THE suo motu reviews of the activities of the Islamabad Capital Development Authority are concerned with comparatively small projects and potential environmental impacts. In three suo motu cases, however, the Supreme Court reviewed substantial development projects and large-scale environmental pollution. The first of these cases involved the plans of the Lahore Development Authority to cut down a number of trees in Lahore in order to construct additional roads meant to accommodate the ever-increasing amount of traffic of the provincial capital of Punjab.

Suo Motu Case No. 25, decided in September 2011, must be regarded as one of the most imaginative and thoughtful cases concerned with environmental issues since the Shehla Zia judgement of 1994. The case was initiated by an NGO, Lahore Bachao Tehrik, formed in 2006 to protest against plans of the Lahore Development Authority to widen a road alongside a canal running through the city. The construction of additional lanes was meant to ease traffic congestion but would have entailed the loss of trees planted along both sides of the canal. In a detailed and innovative set of proceedings, the Supreme Court abandoned an adversarial approach altogether and invited the parties to agree to a process of mediation. The mediation committee, headed by the well-known environmental activist and expert Dr Pervez Hassan, issued a report with a number of recommendations.

The Supreme Court held that the parties, having agreed to the mediation, were bound by them and in a second step, examined whether the recommendations of the mediation committee were legally sound and as a matter of law capable of being implemented. In a systematic fashion, the Supreme Court first found that Canal Road Project did not violate the Environmental Protection Act because the Lahore Development Authority had complied with all procedural requirements, including the commissioning of an environmental impact assessment and inviting the public to participate in the decision-making process.

Further, the project did not violate the fundamental right to life under Article 9 of the Constitution, nor did it violate the precautionary principle of ecological protection nor the doctrine of public trust. Instead, the Supreme Court found that the Canal Road Project was in consonance with the concept of sustainable urban development and that as a result all parties were bound by the recommendations of the mediation committee.

The Supreme Court’s decision must be regarded as master class in striking a balance between judicial activism and restraint. In accepting the issue for hearing, the Supreme Court could have been tempted to issue detailed directions on the merits of the project. Instead, it combined mediation with a thorough examination of the legal conditions that had to be met before the project could go ahead. Explaining the concept of judicial restraint the Supreme Court observed that:

“Many a time, policies/actions of executive authorities are challenged and issues are brought before the Court which have socio-political or economic dimensions; issues of lopsided policies being pursued, issues which have polarised the nation, issues which have bled and divided the nation and issues which reflect immoral or unwise use of public funds. Judges are humans. It is painful to sit back and watch the successive marches of folly. However, the Constitutional constraint reflected in the trichotomy of powers obliges the Court to observe judicial restraint. It intervenes only when the policy/action of the State authority reflects violation of any law or a Constitutional provision or when it relates to the enforcement of a Fundamental Right which inter alia includes Environmental Human Rights. The people/Constitution makers did not vest this Court to sit over judgment on a purely policy decision taken by the competent executive authority unless of course it violates the law of the land.”

The second case concerned with the potential impact of a large scale development on the environment is Suo Motu Case No. 10 of 2005. The matter came to the attention of the Supreme Court in the form of a report of the IUCN, an international environmental NGO, highlighting the environmental risks inherent in a plan to develop parts of the Murree hills. The Supreme Court commenced hearings in 2005, ordering the government of Punjab to supply further and better particulars of the proposed scheme and its compliance with the Environment Protection Act, 1997.

By the time of the second hearing, the Punjab government had abandoned the project, and declared several areas of the Murree hills as “environmentally sensitive areas”. As a result, no further order had to be made but the Supreme Court observed by way of obiter dicta that:

“It is noteworthy that all over the world national parks are developed to preserve flora and fauna facing threat of extinction in the wake of modern-day-life development projects including mushroom growth of housing projects, recreational facilities, etc. The need is to sensitise the general public to the fundamentals of sustainable development so as to achieve the goal of a healthy environment, not only for the present population, but also for the future generations. The concerned agencies of the Government, including Environmental Protection Agencies at different levels have a heavy onus to discharge in this regard. The Government of the Punjab, considering the environmental hazard posed by the New Murree Development Project, has taken a right decision in disbanding the same.” Most recently, the Supreme Court decided Suo Motu Case No. 10 of 2010, a case concerned with the contamination and pollution of a large lake in the interior of Sindh, the Mancher Lake. In accepting the matter as one of public importance and as involving the breach of the fundamental right to life, the Supreme Court referred to Shehla Zia, observing that:

“Prima facie, the case was considered for enforcement of fundamental rights of considerable number of persons which statedly run into thousands, who being fishermen were living in and around Mancher Lake and their lives were threatened on account of contamination of water in Mancher Lake and due to which they were also deprived of their livelihood, therefore, Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 is attracted, implication of which has already been examined by this Court in Shehla Zia and others v WAPDA.”

The judgement indicates that the pollution of the lake is caused by the in-flow of untreated sewage and contaminated water. The problem is compounded by the reduced in-flow of water into the lake. The hearing of the case was overtaken by the devastating floods of 2010 which replenished the water of Mancher Lake. Following the floods, the concerned authorities reported to the Supreme Court an environmental management plan for Mancher Lake. The Supreme Court held that no further action was required but ordered regular reports on the implementation of the scheme to be submitted to it.

The above excerpt is taken from the chapter, ‘A New Dawn: The Revival of Environmental Law’ by Martin Lau.

Excerpted with permission from The Politics and Jurisprudence of the Chaudhry Court 2005-2013

Edited by Moeen H. Cheema and Ijaz Shafi Gilani

Oxford University Press, Karachi

ISBN 9780199400331

396pp.