Development of Environmental Laws and Jurisprudence in Pakistan. Irum Ahsan

      

       Law, Justice, and Development Program, Office of the General Counsel

      Development of

      Environmental Laws

      and Jurisprudence

      in Pakistan

       Irum Ahsan and Saima Amin Khawaja

      © 2013 Asian Development Bank

      All rights reserved. Published in 2013.

      Printed in the Philippines.

      ISBN 978-92-9254-310-5 (Print), 978-92-9254-311-2

      Publication Stock No. RPT135573

      Cataloging-In-Publication Data

      Irum Ahsan and Saima Amin Khawaja.

       Development of environmental law and jurisprudence in Pakistan.

      Mandaluyong City, Philippines: Asian Development Bank, 2013.

      1. Environmental law 2. Pakistan. I. Asian Development Bank.

      The views expressed in this publication are those of the authors and do not necessarily reflect the views and policies of the Asian Development Bank (ADB) or its Board of Governors or the governments they represent.

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      Preface

      In South Asia, challenges related to land degradation and desertification, biodiversity loss, water depletion and degradation, solid waste management, air quality degradation, environment-related health issues, degradation and depletion of coastal and marine resources, and the impacts of natural disasters are just some of the most important environmental consequences resulting from unsustainable development.

      The adoption of environmental laws and regulatory frameworks since the 1970s has helped to slow these impacts, but by no means do they address the impacts adequately. Many environmental challenges are insufficiently reflected or absent in policies and frameworks. Where international principles and laws have been adopted by many countries, they often have not been translated into national, provincial, and local implementation rules and regulations. Furthermore, implementation, enforcement, and compliance are often weak, owing to a range of capacity and other challenges.

      Access to environmental justice also remains a challenge. Although this is internationally recognized as a principle of good governance and of critical importance to the rule of law and sustainable development, justice remains inaccessible in a number of countries. The Office of the General Counsel at the Asian Development Bank (ADB), under one of its regional technical assistance projects, has worked with the judiciary of Pakistan and prepared this report to review the state of the country’s environmental laws, adjudication, and implementation.

      This report reviews the provincial environmental protection acts of Pakistan with special emphasis on the institutional design, principles, and procedures provided under the law. It further examines the actual implementation of the law and the case law developed in this area with focus on the court’s interpretation and enforcement of the laws. Additionally, the report reviews the current curriculum of law schools and judicial academies and suggests the inclusion of environmental laws in their respective programs in future.

      The authors would like to thank those who spared their time for interviews and provided assistance and support in making this work possible. Appreciation must be given to environmental lawyer Nusrat Jahan Nabeela for her constant support in collection of data and writing of the report. We would also like to acknowledge the Punjab Environment Protection Agency for providing information and procedural details about the implementation and enforcement of environmental laws in Pakistan, and the Judicial Academy for information about the extent of judicial training in environmental laws. We extend special appreciation to retired justice Tanveer Ahmad Khan, Director General, Punjab Judicial Academy; and Naseem-ur-Rehman, Deputy Director, Environmental Impact Assessment, Punjab Environment Protection Agency.

      Background on the Development of Environmental Laws and Other Initiatives in Pakistan

      The Ministry of Environment was established in Pakistan in 1975 as a follow-up to the Stockholm Declaration of 1972. Under the Constitution of the Islamic Republic of Pakistan, 1973, both the federal and provincial legislatures had the power to make laws on the environment until 2010.¹ The ministry proposed and drafted the first consolidated environmental law, the Pakistan Environmental Protection Ordinance, 1983 (PEPO). As federal legislation, the main objective of PEPO was to establish institutions, i.e., the Pakistan Environmental Protection Council (PEPC), headed by the President of Pakistan, as the supreme environmental policy-making body in the country; the Pakistan Environmental Protection Agency (EPA) at the federal level; and four environmental protection agencies at the provincial level to administer and implement the provisions of PEPO. PEPO only provided an institutional structure for enforcement and the protection of the environment, without comprehensive provisions for regulation of land use; air, water, or noise pollution; marine pollution; biodiversity; or hazardous substances or activities.

      In 1992, Pakistan participated in the Earth Summit and became a party to various international conventions. This accelerated the process of environmental lawmaking in the country. In the same year, Pakistan prepared the National Conservation Strategy (NCS). The NCS provided a broad framework for addressing environmental concerns in the country. In 1993, the first National Environmental Quality Standards (NEQS) were notified under PEPO, providing standards for industrial and municipal effluent and air emissions, including 32 liquid and 16 gaseous parameters.

      The Pakistan Environmental Protection Act, 1997 (PEPA) replaced the earlier legislation, PEPO, in an effort to bridge gaps in the law.

      After the 18th Amendment, Punjab adopted the Punjab Environmental Protection (Amendment) Act, 2012 (Punjab Act)² with minor changes, while Balochistan passed the Balochistan Environmental Protection Act, 2012 (Balochistan Act).³ The Balochistan Act has made some significant additions to PEPA, while Khyber Pakhtunkhwa (KPK) and Sindh are in the process of drafting new provincial laws for the environment. Until the promulgation of the provincial environmental laws in KPK and Sindh, the original structure provided under PEPA, detailed below, shall continue. As the 18th amendment does not provide any specific timelines and cutoff dates for the transition, the promulgation of provincial laws will be left to the initiative of each provincial assembly.

      In 2011, the Asian Development