“Senior Civil Judges designated as environmental protection magistrates”
Altaf Hamid Rao,
MIRPUR (AJK): Chief Justice of Azad Jammu Kashmir High Court Justice M. Tabassum Aftab Alvi has emphasized the need of performance of due collective role of all the stake holders including the judiciary to ensure the absolutely pollution-free environment through the strict execution of the related laws the world over.
He was speaking at the day-long 1st judicial conference on environmental justice titled “State of Environment and Environmental Laws in AJK”, held under the auspices of the state-run Environmental Protection Agency of Azad Jammu Kashmir at the AJK State’s metropolis on Saturday.
The CJ of AJK HC also called for individual and collective efforts by the all the stake holder institutions to move with concerted efforts for putting their joint wisdom to encounter the current challenge to humanity, related to the environment – the challenge extremely alarming to the whole universe in proportions, as well as, in dimensions, he observed.
Justice Sardar Muhammad Shamim Khan, Senior Judge of the Lahore High Court, Justice Muhammad Farrukh Irfan Khan, Judge of the Lahore High Court, Chairman Environmental Tribunal AJK Justice Sadaqat Hussain Raja, Additional Chief Secretary (Development) and Secretary environment of AJK Dr. Syed Asif Hussain and Director General Environmental Protection Agency of Azad Jammu Kashmir Govt. Raja Muhammad Razaq Mehmood Akhtar Cheema, Country Representative, IUCN PAKISTAN; Brig Akhtar Hussain Shah DG KASHMIR INSTITUTE OF MANAGEMENT Abuzar Salman Khan Niazi Advocate Lahore High also addressed the conference and highlighted the significance of holding of the moot.
Judges of superior and subordinate judiciary including Districts & Sessions Judges, Senior Civil Judges and Civil Judges from across AJK, Vice Chairman AJK Bar Council, Additional Chief Secretary, (General) AJK Farhat Ali Mir, Country Representative of IUCN in Pakistan Mahmood Akhter Cheema, Director General, Kashmir Institute of Management (KIM) Brig. (Retd) Syed Akhter Hussain Shah and other high ranking officials of the AJK government as well as official and non official members of the high power AJK Environment Protection Council including Mr. Arslan Anjum, Country Director of MUSLIM HANDS in AJK also attended the conference.
“The discussions in the moot depict that the role of the Courts has been important in the protection of environment”, he said .
“It is also noted with regard to environmental protection, lack of sufficient interest shown by the Legislature and the Executive has necessitated the judicial intervention in this domain”, Justice Alvi underlined.
In his detailed addressed to the conference, the Chief Justice of Azad Jammu Kashmir High Court Justice M. Tabassam Aftab Alvi referred to the challenges being faced by the environment and its disastrous effects on the human and other lives coupled with special emphasis to successfully combat these challenges with concerted efforts by all the stake holders as saying “It is a matter of great honor for me to well come the eminent personalities and the luminaries of the justice sector and other stakeholders, particularly the Hon’ble Judges of the Lahore High Court, Lahore, who, very graciously accepted my invitation and are participating in this Judicial Conference on Environmental Justice, organized by the Environmental Protection Agency of Azad Jammu and Kashmir, for putting their joint wisdom on the latest challenge to humanity —– a challenge extremely alarming the whole universe in proportions, as well as, in dimensions”. ? Justice Alvi said “As you are well aware that in developing countries like Bangladesh, India, Pakistan and Sri Lanka, important areas were:
?(1) Sovereignty over natural wealth and resources; (2) Right to development; (3) Eradication of poverty; (4) Consumption pattern of the North; (5) Capacity building; (6) Waste trade; (7) Transfer of resources, and (8) Transfer of technology etc”.
?“But the developed countries, on the other hand, sought focus on population stabilization, forests, intellectual property rights, and good governance”, he observed.
Referring to the constitutional provisions of some South Asian countries on the subject Justice Alvi pointed out that in Bangladesh, through an amendment made in Art 18, in 2011, in the Constitution of Bangladesh it provides that”The State shall endeavor to protect and improve the environment and to preserve and safeguard the natural resources, bio-diversity, wetlands, forests and wild life for the present and future citizens”.
