimination should end
and all vehicles irrespective of their owner/driver should be brought to book
in case they violate the law. On query what is meant by “marked” transport
private vehicle it was disclosed that these vehicle bear a particular mark,
inscription, insignia or certain word which are understood by certain persons
involved with the traffic checking and they just allow them to pass without
checking that they belong to influential persons. This is a deplorable
attitude. The authorities concerned are directed to check vehicles irrespective
of fact whether they are marked or not, but if this policy of not challaning
marked vehicle persists, the representative of C.P.L.C. associated with the
checking team should note down the number of such vehicle and report it to the
C.P.L.C. reporting center which shall forward it to the Assistant Registrar,
Supreme Court, Karachi.
(e) Motor vehicle inspection Procedure
should be totally overhauled and every week, D.I.G., shall obtain the
particular of such vehicles to which fitness certificates have been issued by
Motor Vehicle Rules. And forward them to C.P.L.C., central Reporting Cell that
shall submit with comments to the Assistant Registrar, Supreme Court,
As regards Nose Pollution Following interim order is
passed.
(i)
As
required by the Motor Vehicle Ordinance the concerned authorities should ensure
that the motorcycle rickshaws are not allowed to ply without silencers. It has
been pointed out that there has been a practice in
(ii)
Many
vehicles are found with fitted pressure horns or multi-tone horns giving unduly
harsh shrill loud or alarming voice. Rule 154 of the Motor Vehicles Rules, 1969
prohibits fitting of such horns. The practice seems to be that such vehicles
are challaned and pressure horn are disconnected or seized by the police. However,
in order to make it more effective whenever any authority seizes such horn, it
should deposit it with
(9) In 1993, Two
Constitutional Petitions No. CA 164-K/93 and CA 206-k/93, under Article 199 of
the Constitution were filed by SCOPE, World Wild Life Fund (WWF) and one Syed
Kamal Ahmad against Karachi Water and Sewerage Board (KWSB), which is responsible for the management of the Haleji
Lake for auctioning the commercial fishing rights for Haleji Lake sanctuary.
The case was heard on
(10)
In
The coast
Finding
this violation of Article 9 of the Constitution, it ordered the Government of
Balochistan to explain whether coastal lands of Balochistan or any area within
the territorial water of
(11) In Ms. Shehla Zia
and Others vs. WAPDA, PLD 1994 SC 693,
Four citizens protested to WAPDA against the construction of grid station with
high voltage transmission lines in the Green-belt of a residential locality in
Islamabad. Dr. Parvez Hassan was counsel on behalf of the petitioner. The
Supreme Court in this Landmark Judgment, already being cited internationally,
held that the right to clean environment is a fundamental right of all citizen
of
(a) Article 9 of the Constitution provides
that “No person shall be deprived of life or liberty save in accordance with
law. The word “life” is very significant as it covers all facts of human
existence. The word “life” has not been
defined in the Constitution bit tit does not mean no can be restricted to the
vegetative or animal life or mere existence from conception to death. Life
includes all such amenities and facilities, which a person born in a free
country is entitled to enjoy with dignity, legally and constitutionally.
(b) Article 14 provides that the dignity of
a man and subject to law the privacy of home shall be inviolable. The
fundamental right to Preserve and protect the dignity of man under Article 14
is unparalleled and could be found only in few constitutions of the world.
(c) The constitution guarantees dignity of
man and also right to “life” under Article 9 and of both are read together,
question will arise whether a person can be said to have dignity of man if his
right to life is below bare necessity like without proper food, clothing,
shelter, education, health care clean atmosphere and unpolluted environment.
(d) These judgments {Indian judgment cited by the
Appellant} go a long way to show that in case where life of citizens is
degraded, the quality of life is adversely affected and health hazards are
created affecting a large number of people, the court in exercise of its jurisdiction
under article 183(3) of the constitution may grant relief to the extent of
stopping the functioning of units, which create pollution and environmental
degradation.
The Supreme Court also accepted the importance of the
Rio Declaration on Environment and Development and the Precautionary Principle
included in its Principle 15.
The Supreme Court prevented the establishment of the
high voltage grid station by directing:
While
planning and deciding to construct the grid station WAPDA and the Government
Department acted in routine manner without taking into consideration the latest
research and planning in the field nor any thought seems
to have been given to hazards it may cause to human health. In these
circumstances, before passing any final order, with the consent of the both
parties, we appoint NESPAK as Commissioner to examine and study the scheme,
Planning, device and technique employed by WAPDA and report whether there is
any likelihood of any hazard or adverse effect on health of the residents of
the locality, NESPAK may also suggest variation in the plan for minimizing the
alleged danger. WAPDA shall submit all the plans, scheme and relevant
information to NESPAK…WAPDA is further directed that in future prior to
installing or constructing any grid station and/or transmission line, they
would issue public notice in the newspaper, radio and television inviting
objections and to finalize the plan after considering the objections, if any,
by affording public hearing to the person filing objections; this procedure
shall be adopted and continues by WAPDA till such time the Government
constitutes any commission or authority as suggested above.
