Article 9A
The 26th Amendment to the Constitution of Pakistan passed by the Senate on Sunday, 20th October, has had the media, intellectuals, and citizens on their toes with its controversial postulates. While the discussion about the consequences of the amendment continues, one provision has gone unnoticed. Amid the many provisions of the amendment, Article 9A, i.e., the right to a clean, healthy, and sustainable environment, has also made its way to the constitution of Pakistan.
This was a much-needed provision considering Pakistan’s increasing vulnerability to climate change. Article 9A is good news for the legal fraternity, environmental activists, and the vulnerable sections of society often at the receiving end of ecological disasters in Pakistan, as it marks the beginning of environmental constitutionalism in Pakistan.
Environmental Protection Framework in Pakistan
The legal framework for environmental protection comprises federal and provincial legislation that regulates and manages different ecological components such as water, forests, fishes, and protected zones. The primary law focused on creating environmental protection mechanisms is the Pakistan Environmental Protection Act (PEPA), 1997. It is a federal law, which is mirrored by the provincial legislations of Sindh, Punjab, Balochistan, Khyber Pakhtunkhwa (KPK), Gilgit Baltistan, as well as Azad Jammu and Kashmir (AJK).
The law laid the foundation of federal and provincial environmental protection agencies (sections 5 and 8), prohibits the discharge of any effluent, waste, or air pollutants above the National Environmental Quality Standards or section 6(1)(g)(i) of the PEPA 1997 (section 11), mandates Initial Impact Assessment (EIA) and Initial Environmental Examination (IEE) of projects that are likely to be adverse to the environment (section 12), prohibits the import of hazardous waste (section 13), requires the handling of hazardous waste (section 14), and regulates air and noise pollution from motor vehicles (section 15). Any action contradictory to sections 11, 12, 13, and 16 results in penalties ranging from fines to imprisonment.
The Pakistan Penal Code (PPC), 1860 also addresses certain aspects of environmental protection, such as voluntarily corrupting or fouling the water to render it unfit for the purpose it ordinarily used (section 277) and making the atmosphere noxious to the health of those living or conducting business in that area (section 278). The penalty for the former is a fine of 1,500 rupees, imprisonment for 3 months, or both. The fine for the latter is only 1,500 rupees. Arguably, the fine is relatively low considering the seriousness of the offense in today’s context and the possible consequences of such offenses on health and the environment.
For the management of forests, the Forest Act 1927, which was adopted by all provinces – except KPK which had its own law i.e. Forest Ordinance, 2002 (recently amended as KPK Forest Amendment Act, 2022) – regulates the reservation of forests by the government (section 3), defines the framework for “protected forests” (sections 29, 30, 32), and makes it an offense to harm the ecosystem of the protected forests and exploiting them in any way (section 33). The more than century-old Fisheries Act, of 1897, and the Exclusive Fishery Zone (Regulation of Fishing) Act of 1975 regulate fishing exploitation internally and in Pakistan’s territorial waters.
In the last decade, Sindh, Balochistan, and KPK have also passed legislations for the protection, preservation, conservation, and management of wildlife and biodiversity e.g. Sindh Wildlife Protection, Preservation, Conservation, and Management Act, 2020, the Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014, and the KPK Wildlife And Biodiversity (Protection, preservation, Conservation and Management) Act, 2015.
These acts not only prohibit the hunting of endangered species and provide a framework for their preservation but also execute obligations under the Convention on International Trade in Endangered Species (CITES) of Wild Fauna and Flora, and the Convention on Migratory Species (CMS). Punjab and Gilgit Baltistan rely on the Punjab Wildlife (Protection, Preservation, Conservation And Management) Act, 1974, and the Northern Areas (Gilgit Baltistan) Wildlife Preservation Act, 1975, respectively. While many provisions resemble those in the Sindh, Balochistan, and KPK acts, they do not implement obligations under the CITES and CMS.
There is an old Elephants’ Preservation Act of 1879 operative in all provinces except for Punjab and ICT. It prohibits the killing and capturing of wild elephants (section 3) unless a license is granted by the Deputy Commissioner (section 5). The penalty for contravening Section 3 is only up to 500 rupees (section 7). The law is largely redundant today, because of provincial wildlife laws, which broadly cover all wildlife animals, including elephants.