The Constitution of Afghanistan has a more general commitment, stating that “The State shall be obligated to adopt necessary measures to protect and improve forests as well as the living environment”.
?Article 16 of the Interim Constitution of Nepal provides for the rights regarding environment and health in the following terms:
“(1) Every person has the right to live in a clean environment.
(2) Every citizen shall have the right to basic health services free of cost from the State as provided for in the law”.
?Referring to the Indian Constitution, he underline that through an amendment in 1976, the Indian constitution provides that “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”.
?Similarly, Article 27(1) of the Sri Lankan Constitution provides that: “The State shall protect, preserve and improve the environment/or the benefit of the community”.
He pointed out that on the other hand, Pakistan and Azad Jammu Kashmir have the weakest response to environmental challenges in their Constitutions.
?Justice M. Tabassam Aftab Alvi continued that the environmental question has become of urgent and vital importance. We must realize that unless the damage caused by the massive interference of men into the environment is not controlled and arrested, not only men’s’ quality of life will deteriorate gravely, but also the survival of humanity will itself be in danger, he said.
He emphasized that in order to control the shrinking of forests and regulate their use, the Jammu and Kashmir Forest Regulation Act, 1930, was enacted by the British Government. This statute sought to “consolidate the law relating to forest, the transit of forest produce and the duty levy-able on timber and other forest produce”.
?The Chief Justice of AJK High Court stated that the Jammu and Kashmir Forest Regulation Act, 1930, empowers the Government to set apart forest reserves, appoint officers charged with the management of those territories, enforce rules governing the use of forest, and determine the degree to which timber and other products may be exploited. Moreover, the Act authorizes the Government to punish violators of the stipulations contained therein. The AJK Plantation and Maintenance of Trees Act, 1977, was enacted by the AJK Government. Through the aforesaid Act, it is mandatory for an occupier to plant and maintain, at least three trees, per acre. If occupier fails to do such the required number of trees, shall be planted in his land by the Forest Department without any let or maintenance of the trees so planted. The 1962 Goats Restriction: Act recognizes the damage incurred by limitless grazing of Goats. Accordingly, the Government has been empowered to limit the number of goats in the State and to regulate their movement. More recently, the Punjab Firewood and Charcoal (Restriction) Act of 1964, also limits the burning of Firewood and Charcoal.
In addition to sectoral laws, the Pakistan Environmental Protection Act, 1997, which replaced the earlier Pakistan Environmental Protection Ordinance, 1983, was the far reaching framework legislation on the environment. Similarly, Azad Jammu and Kashmir Environmental Protection Act, 2000, was enforced in AJ&K. The Act Supra further established a high-powered Azad Jammu & Kashmir Environmental Protection Council headed, by the Prime Minister of Azad Jammu & Kashmir ‘with wide policy-making powers. The implementation of policy is the responsibility of the Environmental Protection Agency (EPA). This Act is a complete statute which contains a mechanism to control environmental pollution. The Act empowers the Government “to take measures for protecting and improving the quality of environment and to prevent, control and abate the pollution”. It further empowers the Government “to lay down standards for quality of environment, emission or discharge of environmental pollutions to regulate industrial locations, to prescribe procedure for managing hazardous substances and to collect and disseminate information regarding environmental pollution”. Section 16 of the supra Act provides that “any contravention of the provisions of this Act, Rules, Orders or Directions made there-under, is punishable with imprisonment for a term which may extend to two years or with fine up to one million rupees or with both”, Justice Ali referred to.
?He said that although, we have legislation which deals with environmental issues, yet a positive attitude on the part of everyone in the society is essential for effective and efficient enforcement of the Statute.
He said “The Act, 2000, supported by Rules, provides “the establishment of Environmental Tribunals and Environmental Magistrates”. The growing importance of the subject was accepted in providing special Courts for the specific and exclusive purpose of dealing with environmental matters. This was to comfort against the long list of cases in ordinary courts and the delays in their decisions. I would suggest the Magistrates and concerned CivilCourts that when a case comes before them they must see importance of it before entertaining the same or granting any stay order in ordinary manner”.
