Adal Aur Sehat Project is a legal and health awareness podcast.
In Episode 36, we are joined by Mr. Rafay Alam, an expert on environmental laws, to discuss the environmental protection laws in Pakistan. He has addressed important issues such as what constitutes the environment, the authorities responsible for the protection of the environment, and if an individual has a remedy against an environmental polluter under the law.
This Article is a transcription of Episode 36. Hear the full audio podcast with Mr. Rafay Alam on Adal Aur Sehat Project’s YouTube channel. Link: https://www.youtube.com/watch?v=m6SJhwdDzRE
In today’s world, saying that there is an environmental emergency would not be incorrect! With industrialization, urbanization, the increased use of fossil fuels causing excessive air and water pollution and plenty of other factors; creating environmental awareness and promoting environmental education are the means to ensure that humans do not degrade environment but conserve it for the future.
Q. Can you please give us an overview of the environmental laws present in Pakistan. And whether those laws are separate on a provincial and federal level.
Mr. Rafay Alam: Firstly, we have to define what we mean by the term “environment”? We have a social environment which at times become negative or toxic, and we also have a natural environment. With regards to latter, there are many preexisting laws, for instance, the laws regarding forest protection are dating back to 1928. In the Criminal Procedure Code there are sections related to criminal nuisance which penalizes the person guilty of causing pollution in someone else’s home/land. Similarly, we have Factories Act 1934 which has provisions related to factories emitting pollution and the occupational health and safety conditions inside the factories. Even though these laws had been in existence, however, what we understand environmental law today is something that happened on a global level in 1972 at UN Conference in Stockholm on Human Environment. Pakistan was one of the attendees in this conference, however, there was barely any participation from our side. Regardless, there was a benefit in signing that agreement because when the constitution of 1973 was drafted, in the concurrent list the subjects related to environmental pollution and natural ecology was introduced for the first time and later the provinces were given the jurisdiction to legislate on these subjects. In 1983 there was an Ordinance introduced and in 1997 the National Assembly passed the Pakistan Environmental Protection Act, which defined the term “environment” for the first time. The definition was not only related to the natural environment such as air, water, land etc. but it also includes human environment such as roads, buildings and societies. This Act is enforced by the Environment Protection Agency (EPA) which makes sure that the environment protection quality standards are being followed. These quality standards can be understood as the “speed limits” for pollution. After the 18th Amendment, the concurrent list was removed and therefore, the topic of environmental pollution was limited to provincial level. All the four provinces now have their own laws related to environmental pollution, however, the basis of these laws are similar to the 1997 Act. This was the basic history of how and when the environmental laws came into existence.
Q. What amounts as violation under the Law? For instance, if the car fumes are polluting the environment, will this be a violation under this law?
Mr. Rafay Alam: This is a good question. I will give you an example of Punjab, where the offences related to environmental laws can be categorized as major and minor offences. Some of the major offences include, starting a project without an NOC, or not abiding by the environmental quality standards which can incur a penalty of up to 30–50 lakhs. The minor offences includes, handling or disposing off of hazardous substances without a license, or pollution caused by automobile or sound pollution is adjudicated on an environmental magistrate level and the guilty party can be fined up to 3 lakh rupees.
Q. Can you please tell us the connection between various environmental protection laws? For instance, if someone commits deforestation and illegally constructs a factory which in turn causes air pollution so there is a lot of interconnection of different laws. In this scenario, how can we identify which law is being violated? Also, as you have previously talked about NOC, so a lot of times we notice that the NOC is of questionable nature such as, a factory is being operated in a residential area which is emitting a lot of fumes. What happens in this case?
Mr. Rafay Alam: Firstly, we have Environmental Agency which enforces these laws, and it also conducts the environmental assessment for the projects in provinces, after the assessment the NOC is issued. This is the process to obtain the NOC. Beyond this, the Environmental Agency also has the power to pass Environmental Protection Order (EPO) against anyone caught violating the environmental laws. Just as you said that if a factory is polluting the environment in a residential area or anywhere, then a person has an option to file a complaint to the agency and it is their responsibility to take action, if the violation is proved then the agency can give any order such as order to put pollution control on the factory or even shut it down, or to install a better machinery to reduce the pollution.
Q. Does the Environmental Protection Agency actively pursue these complaints or take any action, and whether there is any tangible outcome seen?
Mr. Rafay Alam: In Punjab there are less than 500 people working in these environmental agencies. In Lahore, there are approximately 12000 industries, and more than 60,000 industries in the entire province of Punjab. If you look at Karachi, there are more than 50,000 industries. In Lahore, there are only 6 inspectors to perform inspection of the entire area, and only a dozen in Karachi. In this situation, if the agency does not have enough resources or people to perform its function, then it cannot perform its role well. Just as if the police cannot investigate or perform biometrics then the entire criminal justice system suffers, similarly, the environmental agency cannot give results if it does not have enough capacity to perform its function. Therefore, the issue is of the capacity and not the law. For instance, in Punjab there are 36 districts and only 5 meters to measure air pollution.
