The Counsel



by Javed Jabbar

In times when Pakistan's Government and governance systems are being compelled to respond to unprecedented challenges by the superior Judiciary for their accountability, it is admirable that the Chief Justice of the Supreme Court convened and co-hosted a path-breaking South Asian Conference on Environmental Justice on 24th and 25th March 2012 in Bhurban.

Sceptics, of which there is a healthy surplus, ask: " Doesn't the Supreme Court already have enough on its plate ? .

Are there not other pressing issues such as missing persons,the role of the intelligence agencies, continued defiance of Court orders by the Prime Minister and others, nepotism, et al ?.

Even as sceptics, and their more invidious cousins, the cynics, express disquiet about judicial hyper-activism, the initiative taken to convene the Conference became a fine example of the use of the suo motto powers of the Supreme Court to focus urgent attention on the primacy of the environment and equally importantly, to enhance its own knowledge and capacity on the subject.

And no normal working days were diverted for this meeting. A Saturday and a Sunday were devoted to this laudable cause. Participants sacrificed the time which should have been spent with their families to thinking about what human appetite for consumption is doing to the finite, limited resources of our planet. Nature took due note. The weather remained pleasant, cloudy and fleetingly sunny. Fittingly, on conclusion, light rain gave a gentle blessing.

Taking place just six months after the Conference on Environmental Law held in Quetta in October 2011 at the initiative of the Chief Justice of the Balochistan High Court, Mr Justice Qazi Faez Isa and the Balochistan High Court Bar Association, the March 2012 conference directed by the Supreme Court came as an apt and timely continuation of a vital process. It was also an expression at the highest level of the judiciary that the subject's significance deserves priority attention by the Legislative and Executive pillars of the State.

While the scope of the event was South Asian and while participation from the other countries of the region was symbolic yet informative and relevant, the principal attention was inevitably applied to Pakistan. There was a refreshing aura of humility and a genuine interest in learning that pervaded a gathering conventionally perceived to be already well-informed on most matters.

The Court was supported in the task of organizing the moot by the Asian Development Bank ( ADB), the United Nations Environment Programme ( UNEP) and the International Union for Conservation of Nature ( IUCN ).

Justice Anwar Zaheer Jamali, Judge of the Supreme Court, ably led the Committee which structured the agenda and oversaw the preparatory process. Attended by the Chief Justices of the Federal Shariat Court, the High Courts of all four Provinces as well as of Islamabad and Gilgit-Baltistan, and several Judges of the Supreme Court, High Courts, the Attorney General, Advocates General, District Courts, Judicial Academies, senior and not-yet-senior lawyers and a few citizens from diverse sectors, the Conference became a comprehensively participative , brief yet intensive experience.

Despite being South Asian in name, the event was Asian from west to south east. Presentations and contributions were made by Justice Mohammad Alhamid, the Chief Justice of Jordan, Justice Takdir Rahmadi of the Supreme Court of Indonesia, Justice Sangay Khandu, Acting Chief Justice of Bhutan, Justice Hasan Foez Siddiqui of the Supreme Court of Bangladesh, Justice Tahir Ali Ansari of the Supreme Court of Nepal, Justice Shiranee Tilakwardena of the Supreme Court of Sri Lanka, advocate Ritwick Dutta, Legal Initiative for Forests and Enironment, India, and Justice Zamin Ali Behsudi, of the Supreme Court of Afghanistan.

Giving the conference a truly trans-continental and global perspective was the participation of Justice Antonio Benjamin from the Supreme Court of Brazil who is also Vice Chairman of IUCN's Commission on Environmental Law.

With three plenaries, including the inaugural and closing sessions, attended by about 200 persons,and three concurrent thematic sessions attended by about 50 persons in each, the event enabled the identification and analysis of both broad, all-embracing concerns as also specific, sectoral issues. The concurrent sessions concentrated on Environment Law and Policy, Environmental Adjudication and Environmental Education and Capacity Building.

While the Bhurban Declaration adopted on conclusion accurately summarizes the crisis and the calls for action, there were two major steps pronounced by the Chief Justice of the Supreme Court which are of immediate and long-term significance for Pakistan.

The first was for a proposal for Parliament to give consideration to amending the Constitution so as to enshrine in clear, categorical words the right to a stable, secure, sustainable environment as a fundamental right. Presently, Article 9 of the Constitution which refers to the right to life is broadly interpreted to include this right. But the obligation of the State to ensure this most basic condition for survival requires explicit articulation. This has become particularly necessary after the adoption of the 18th amendment whereby the subject of " Environmental pollution and ecology " previously appearing in the Concurrent Legislative List has been omitted and thus transferred to the Provinces.

