Securing Environmental Rights Through Public Interest Litigation in South Asia
By Dr. Parvez Hassan and Azim Azfar
INTRODUCTION
Almost a decade ago the Supreme Court of Pakistan delivered its landmark decision in Shehla Zia v. WAPDA, in which it held that the right to life guaranteed by Article 9 of the Constitution of Pakistan included the right to a healthy environment. By means of this decision, the Supreme Court accorded environmental rights the highest status in Pakistani law--that of constitutional legitimacy. Such legitimacy is, of course, coveted not for its legal consequence alone, but also for what it represents--an almost sacred imperative that articulates the most fundamental values of a society.
Important as the result in this case was to the petitioners, the sense of accomplishment and hope that it generated was not tied to the outcome of the particular petition but to the expectation that a ripple effect may arise through the doctrine of precedent. After all, historic cases matter because they change the hierarchy of legal rules and set up default principles that apply to all future matters that come within its domain. The co-author of this article, Dr. Parvez Hassan was the counsel to the petitioners in this case and can convey the deep satisfaction felt by conservationists and human rights campaigners who realized that an important victory for public interest litigation in Pakistan had been realized. The value of the result in Shehla Zia can be better appreciated when it is borne in mind that the Constitution of Pakistan makes no specific mention of environmental rights. A protection of environmental rights can only be read into the document through a process of interpretation that regards the wide language of fundamental rights not as a mechanism for fossilizing the law, but as living tissue from which legal principles can be created in order to meet the needs of an evolving society. It is precisely this innovative model of rule formulation that was achieved in the Shehla Zia case.
This broad and progressive approach to environmental concerns is shared by courts in India and the entire South Asian region. Indeed, as noted by many commentators, the South Asian judiciary leads the world in its role as guarantor of the legal protection of sustainable development. This leadership is not limited to the field of substantive rights. Such leadership is also evidenced by an equally robust approach to dispensing with procedural constraints that may prevent access to the courts. The twin hallmarks of this judicial approach are thus an ecological sensitivity and a willingness to build bridges whereby all citizens, and not just the strong, may approach the courts for vindication of their rights. In the words of Nicholas Robinson, “we see [in South Asia] that the quest for sustainable development is part and parcel of the judiciary's older quest, the pursuit of justice.”
It is important to tell the story of this quest, since the pursuit of justice is not limited to the judges and lawyers and concerned parties who participate in the process by which judicial recognition is given to legal rights. The wider community, including civic-minded people from different walks of life, must be informed of legal developments in order to ensure that these benefits percolate through all strata of society. It may be added that, because environmental law has global dimensions by its very nature, it is vitally important to share the lessons of South Asian environmental jurisprudence with the whole world. Such an endeavor can make strides in attempting to ensure that the emerging science of environmental law receives all the benefits of cross-fertilization that a comparative approach to the law can foster.
It would not be improper to mention the stakes involved in the common enterprise to nurture the growth of environmental law. At the time of the United Nations Stockholm Conference of 1972, there were only three dozen environmental treaties in the field. Today there exist more than nine hundred international environmental law instruments. Still, an expanding dossier of legal documents should be no cause for complacency. As Edith Brown-Weiss notes:
[I]nternational environmental law is in transition. While it is expanding rapidly in scope and coverage, we are nonetheless still developing the intellectual framework and defining the contours of the subject. We have made enormous progress in the last two decades. . . . How we manage these directions will have important implications not only for sustainable development and the robustness of the human environment, but also for the international legal order in the decades to come.
Almost a decade ago the Supreme Court of Pakistan delivered its landmark decision in Shehla Zia v. WAPDA, in which it held that the right to life guaranteed by Article 9 of the Constitution of Pakistan included the right to a healthy environment. By means of this decision, the Supreme Court accorded environmental rights the highest status in Pakistani law--that of constitutional legitimacy. Such legitimacy is, of course, coveted not for its legal consequence alone, but also for what it represents--an almost sacred imperative that articulates the most fundamental values of a society.
Important as the result in this case was to the petitioners, the sense of accomplishment and hope that it generated was not tied to the outcome of the particular petition but to the expectation that a ripple effect may arise through the doctrine of precedent. After all, historic cases matter because they change the hierarchy of legal rules and set up default principles that apply to all future matters that come within its domain. The co-author of this article, Dr. Parvez Hassan was the counsel to the petitioners in this case and can convey the deep satisfaction felt by conservationists and human rights campaigners who realized that an important victory for public interest litigation in Pakistan had been realized. The value of the result in Shehla Zia can be better appreciated when it is borne in mind that the Constitution of Pakistan makes no specific mention of environmental rights. A protection of environmental rights can only be read into the document through a process of interpretation that regards the wide language of fundamental rights not as a mechanism for fossilizing the law, but as living tissue from which legal principles can be created in order to meet the needs of an evolving society. It is precisely this innovative model of rule formulation that was achieved in the Shehla Zia case.
This broad and progressive approach to environmental concerns is shared by courts in India and the entire South Asian region. Indeed, as noted by many commentators, the South Asian judiciary leads the world in its role as guarantor of the legal protection of sustainable development. This leadership is not limited to the field of substantive rights. Such leadership is also evidenced by an equally robust approach to dispensing with procedural constraints that may prevent access to the courts. The twin hallmarks of this judicial approach are thus an ecological sensitivity and a willingness to build bridges whereby all citizens, and not just the strong, may approach the courts for vindication of their rights. In the words of Nicholas Robinson, “we see [in South Asia] that the quest for sustainable development is part and parcel of the judiciary's older quest, the pursuit of justice.”
It is important to tell the story of this quest, since the pursuit of justice is not limited to the judges and lawyers and concerned parties who participate in the process by which judicial recognition is given to legal rights. The wider community, including civic-minded people from different walks of life, must be informed of legal developments in order to ensure that these benefits percolate through all strata of society. It may be added that, because environmental law has global dimensions by its very nature, it is vitally important to share the lessons of South Asian environmental jurisprudence with the whole world. Such an endeavor can make strides in attempting to ensure that the emerging science of environmental law receives all the benefits of cross-fertilization that a comparative approach to the law can foster.
It would not be improper to mention the stakes involved in the common enterprise to nurture the growth of environmental law. At the time of the United Nations Stockholm Conference of 1972, there were only three dozen environmental treaties in the field. Today there exist more than nine hundred international environmental law instruments. Still, an expanding dossier of legal documents should be no cause for complacency. As Edith Brown-Weiss notes:
[I]nternational environmental law is in transition. While it is expanding rapidly in scope and coverage, we are nonetheless still developing the intellectual framework and defining the contours of the subject. We have made enormous progress in the last two decades. . . . How we manage these directions will have important implications not only for sustainable development and the robustness of the human environment, but also for the international legal order in the decades to come.
