HEALTHY ENVIRONMENT AS A FUNDAMENTAL RIGHT A STEP FORWARD OR A SUPERFICIAL MOVE?

HEALTHY ENVIRONMENT AS A FUNDAMENTAL RIGHT A STEP FORWARD OR A SUPERFICIAL MOVE?

The 26th Constitutional Amendment Bill has been passed, incorporating the right to a healthy and clean environment as a fundamental right under Article 9A of the Constitution of Pakistan, amongst various other significant reforms. While this development is a progressive step toward environmental justice, a critical question remains: was this amendment necessary given Pakistan’s existing legal framework? 

The article discusses the point that Pakistan’s judiciary had already included the right to a healthy and clean environment within its jurisprudence, supported by comprehensive environmental legislation. Adding this clause, even with its elevated constitutional status, risks it being ornamental instead of a legitimate amendment. The article further draws a comparative analysis with countries in the Global West to illustrate that enforcement measures are the key to bringing practical change to the environmental situation of the country.

RIGHT TO A HEALTHY AND CLEAN ENVIRONMENT IN THE PAKISTANI LEGAL FRAMEWORK

Many countries consider the right to a healthy and clean environment as separate and independent from the right to life while others have implied its existence within the latter. In Pakistan, the right has been implied within the right to life under Article 9 of the Constitution. This landmark recognition was carried out in the Shehla Zia case where the Supreme Court of Pakistan declared the right to life to be not merely the physical life itself but also embodying the right to a healthy life, thus giving the constitutional provision a broad interpretation. This precedent initiated a wave of expansive interpretations of Article 9 and the subsequent rulings reinforced this approach.

The Salt Mines case is of prominence as it declared the right to clean and unpolluted water to fall under the ambit of the right to life. Similarly, the Balochistan High Court in the Stone Crushing Plants case declared the right to unpolluted air as a constitutional guarantee. The interpretation reached its maximum potential when the Honorable Supreme Court in the Houbara Bustard Case tangentially implied the duty to preserve natural resources and species into the provision, reasoning that the survival of humanity is contingent upon the preservation of natural resources and the protection of species.

On the legislative side, we have the Pakistan Environmental Protection Act of 1997 which governs the issues of environmental pollution, waste disposal, hazardous waste, and ordains for the protection, conservation, rehabilitation, and improvement of the environment through sustainable development. The cases and appeals filed under this statute are heard by the Environmental Tribunals and Magistrates – also established under the Act.

The Ground Reality

The 2024 Environmental Performance Index (EPI) serves as a crucial lens for assessing Pakistan’s progress in implementing environmental laws. This index evaluates and ranks 180 countries based on indicators like climate change performance, environmental health, and ecosystem vitality. These metrics highlight the extent to which a nation’s legal and policy measures address environmental challenges. 

Pakistan’s rank of 179 in this report places it among the poorest performers globally, highlighting severe shortcomings in its environmental management. The dismal situation is largely attributed to the use of harmful fossil fuels, like gas, oil, and coal, to meet their electricity needs, thereby leading to a sharp increase in greenhouse gas (GHG) emissions and deteriorating air quality. Other factors contributing to the abysmal ranking of the country include unprecedented floods, widespread water pollution, and inefficient waste disposal practices. 

When contrasting these troubling realities with Pakistan’s existing legal and judicial framework, it becomes evident that the latter two are theoretically sound and adequately designed to address climate change and environmental concerns. However, the real issue lies in the lack of effective enforcement, where the country is continuously falling short despite the introduction of advanced plans and policies. Thus, addressing the elephant in the room, i.e. filling in the enforcement lacunas, would help in delivering the intended relief to the citizens of Pakistan rather than recycling laws that already exist.

IMPLEMENTATION OF ENVIRONMENTAL LAWS: LESSONS FROM THE GLOBAL WEST

Countries like the United States of America and the United Kingdom do not explicitly enshrine the right to a healthy and clean environment in their constitutions. However, their well-established environmental laws and policies effectively address key environmental concerns, demonstrating that constitutional recognition is not the only path to meaningful progress. This section will present a brief overview of the environmental legislations, precedents, and policies enacted by these countries and how they fare in the EPI.