The most significant provision of the Azad Jammu & Kashmir Environmental Protection Act, 2000, is Section 11, which provides for “the submission of an Initial Environment Examination or Environmental Impact Statement to the Agency by every person setting up an industrial project and has obtained from the Agency approval in respect thereof”, he said
The Government, under Sec 19(1) of the Act, 2000, is empowered “to establish an Environmental Tribunal. The Environmental Tribunal shall consist of a Chairperson and two others members. The Chairperson is, or has been, or is to be qualified to be appointed as Judge of the High Court and to be appointed after consultation with the Chief Justice of the High Court. Two members appointed by the Government and one of the technical members are required to have “suitable” professional qualifications and experience in the environment field as may be prescribed. The Government after consultation with the Chief Justice High Court appointed Mr. Justice Sadaqat Hussain Raja, as Chairperson of the Environmental Tribunal in addition to his function as Judge of the High Court. The other two members included Farhat Ali Mir and Muhammad Bashir Khan.
?He said that since the Azad Jammu & Kashmir Environmental Protection Act, 2000, further provides that “the High Court shall empower the judicial magistrates of the first class to be Environmental Magistrates and they shall exclusively try certain offenses listed in it”. The High Court of Azad Jammu & Kashmir has designated all Senior Civil Judges at District Headquarters as the Environmental Protection Magistrates.
Coming to the role of judiciary preventing the degradation of environment, I’m blissful to say that this has been quite positive. It should, however, be remembered that the Court can intervene only when it is moved either by an aggrieved party or by some public spirited citizen complaining of an ‘environmental harm. Since concern in Pakistan for environmental deterioration in relatively of recent origin, the superior judiciary of Pakistan has developed a special role in protecting the environment and this, inspite of the fact that environment is not included in the Constitution amongst the fundamental rights of the citizens, he said.
Referring to various verdicts related to the environment made by the apex court of Pakistan, the CJ of AJK High Court said ‘’In the signpost case titled “Shehla Zia and others vrs. WAPDA (PLD 1994 SC-693), the Hon’ble Supreme Court of Pakistan led the way in holding that “The right to environment is included in the right to life and the right to dignity guaranteed by the Constitution of Pakistan”. This was a bold initiative by the Supreme Court. Shehla Zia’s case is being followed in several other cases and it is now settled law in Pakistan that the judiciary will move to prevent actions which may harm the environment.
?For instance, in “General Secretary Salt Miners Labor Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore” (1994 SCMR-2061), the Honorable Supreme Court, relying upon Shehla Zia’s case and reiterating its openness to procedural constraints in public interest litigation cases, stated that “The right to have unpolluted water is the right of every person wherever he lives”.
Similarly, in Rana Ishaque vs. DG, EPA, (Writ Petition No. 671 of 1995) before the Lahore High Court Lahore, theHigh Court restrained one hundred and twenty-one (121) industrial units of Punjab, excluding those that had already installed treatment plants, from discharging seepages into drains and canals stating that these were being drained without treatment.
?In Anjum Irfan vs. LDA, (Writ Petition No. 25084 of 1997), the Lahore High Court, citing Shehla Zia’s case, addressedthe setting of air and noise pollution standards under the Pakistan Environment Protection Act, 1997 and suggested that the new industries must be compelled to install devices used for checking and controlling pollution.
?In environment exploitation-dumping of nuclear waste human rights case (PLD 1994 SC-102), the news item was published in Daily Dawn in July 1992 as “Nuclear Waste to be dumped in Baluchistan” The Honble Supreme Court took suo-motu notice on the news item and the Court directed the authorities that no one will apply for the allotment of land for dumping nuclear or industrial waste. The Hon’ble Court further directed the authorities that “be vigilant in checking the vessel and residents that they are not engaged in dumping industrial or nuclear waste of any nature on the land or in the sea or destroying it by any device”. This saved the life of millions of people of the locality. After this restraining order the locality is free from this harmful waste throughout the country.