Article 9A is likely to strengthen the enforcement of the present legal framework, especially forests, and wildlife laws, since these components directly impact air, and water – the elements that affect the right to a clean, safe, and sustainable environment.
Case Law
The leading precedent that formed the basis for most environment-related petitions until Article 9A was the case of Shehla Zia v. Wapda PLD 1994 Supreme Court 693. The Supreme Court exercised its powers under Article 184(3) to declare the case and address complaints from the citizens of a residential area who complained about the Water and Power Development Authority’s (WAPDA) plans to build a grid station. The citizens were concerned about the effects of the electromagnetic field on their lives.
While no conclusive judgment was given in favor of either party and the National Engineering Services of Pakistan (NESPAK) was appointed as the commissioner to evaluate the merits of WAPDA’s plans and their impact on the rights of the locals, the Supreme Court gave due weightage to the right to a clean and safe environment of the citizens under Article 9 of the constitution, i.e., the right to life and liberty save in accordance with the law.
The term “life” was interpreted widely to include “all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.” Article 14(1) of the constitution, i.e., the right to dignity of man and, subject to law, the privacy of home, was also considered to support the right to a clean and safe environment.
The Importance of Article 9A
Pakistan’s contribution to global carbon emissions is less than 1 percent, and yet the country is increasingly vulnerable to climate change. In the last decade, rampant flooding has affected the lives and livelihoods of many. Only a couple of years ago, in 2022, catastrophic floods were witnessed across the country, with horrific images and videos of destroyed villages, crumbling buildings, and people’s misery, hopelessness, and calls for help circulating on social media.
Reportedly, around 8 million people were displaced, more than 2 million houses were destroyed, with people resorting to relief camps, and more than 1,600 lost their lives. Before that, the Super Floods in 2010 resulted in the loss of more than 1,700 people’s lives because of the flooding caused by heavy rainfall in the Indus. They affected over 20 percent of the land area, more than 20 million people, and caused the loss of billions of dollars through damages to infrastructure, housing, agriculture, livestock, and other family assets.
These natural disasters are not only resulting in the loss of human resources but also costing Pakistan economically. As an agriculture-dependent country, it makes sense to finally address environmental concerns through constitutional mechanisms to protect its natural resources.
Another major factor is the emergence of air quality as a public health emergency in Pakistan, resulting in an estimated 128,000 deaths due to air pollution illnesses. Lahore, the capital city of Punjab, is one of the most polluted cities in the world. Moreover, Article 9 already formed the basis for the right to a clean and safe environment. Article 9A only solidifies and exclusively acknowledges the fundamental right, laying clear constitutional grounds for judicial enforcement.
How Is the Judiciary Likely to Interpret Article 9A?
The Shehla Zia v. WAPDA case evidences the judiciary’s broad approach to environmental concerns. With Article 9A serving as the constitutional basis for environmental litigation, it is almost certain that the courts will broaden the ambit of the article to accommodate environmental rights.
In doing so, the courts will likely incline towards ordering precautionary measures to prevent harmful impacts on the environment and those vulnerable to it. However, in cases involving industrialization, such as the Shehla Zia case, the courts will not negate the prospect of economic development. Hence, the cases will be decided by balancing environmental rights and the prospect of economic development.
The Prospect of Judicial Activism
The amendment takes away the Supreme Court’s suo moto powers previously granted by Article 184(3). This limits the Supreme Court’s powers to initiate cases concerning matters of public importance or fundamental rights. This change shall also alter the course of environmental litigation on the judicial front, as the court has a history of judicial activism pursuant to Article 184(3), i.e., Shehla Zia v. WAPDA. The court henceforth can only hear cases of public importance and fundamental rights, and no longer has the authority to make its own declaration.
Conclusive Thoughts
Article 9A is a big step in the right direction for a climate-vulnerable country like Pakistan. The article will most certainly accommodate vulnerable groups often faced with scarcity and neglect in the presence of a reasonable legal framework and case law to support climate petitions. Even though constitutional changes shall restrict judicial activism, it doesn’t hinder the prospect of environmental litigation.
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Noorulain Shaikh graduated with an LLB (Hons.) degree from the University of London. She is keen on geographical, sociopolitical, and legal aspects of world affairs. She is a published author of articles concerning international law and regional policy affairs.