United States

The United States legal framework has shown reluctance to enact an explicit constitutional provision for the right to a healthy and clean environment, as evident in the Juliana climate litigation case. In this case, the court ruled that the plaintiffs lacked standing to argue that the constitutional rights to life and liberty should extend to a stable environment. While the ruling in favor of the plaintiffs would have marked a progressive step for the environmental law, the opposite is not an issue since the country’s legislative framework compensates through landmark statutes. One such statute is the Clean Air Act of 1970 which has significantly reduced pollution caused by vehicle emissions as a result of robust enforcement by the Environmental Protection Agency. 

More recently, the Inflation Reduction Act of 2022 has introduced tax incentives for climate-smart projects and clean energy provisions. The legislation has currently met 3 out of 10 designated targets, resulting in a 6.4% reduction in GHG emissions since 2022. Although the efforts are not sufficient since the EPI shows the United States to be at a staggering rank of 34 – falling back significantly from its peers in the Global West such as the UK, Canada, and Switzerland – the achievement is important as it illustrates the importance of implementing the laws.

United Kingdom

The United Kingdom also lacks explicit constitutional or legislative recognition of the right to a healthy and clean environment. Nevertheless, the Environment Act of 2021 has provided a comprehensive legal framework, setting binding environmental targets under its Environmental Improvement Plan. The Office for Environmental Protection, tasked with monitoring these targets, found in the report for the year 2022-2023 that the government is on track with only 4 targets from the 40 independent environmental targets (including the legally binding ones under the Environmental Act), but the overall framework remains effective. Progress on goals like clean air and hazard reduction has been notable, with marine protected areas established across 30% of the country’s territorial waters. Consequently, the United Kingdom ranks 5th on the EPI, demonstrating the efficacy of strong legislative and institutional mechanisms.

MOVING BEYOND SYMBOLISM: IMPLICATIONS FOR PAKISTAN

While the comparison between the US and the UK is unrealistic due to the vast economic parity between the two developed countries and Pakistan, the case studies nonetheless highlight a critical lesson: achieving environmental progress depends more on enforcement and practical policies than the reiteration of similar legal guarantees. A separate constitutional right might not make a difference, but legislating for practical solutions would surely pave the way for economic and environmental betterment.  

Pakistan’s rank on the EPI highlights the country’s enforcement failures. Unlike the United Kingdom, where enforcement agencies like the Office for Environmental Protection ensure accountability, or the United States, where the Environmental Protection Agency ensures the implementation of legislation, Pakistan struggles with weak implementation of its Pakistan Environmental Protection Act of 1997. The Environmental Tribunals and Magistrates established under the Pakistan Environmental Protection Act of 1997 remain underutilized, due to which laws addressing climate change and pollution remain largely ineffective. Hence, without a concerted effort to reform these institutions and improve enforcement, the amendment risks being a mere symbolic gesture, offering no tangible environmental benefits.

CONCLUSION

The 26th Constitutional Amendment in Pakistan elevates the right to a healthy and clean environment to the status of a fundamental right, marking a progressive step toward environmental justice. However, it also raises important questions about the necessity of such a change. 

The blog is of the opinion that Pakistan already possesses a legal framework, including judicial precedents and legislation, that safeguards the environment and, therefore, does not require any further laws. Rather, the real challenge lies in bridging the gap between legislation and implementation, something which is particularly evidenced by Pakistan’s ranking on the EPI. 

The opinion is further strengthened through the comparative analysis of countries like the United States and the United Kingdom where improvements in the environmental situation have been brought through practical enforcement rather than mere formal recognition or reiteration of laws. The key lesson for Pakistan is that its focus should be on strengthening its enforcement apparatus in order to improve its global standing in sustainability and environmental preservation practices.