Q. As you spoke about the budget, what is your opinion as to why Pakistan does not take environmental issue seriously? As we have recently experienced that due to climate change, Karachi and Lahore have suffered a lot in the form of heavy rainfalls and smog. And the issue of land sliding in northern areas due to melting glaciers. Even after signing the international environmental treaties, and keeping in mind that environmental pollution is affecting the country and people in almost every manner, why is the country still not taking this matter seriously?
Mr. Rafay Alam: This is not just an issue in Pakistan. If you go to any country you will notice that there are high levels of environmental pollution. For instance, in United States because of their political matters they are not willing to take this issue of pollution on a political level. Recently, an interesting concept has emerged on this matter. As we all live in nation states now as opposed to kingdoms some 100 or 200 years ago. The purpose of the nation state is to serve its people and to work for their benefit and growth, this was designed some 100 years ago. In the 19th century the concept of Human Rights was introduced in this design after World War 2 in the form of UN Declaration on Human Rights, and these rights were adopted by the nation states in their framework. Because of these fundamental rights, some nation states focused on their people’s welfare such as health, social security and education along with economic progress. During this time, the issue of climate crisis arose and it does not fit in the nation states model. The nation state only focuses on its people’s welfare and growth and not the natural ecology. Therefore, this issue does not only exist in Pakistan but it is faced by the entire world.
Q. Can you please let us know the procedure for filing a complaint with regards to environmental pollution caused by any facility? What are the remedies available to the complainant/affected person under the law?
Mr. Rafay Alam: The complaint can be written to the Director General of Environmental Protection Agency, after that the complainant has 30 days to wait for the Agency to take action, if the action is taken then their problem will be resolved, however if no action is taken then the party has a right to go to the Environmental Tribunal which deals with such cases, similar to a criminal trial. Unfortunately, in practice this procedure is so lengthy that I have not seen many factories closed down because of a private complaint. Most of the factories are closed down when the public sector or EPA inspector himself files a complaint.
Q. Does the complainant have an option to apply for an injunction?
Mr. Rafay Alam: Again the complaint is filed to the EPA and if they do not take any action such as collecting evidence or samples of pollution or surveying the affected area, then the same complaint goes to Tribunal and the complaint takes the form of a criminal trial which requires a high burden of proof before the judge holds the party guilty of crime, and to do so, the court would require evidence of such pollution such as samples or tests, and if the EPA has not taken any action then this stops the prosecution.
Q. You have mentioned a very important point of collecting evidence as evidence is always important in any case. This brings me to another point that what is the most common hindrance that you face when filing such a case? Is it lack of evidence or court’s attitude towards environmental protection law and cases?
Mr. Rafay Alam: In private sector, everyone wants the business to go smoothly. These kinds of procedures and actions hinders the business growth which no business person would want. The principle of “polluter must pay” is explained to these people, and if they understand this then they do take action in reducing the pollution such as installing better machinery or treatment plants. We need to let the polluters know that there is a cost that they need to pay if they spread the pollution and they need to internalize this cost in their financial books as well because most of the time they spread this cost to the society instead of taking the responsibility for it. These facilities can even get tax incentives for better environmental performance, for instance, the Green Pakistan Scheme is testing various cities and those with better performance are given a prize by the Federal Government.
I’ve been told a lot of times that in a country like Pakistan where most people are just looking for work and earn a basic living, the issue of environmental protection should not be a priority. I have done much research on this question. I have seen and read a lot that in countries where a movement towards environmental protection and awareness began was against those organizations and businesses who are responsible for destroying people’s lives and homes because of pollution. And this movement has spread from a civil society to the legal system. My point is, the cure for environmental pollution does not come after the economic development but it exists in the middle of the road towards it, and we need to fight for it. Hence, we cannot wait for economic development. An average human life is decreasing by 5 years just because of air pollution.
Q. As you have mentioned that we cannot wait for economic development and we need to address this issue of pollution; the question arises, whether you think it is ever possible to achieve a good environment that is free from air or water pollution in Pakistan?
Mr. Rafay Alam: Few months ago because of lockdown, schools and factories in big cities were closed, and we have noticed a big reduction of air and water pollution. This is not a difficult work, it is possible, but to do so we need to change our habits. Some people say that planting trees or turning the water tap off when not using would be enough, although these are also good habits, but these do not change the larger environment. The environmental pollution exists because of some of the systems in our country. For instance, I am an environmental friendly person but while we are conducting our zoom session here, the electricity is being generated by a coal fired power plant which is causing pollution. As long as we do not fix the energy system, we cannot improve the overall environment. Therefore, we need to move towards improving the system, as this issue has gone beyond an individual level.
Disclaimer: Adal Aur Sehat Project is a legal and health awareness podcast. For our legal awareness episodes, our aim is to spread awareness & to call for legislative reform. We do not give any legal advice and neither should the contents of our podcast or this article on Medium shall be construed as the same. Further, we do not accept liability of any individual, group and/or organization that may suffer from any consequences, which is directly or indirectly related to the Adal Aur Sehat Project.
About the Author:
Ms. Mahrukh Shamim
Innovations & Operations Head
Adal Aur Sehat Project ©