The judgment enable future
public interest litigation without the technical hurdles of “standing to ‘sue”
or the necessity of being directly affected as an “aggrieved person”.
(12) Again in
(A) Punjab Coal Company (P.P.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:
(i)
Dr.
Parvez Hassan, Advocate,
(ii)
Dr.
Tariq Banuri;
(iii)
Director,
Industries and Mineral Development,
(iv)
A
member nominated by PMDC [Pakistan Mineral Development Corporation]; and
(v)
A
member co-opted by the aforesaid members of the commission.
The Commission shall have power of inspection,
recording evidence, examining witnesses including the powers as provided by
Order XXVI Civil Procedure Code 1908. If, on the report of the commission, it
transpires that shifting of the mine mouth is not possible, then the case shall
b place before the court for further consideration including the question
whether the operation of mine No.27A should be completely stopped;
(B) PMDC is directed to install a second
pipeline connecting the top level reservoir;
(C) PMDC will enlarge the top level water
reservoir and construct wall reservoir cost of which will be shared equally by
PMDC and P.P.C.;
(D) P.P.C. and all the mines operating
adjacent to the water catchment’s area shall take such measure to the
satisfaction of the Commission, which may prevent pollution of the water source
reservoir, stream beds and water catchment’s area;
(E) Respondent No.1 and all authorities
empowers and authorized to grant, renew or extend the mining lease or license,
are ordered:
(i)
Not
to grant any fresh lease/license/ permission to carry out mining work in the
area which prior to 1981 was water catchment’s area;
(ii)
Not
to renew or extend existing lease/license of the mines mentioned in the
Schedule to the judgment without prior permission of this court…
The
full commission visited the site and finalized its report and recommendations
to the Supreme Court to strengthen the measures already directed by Supreme
Court.
(13) In
In
the August 1996 the High Court gave a judgment holding that the
(14) In M.D. Tahir,
Advocate and others vs. Provincial Government through its Secretary, Forest
Department, Lahore and others, 1995 CLC 1730 the petitioner filed a writ petition against the Government for
issuance of direction to the authorities to refrain public from
hunting/killing/catching/confining/caging/trading and eating of meat/beef of
Hourbara Bustard, Partridge and all kinds of other birds, animals, and to
direct them to act strictly in accordance with law, the Punjab Wildlife
(Protection, Preservation, Conservation and Management) Act 1974.
The
court dismissed the petition in holding that every citizen of
(15) In Mst. Ameer
Bano vs. S.E. Highways, PLD 1996 Lahore 592, the petitioner raised the grievance that the sewerage system in
Bahawalpur had become totally unserviceable with the result that the dirty
water has collected on the form of ponds, in some cases it has entered the
dwelling houses and on the roads. The highway department is constructing the
roads at a very high level and if it is allowed to continue, the overflowing
dirty water will enter the residential houses.
The
court held that, it is apprehended the residents will contract many diseases,
which in turn will mean that human life in the area will be endangered. Thus,
protection to life guaranteed under article 9 of the constitution will stand
denied to a large number of citizens. The court treated the petition as Public
Interest Litigation for the enforcement of fundamental rights. Due to urgency
involved the court decided to decide the petition immediately and dispensing
with the normal procedure of admitting the case in the first instance and
deciding it later on. The court issued certain directions to secure the
fundamental rights of the citizen with regard to protection of their life from
disease and inconvenience.
(16)
In Asfand Yar Khan vs. Chief
Commissioner, Islamabad Capital Territory, Islamabad and 3 others, 1996 SCMR
1421 the petitioner challenged
termination of his lease by the authority in the Writ Petition No. 965 of
1995 before the High Court because his lease was terminated on the ground
that the demarcated leased area has been declared to be Margallah Hills as
National Park under section 21 of the Islamabad Wildlife (Protection,
Preservation, Conservation and Management) Ordinance 1979 and the breaking up
of the earth or digging or removal of stone etc. was prohibited from that area
under the said Ordinance.
The
High Court dismissed the writ petition because the area fell within the
National Park Area and because of the prevention of environmental pollution,
the blasting or quarrying of limes stones in the National Park Area could not
be permitted.
The
Supreme Court also refused the leave to appeal on the ground that there was no
substance in the appeal.
(17) In the
The
petitioner sought a direction from the curt that these two organizations be
restrained from promoting tobacco products and endangering human life.