The second step was the decision by the Chief Justice to shortly formally constitute " Green Benches " of the Supreme Court to apply specialized judicial knowledge and legal precepts to adjudicating cases with an environmental dimension, such matters becoming increasingly complex in a world beset with both climate change and growing disparities that then drive the " development-first-environment-later " mind-set which shapes the economy at the cost of ecology. It was also hoped that the High Courts would constitute similar green benches.

While appreciating the pro bono work rendered by Dr Parvez Hasan for environmental causes, the Chief Justice referred to several instances in which the superior judiciary has intervened effectively. Commencing with the famous Shahla Zia case through the cancellation of the New Murree project to the prevention of dumping of toxic wastes on the Balochistan coast to the most recent example of the Canal Bank road trees in Lahore, the head of the country's judiciary nevertheless regretted the wilfull or negligent failures in implementing laws and rules that already exist.

Justice Syed Mansoor Ali Shah highlighted the need to distinguish between environmental justice and the normal judicial process based on the adversarial concept. He suggested that because all humanity is, or should be, only on one side, i.e. the side of the planet's health, the approach to environmental justice must be inquisitorial and investigative rather than be shaped from the very outset by a partisan viewpoint.

Justice Qazi Faez Isa reflected upon the profound relationship between religion, specially Islam, and reverence for the beauty and uniqueness of Nature inherent to all faiths. He urged that this power of spirituality be made the cornerstone for practical, physical actions.

Pledging to take forward the cause of the environment " more aggressively, meaningfully and holistically ", the Bhurban Declaration acknowledged the pivotal role that the judiciary can play while at the same time recognizing the decisive roles of all other stake-holders, be it the government, the corporate sector or civil society.

The Declaration was sub-titled " A common vision on environment for South Asian judiciaries ". The text stressed the need to institutionalize the process of sharing information and experience within the region and to use the Asian Judges Network on Environment to further the effort while specifying nine actions that should be taken together and in each country.

Apart from the instructive exchange of experiences and episodes, data and references, recommendations emerging from the deliberations included the need to continually build the capacity of courts and legal practitioners at all levels to appreciate the multiple dimensions of the environment, the large number of international treaties, conventions and protocols already in existence, the range of statuettes and regulations at the Federal and Provincial levels and the unmet needs of enforcement mechanisms such as environmental tribunals.

Speakers from Pakistan who made pertinent, thought-provoking contributions were led by Chief Justice Iftikhar Mohammad Chowdhy, and included Balochistan Chief Justice Qazi Faez Isa, Justice Syed Mansoor Ali Shah of the Punjab High Court, Justice Munib Akhtar of the Sindh High Court, Justice Yahya Afridi of the Khyber-Pukhtoonkhwa High Court, Justice Riaz Ahmad Khan of the Islamabad High Court, Dr Parvez Hasan, Senior Advocate of the Supreme Court former Chairman, IUCN' Commission on Enironmental Law,Dr Adil Najam, Vice Chancellor, Lahore University of Management Sciences who presented the inaugural keynote, Mr Zahid Hamid, MNA, Senior Advocate of the Supreme Court and former Law Minister, Justice (r) Tanvir Ahmed Khan, Director-General, Punjab Judicial Academy, Ms Huma Ikramullah, Faculty member, Sindh Judicial Academy, Ms Ashraf Jahan, Chairperson, Sindh Environmental Protection Tribunal, Ms Irum Ahsan of ADB,Dr Ashiq Ahmed Khan, Dr Shahbaz Khan and others.

In addition to the visitors from overseas countries named earlier, other foreign participants who presented substantive material included Ms Syeda Rizwana Hasan, Executive Director, Bangladesh Environmental Law Association, Shiva Prasad Paudel, of Pro Public, Nepal, Ms Wanhua Yang of UNEP, and votes of thanks by Werner Liepach of ADB and Shah Murad Aliani of IUCN.

During the concurrent session on education, this writer briefly described IUCN's unique role, and presented recommendations on how civil society organizations in Pakistan, many of which serve a wide range of public interest causes with great distinction, and some of which are dedicated to environmental issues, deserve enhanced financial support from Pakistani philanthropy to reduce dependence on overseas donor-sources. With particular regard to making public hearings of Environmental Impact Assessments more purposeful it is crucial to empower civil society forums to conduct extensive independent research, engage competent legal counsel of calibre and to sustain advocacy to counter the vastly better-resourced corporate and Government sectors.

