By Ahsan Kamal Khan
Environmental Constitutionalism was formally incorporated in the System through Article 9A by the recent 26th Amendment. It will unfortunately create a democratic imbalance in society.
Article 9A is purely a fundamental right defining article. Defining a clean environment as a fundamental right is appreciable legislation. But, is it enough? Obviously, No. Because wherever there is a right there should be a duty. Our Constitution contains a chapter of fundamental rights (good to have) but lacks a chapter over duties of individuals (which is not so good).
It is a basic principle of law that wherever there is a right there is a duty. Our constitution contain a whole chapter of fundamental rights but lacks a chapter over fundamental duties. To address the same issue, Indian Parliament through an amendment added Article 51A in the constitution. Resultantly, Pakistan has been facing severe climate issues for the last half decade. The responsibility is solely of the Government. I don’t think so. They are responsible for not adding a duty chapter in the Constitution. Noting more or less
This is a potential imbalance. To deal with the same issue Indian Parliament added Article 51A to define fundamental duties. Now, the state of Pakistan is defining the fundamental right of a clean environment but didn’t demand or impose any duty on individuals to make their environment clean. Resultantly, Pakistan has been facing severe climate issues for the last half decade. The responsibility is solely of the Government. I don’t think so. They are responsible for not adding a duty chapter in the Constitution. Noting more or less.
Environmental Constitutionalism is concerned with environment protection through a constitutional framework. This concept is broad, And includes rights and duties of both the individual and state. Different nation states’s constitutions incorporate environmental rights of individuals but at the same way they also incorporate individual duties toward the environment. The synopsis of Environmental Constitutionalism literature is that there is and should be a balance between the duty of the state and right of the individual. However, a significant imbalance persists in many constitutional systems, wherein the rights of individuals are disproportionately emphasized, while there is a notable lack of emphasis on defining their corresponding duties.
The same pattern is followed in the constitutional structural framework of Pakistan; as the state legislature through a constitutional amendment in last October incorporated Article 9A in the Cnstitution. This article provide a fundamental right of clean, healthy and sustainable environment to every person. This inclusion is positive and appreciable but the absence of defined duty of individuals is alarming that will eventually leads to chaos. Individuals are under obligation to promote and follow environmental values and civic duty; but at the same time the state legislature should through proper constitutional provision draft a framework to do so.
In Pakistan, evironmental constitutionalism through judicial precedents draw its roots back to year 199, when a landmark judgment was passed by Chief Justice Nasim Hasan Shah in case Shehla Zia vs WAPDA. Through this judgement, the Court extensively interprets the fundamental right of life and addresses the potential threat of WAPDA’s administrative action over the environment. This was the first time that any of the state organ of Pakistan addressed the challenges to environment. Similarly, in another case titled as General Secretary of West Pakistan Salt Miners Labour Union v. Director, Industries and Mineral Development, Punjab, the Honorable Supreme Court issued directions to PDMA in order to avoid water pollution.
However, the first major legislative work for the environment protection was the Pakistan Environment Protection Ordinance 1983, which laid the foundation for environment protection. In 1997, this ordinance was replaced by the Pakistan Environmental Protection Act resulting in the establishment of Pakistan Environmental Protection Agency. The most recent inclusion in Pakistan’s environmental constitutionalism is through the incorporation of Article 9A through the 26th amendment. Article 9A says that: “Every person shall be entitled to a clean, healthy and sustainable environment.”
However, to my understanding this incorporation would create a potential democratic imbalance. It is a basic principle of law that wherever there is a right there is a duty. Our constitution contain a whole chapter of fundamental rights but lacks a chapter over fundamental duties. To address the same issue, Indian Parliament through an amendment added Article 51A in the constitution. Resultantly, Pakistan has been facing severe climate issues for the last half decade. The responsibility is solely of the Government. I don’t think so. They are responsible for not adding a duty chapter in the Constitution. Noting more or less.
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