- The approach of resolving issues through Commencement of Commissions.
CONCLUSION
- Welcome alternative to adversarial & contentious approach by Pakistan's Courts.
- Establishment of Commissions recommends a line of action for Courts in the best interest of public good.
"Shehla Zia has been of enormous imporatnce to efforts of environmentalists to provide a safe & healthy quality of life to our country. This candle lit in1994, its glow continues to radiate hope in the years ahead." Dr Parvez Hassan
- Shehla Zia case has enabled many environmental initiatives in the country.
- Numerous petitions are being filed in the Provincial High Courts on the basis of holding in Shehla Zia that environmental rights are included in the fundamental rights guaranteed by the Constitution.
- City District v M. Yusuf (2002), petitioners sought an environmentally appropriate solid waste disposal in Mahmood Booti Lahore.
- LHC appointed a Solid Waste Management Commission to look into the grievances of petitioners & review the suitability of solid waste disposal measures.
- Commission comprised of Government officials, city administators, academics & scientists, parliamentarians, specialists, environmentalists & members of civil society.
- Shehla Zia had also enabled a direct petition before SC & Sindh HC at Karachi in respect of oil spill disaster in August 2003.
Shehla Zia has been cited with approval in many cases in the Supreme Court & in the courts below.
- In General Secretary Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director, Industries & Mineral Development, Punjab, Lahore. Supreme Court, citing Shehla Zia, stated that, "The right to have unpolluted water is the right of every person wherever he lives."
- In this case, Supreme Court echoed the effects of the Shehla Zia case:
1) A 5 member commission was again constituted headed by Dr. Parvez Hassan to inspect the stream & reservoir supplying the Khewra region to ensure that clean water is supplied to public.
2) It also conducted hearings involving the parties to the case,
mine operators & members of the general public in the area.
Supreme Court states,"What the lawmakers & the executive leadership of the country were not able to do over the course of several decades, judiciary of Pakistan was able to start with a single decision."
- Constitution of India for example imposes a constitutional duty to protect the environment on the State.
- In Pakistan's Constitution of 1973, no specific reference to environmental protection either as a fundamental right or as a principle of policy.
- Another major aspect of the case was the appointment of a commission to evaluate the technical aspect of the subjects of the dispute before the Court. Courts generally decide cases based on evidences, but in Shehla Zia case, different approach was taken to evaluate every side of the case.
- In absence of such provisions, Shehla Zia may have seemed an impossible challenge. But there were several precedents from India to be relied on.
- The most important result of Shehla Zia case was the recognition to involve public participation in decision-making. The court ordered that in future WAPDA will not construct a high voltage grid station anywhere in Pakistan without including full public participation before a final decision.
- In addition to Article 9 (right to life) in Pakistan's Constituition, it also guarnatees right to dignity under Article 14. Courts usually follow their own precedents but fortunately in Shehla Zia Case, it was accepted that right to healthy environment is also a right.
SHEHLA ZIA CASE AS A PRECEDENT
The results in Shehla Zia was beyond the expectations of the petitioners and even its counsel. Supreme Court had laid down law to be followed by all the Courts in Pakistan. Shehla Zia has attracted great deal of international attention and comment:
Supreme Court Bench (Shehla Zia Case):
1) Included in UNEP/UNDP Compendium of Judicial Decisions on Matters Related to Environment in 1998. 2) Included in a recommended syllabus for law schools of the Asian Pacific region in:
- Asian Development Bank
- Capacity Building for Environmental Law in the Asia &
Pacific Region: Approaches & Resources (2002)
Justice Saleem Akhtar
Justice Manzoor Hussain Sial
Chief Justice Mr. Nasim Hassan Shah
What was Shehla Zia Case?
- In 1994, a unique petition was presented in SC of Pakistan, some residents of Islamabad had approached it against the construction of high voltage grid station by WAPDA in a residential area. Residents of this neighborhood, led by Ms. Shehla Zia claimed that the electric magnetic radiation of grid station would likely be harmful for the health of the residents.
- Extraordinary aspect was that this case sought the jurisdiction directly of the SC under Article 184(3) of the Constitution:
'Article 184(3)' states, "Without prejudice to the provisions of Article 199, the SC shall, if it considers that question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
- The second extraordinary aspect was that the case claimed a right to a clean environment when the Constitution did not in any manner provide for such fundamental right.
- SC declared that fundamental rights to life and dignity guaranteed by Constitution, in fact, include the right to a clean and healthy environment.
- After 10 years in 2004, Dr. Parvez Hassan (Advocate & President of PELA) in First Annual Seminar of Pakistan Environmental Law Association addressed the importance of this case. He got the privilege of being the counsel to the petitioners in Shehla Zia case.
- Plausible reason for the favourable ruling in Shehla Zia case was that the time had come for the courts to protect people of Pakistan from increasing degredation of environment.
- UN Conference on the Human Environment, held in Stockholm in 1972, stressed the need to internationalize concerns for resource management and environmental protection. It proclaimed that natural resources such as air, water, land, flora and fauna must be safeguarded for the present and future generations.
- SC was exceptionally influenced from international developments in this field (Stockholm Declaration 1972, World Charter for Nature by UN 1982, Rio Declaration on Environment & Development by UN 1992).
- It was because of the Stockholm Declaration that nations started making commitments to environmental protection in their constitutions adopted or amended after 1972.
- Declarations, unlike treaties, are usually taken to mean "soft law" and are not formally signed. But for the first time, in Shehla Zia case, the SC gave recognition to an international declaration, & applied its provisions as a binding force.
SHEHLA ZIA CASE (A GAME CHANGER):
- Courts readily accepted the submissions of these declarations, and said that it commanded respect as a major international treaty of broad reaching significance for human progess.
- Supreme Court adopted & applied "precautionary principle" of Rio Declaration 1992 which states that scientific uncertainty is not to be used as a basis of moving forward with a proposed activity. Residents in Shehla Zia case claimed that the construction of high voltage grid station in Islamabad might endanger their health and safety, but there was no certainty that this would happen. While extensive scientific literature was provided to show the likely harm, the respondent also provided equally impressive scientific documentation to prove that there would be no harm. Supreme Court acted on the "precautionary principle" to prevent WAPDA from contructing the grid station.
- Court stated that energy needs of third world country cannot be a justification for injurious projects:
"One cannot ignore that energy is essential for present-day life, industry & commerce. The more energy is poduced, the more progress & economic development become possible. Therefore a method should be devised
to strike balance between economic progress & to minimize possible hazards."