?The Hon’ble Supreme Court of Pakistan took suo-motu action regarding the traffic congestion in the city of Karachi and resulting smoke and noise pollution (PLJ 2009 Magazine-117). The Court held that “one cause of pollution is the adulteration in fuel” and directed to have a good check at all level i.e. at Oil Refinery, Oil Company during transit at the petrol pumps etc. The second important point discussed by the Court was noise of the non-silencered Motor vehicles and they were not allowed to ply without silencer and pressure horns or multi-tones horns giving unusually harsh shrill loud or alarming voice were also banned. The Hon’ble Court further observed and made a reference thatthe Motor Vehicles Ordinance, 1969, Rules 154,155,158 prohibits all these practices/offences and the Police should ensure that in future these provisions of law should not be violated.
?”Rotary Club Quetta vrs. D.M Quetta and others” (Constitutional Petition No.119 of 1999) Rotary club filed a complaint against the brick kilns situated in and around Quetta city with this contention that they are causing health problems by polluting air and emission of heavy smoke and injurious gases are hazardous to our environment. The heavy smoke thrown by the brick kilns was causing vision problem and creating danger to the aircrafts at the time of taking off or landing near Air Base Quetta. The Rotary clubs stance was that the brick kilns should be shifted out of the municipal limits or the owners be asked to use ?filtration and checking system. “The Court took action against the brick kilns owners and their operation was banned under section 144 Cr PC”.
The Baluchistan Environmental Protection Agency initiated action and issued Environmental Protection Order under Sec 11(a) & 16 of the Environmental Protection Act, 1997. All the brick kilns situated within Quetta Municipal limit were shifted out and the Government paid Rupees three hundred and thirty thousand 330,000.00) as compensation to every owner.
The Chief Justice of AJK High Court thanks all of the participants and intellectuals contribution particularly the Hon’ble Judges of the Lahore High Court, Mr. Justice Sardar Muhammad Shamim Khan and Mr. Justice Muhammad Furrukh Irfan Khan (an eminent Jurist), who took long voyage and graced the occasion by attending the august moot.
Justice M. Tabassam Aftab Alvi while applauding the ?Environmental Protection Agency (EPA) of AJK, said that EPA AJK equally deserves my appreciations for organizing this 151 Judicial Conference.
The AJK HC Chief Justice High Court while concluding, observed to restrain from issuance of stay orders against the Environmental Protection Agency, the EPA – as it leads to destruction and degradation of environment that causes health issues. He however, suggested the judges to apply complete diligence and prudence in environmental cases.
Earlier, welcoming the participants of the conference, Director General EPA AJK Raja Muhammad Razaq said that it was a matter of great pleasure and privilege for his institution to host such a prestigious ‘Judicial Conference on Environmental Justice’ – which is first of its kind in AJK.
He expressed gratitude to Chief Justice of AJK HC for appreciating the proposal — for holding this Judicial conference – which is exclusively aimed at developing understandings regarding prevailing environmental challenges – and to pave the way forward within four corners of law – for safeguarding the pristine environment of the State of AJ&K.
He also thanked Chairman Environmental Tribunal Justice Sadaqat Hussain Raja for guiding EPA regarding this conference. At the same time, I equally feel indebted to Additional Chief Secretary Dev – Dr. Syed Asif Hussain – who is also assigned the responsibilities of Secretary Environment – for his encouragement, and consistent support to hold such an important conference – which has direct bearing on environmental security – that over the time, has gained the status of a basic human right. The DG EPA also thanked Resource persons for their long travel from Lahore and Karachi.
Addressing the conference Raja Razaq said “As we all – are well aware of the fact that future generations have rights over the present environmental resources and we have to safeguard all such natural assets for them as well. Please appreciate that environment – due to its multiple impacts – has globally gained significance – and it being a cross-cutting sector needs holistic approach — and we all need to join hands for this legal obligation with national zeal. —
“Of course, we shall be able to secure the environmental rights of the present as well as future generations— only through Rule of law and environmental justice”, he vowed.