The South Asian Conference on Environmental Justice was a landmark event that will, hopefully, stimulate progressive action by every citizen and institution, by every part of the inter-dependent, inter-woven, incredibly spectacular and yet vulnerable web of our shared life.

In his voluntary work capacity, the writer is an elected global Vice president, IUCN

Bhurban Declaration 2012

A Common Vision on Environment for the South Asian Judiciaries

Adopted on March 25, 2012

RECOGNIZING that the challenge of sustainable development and scarcity of natural resources is common to South Asia requiring urgent attention by all stakeholders concerned.

REALIZING that judiciaries in the region should play their role in sustainable development and for the protection of the environment.

GUIDED by the objectives (1) to recognize common environmental concerns and to share information among South Asian Judiciaries on South Asia’s common environmental challenges; (2) to highlight the critical role of South Asian senior Judiciaries as leaders in national legal communities and champions of the rule of law and environmental justice, with the ability to develop environmental jurisprudence; and (3) to develop a process for continuing the cooperation and engagement of SAARC senior judiciaries on environmental issues.

CONFERENCE on Environmental Justice was organized by the Supreme Court of Pakistan, supported by the Asian Development Bank (ADB), United Nations Environment Programme (UNEP) and IUCN, International Union for Conservation of Nature and Natural Resources.

PARTICIPATION of the Chief Justices of the Supreme Courts of Pakistan, Jordan and Azad Jammu & Kashmir; Chief Justice of the Federal Shariat Court; judges from the Supreme Courts of Afghanistan, Bangladesh, Brazil, India, Jordan, Nepal, Pakistan, Sri Lanka and Indonesia; Chief Justices of the High Courts of Balochistan, Bhutan, Islamabad, Lahore, Peshawar and Sindh; judges from the High Courts of Balochistan, Bhutan, Islamabad, Lahore, Maldives, Peshawar and Sindh, and other participants from relevant institutions/ agencies1

IT WAS AGREED that the role of the judiciary is pivotal in resolving the environmental issues, but it is equally important that all stakeholders play their assigned role in protecting the environment and institutions must be effective, particularly from the point of view of enforcement of orders and directions. Further, the participants agreed to share the vision of this Conference with other judicial members in their respective countries. underlines the importance of environment and sustainable development.


  1. TO COLLABORATE among themselves and, as appropriate, engage others in the environmental enforcement processes, to significantly improve the development, implementation, and enforcement of, and compliance with, environmental law and collaborate to make an Action Plan to achieve the same;
  2. TO SHARE information on South Asian countries’ common environmental challenges and, as appropriate, among the legal professionals, law schools, and the general public;
  3. TO DISSEMINATE information on environmental challenges and legal issues, and best practices in environmental adjudication among themselves, whilst acknowledging the differences among their respective legal systems, on the website of Asian Judges Network on Environment;
  4. TO STRENGTHEN specialised environmental tribunals and provide environmental training for the judiciary and other members of the legal fraternity;
  5. TO INVITE members of the South Asian Judiciaries to share their respective experiences and participate in training programs for judges from the South Asia region;
  6. TO IMPLEMENT existing rules of procedure for environmental cases and develop the same where they do not exist, which may include a flexible approach to legal standing, special rules of evidence for environmental cases, expeditious disposal of cases, special remedies, injunctive relief, and other innovative environmental processes;
  7. TO ENSURE that judicial decisions on environmental cases are shared within the Asian Judges’ Network on Environment and made available to the public;
  8. TO ENCOURAGE law schools to include environmental law in their curriculum;
  9. TO PROVIDE environmental law training to judges through judicial academies, including making such training available for members of lawyers professional associations;
  10. TO HOLD a South Asia Justices’ Conference on Environment annually on rotational basis to foster cooperation on environment, as a sub-regional group of the Asian Judges Network on Environment;
  11. TO DEVELOP a system to recognise whenever exceptional contribution is made by judges and environmentalists for the cause of environment;
  12. TO DRAFT a memorandum of understanding to foster cooperation amongst the South Asia judiciary and send the same for signature and adoption by the South Asian region judiciaries, which may lead to a South Asia Convention on Environmental Justice;
  13. TO ESTABLISH green benches in courts for dispensation of environmental justice; and
  14. TO RECOMMEND that the right to clean and healthy environment be incorporated as a Fundamental Right in the Constitution.