Addressing the issue of locus stani the Lahore High Court held that a
public interest litigation can be initiated by a public spirited person who may
fell the wrong done to him and others or it may be initiated on or on behalf of
a voluntary organization or association which have dedicated themselves to work
for and protect the rights of the people on particular fields. Such persons,
bodies or associations cannot term as unconnected person with the causes
involved.
The
High Court relied upon the Shela Zia’s case, which had explained the scope of
“life” as envisaged in article 9 of the Constitution of Pakistan. It held that
by applying the principle of law as enunciated in Shehla Zia case to the facts
and circumstance of the present case, the citizens of this country and
particularly the younger generation are entitled for protection of law particularly
from being exposed to the hazards of cigarette smoking. A direction was issued
by the High Court, banning the cigarette advertisement after a period of three
years on Pakistan Television Corporation and Pakistan Broadcasting Corporation
before this period the advertisements shall not show the actual act of smoking
and the same is to be followed by a proper warning.
(18) In 1999, the
petitioner in Abdul Qayyum vs., DG, EPA 1999 PLR 640, filed a writ petition against the Environmental
Protection Agency (EPA) because of noise and other emissions from the
industrial units in their residential area. The petitioners have approached the
EPA several times to control the pollution by utilizing their power under PEPA
but EPA failed to do so.
The
Court while disposing of the petition held that the provisions of the PEPA do
show that the same are comprehensive and the agencies and authorities created
under the Act have also given the powers to lay down the necessary standards as
also to enforce the same by invoking penal provisions in accordance with law.
While the EPA in its comments has claimed that it has recommended shifting of
industries, it is failing to prosecute the offender in the event of its
reaching the conclusion that the discharges and emissions are not lawful or
more than prescribed. Therefore, the court issued a mandamus direction
to the EPA to deal with the matter in accordance with the provisions of the
PEPA.
(19)
In Tanvir Arif vs. Federation
of Pakistan, 1999 CLC 981 the
Petitioner filed the writ petition against the letter of the Chief Protocol of
the Ministry of the Foreign Affairs addressed to the Chief Secretary, Sindh
regarding the allocation an area for the hunting of Houbara Bustard for the
dignitary of U.A.E. because of the it being in violation of Section 7 of the
SWPO declaring Houbara Bustard as protected animal.
The
High Court in its earlier judgment declared that the license granted by the
authorities to the Foreign dignitary was in
contravention with the aims and objectives of SWPO and authorities are directed
to refrain from acting under said license. The court held that as responsible
officers of the Government it was their duty to uphold the law and the judgment
of this court. The court further held that
The
Deputy Attorney General of
(20)
The Writ Petition No. 13470 of
2000, Jawad Hassan vs. Ministry of Law and others was filed for public interest because the PEPA came
in 1997 and the Environmental Tribunals which are constituted under section 20
of the PEPA with exclusive jurisdiction to try serious offences and to hear appeals, were not functioning till July 2000. There was
badly felt need for the presence of a working tribunal. Consequently, on
(21) In M.D. Tahir vs.
WAPDA and Others, 2000 MLD 851, the
Petitioner filed this petition for a direction against the Government to plant
trees in the country, to impose ban on the air conditioners, refrigerators and
deep freezers, which are causing environmental pollution. The Government filed
its
The
Court disposed off the writ relating to forestation because Government is
itself keen to promote this. On the question of air-conditioning the court
dismissed it on a ground that their Prima Facie use does not infringe any
fundamental rights of the petitioner.
(22) In Abdul Latif
vs. Additional Session Judge, Sahiwal, 2001 CLC 1139, the writ petition was filed against the order of the
Additional Session Judge, Sahiwal who declared that the leather factory was
causing a nuisance under Section 133 of the Code Of Criminal Procedure,
1868 (Cr, PC). The Lahore High Court held that the PEPA is a complete code
for inter alia, prevention/elimination of any pollution amounting to public
nuisance as visualized by section 133 of Cr.PC. The PEPA being special statutes
override the provisions of general statute, criminal law in respect of matters
covers by it.
(23) On 15 February,
the Lahore High Court in the Writ Petition No. 671 of 1995 titled Rana Ishaque vs. DG, EPA and others,
restrained 121 industrial units of Punjab from discharging effluents into
drains and canals on a petition stating that these were being drained without
treatment. The petitioners stated that effluents were being illegally drained
into water. Consequently, the Executive Engineers of the Irrigation Department
wrote letter to the industries regarding implementation of the High Court’s
order and obtaining the NOC from the EPD. The letters further directed after
(24) In February 2001
the
(25) In 2000 eleven
NGOs filed a constitutional petition against the Government of
In
June 2001, the Governer of sindh amended the SWPO. The amendment was that the
prohibition would not apply “ to any activity in a
national park in connection with the exploration or production of oil and gas
which is undertaken in accordance with an environmental impact assessment”.
On