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Middle East Environmental Law


Pakistan

GENERAL INTRODUCTION

Pakistan is an Islamic republic in a federal system and Islam is the state religion. The country has an area of 310,527 square miles and a population of 170 million. The Islamic Republic of Pakistan is comprised of four provinces: Balochistan, the Khyber Pakhtunkhwa, the Punjab and Sindh: Islamabad is the Federal Capital with Federally Administered Tribal Areas (FATA). These federating units represent a great deal of diversity and variety in terms of languages, levels of social and economic development, population density and climatic conditions. Approximately 95 percent of the population is Muslim and the majority of Pakistan's Muslims are Sunni, with a Shi'a minority ranging between 15 to 20 percent. Pakistan has had a long record of Army involvement in politics. Pakistan became an independent state in 14 August 1947 (from UK) and Mohammed Ali Jinnah was the founder of the nation.

GOVERNMENT OF PAKISTAN

The Constitution of Pakistan enacted in 1973 is the highest law of the land. It provides for a parliamentary system of government with an indirectly elected President of Pakistan as the head of state and an indirectly elected Prime Minister as head of government. Pakistan has a bicameral legislature that consists of the Senate (upper house) and the National Assembly (lower house). Together with the President, the Senate and National Assembly make up a body called the Majlis-e-Shoora (Consultative Council) or Parliament. There was an eighteenth amendment to the Constitution of Pakistan in 2010 which guaranteed the federal parliamentary system and reduced presidential powers.

The Pakistani government is led by a cabinet headed by the Prime Minister. The Cabinet includes both Federal ministers and ministers of state respectively. Federal ministers enjoy especially wider powers.

President

According to the Constitution, the President is chosen by the Electoral College to serve a five-year term. The Electoral College is made up of the Senate, the National Assembly, and the provincial assemblies. The President may be re-elected but may not serve for more than two consecutive terms. He may also be impeached and subsequently removed from office by a two-thirds vote of Parliament.

Prime Minister

The Prime Minister is elected by the National Assembly, members of which are elected by popular vote. Most commonly, the leader of the party or coalition with the most votes becomes the Prime Minister. The Prime Minister is responsible for appointing a cabinet. The President has the constitutional reserve power to remove the Prime Minister, through dissolution of the National Assembly, triggering new elections.

Legislative System

According to article 50 of the Constitution, the Parliament of Pakistan consists of the President and the two Houses known as the National Assembly and the Senate. The National Assembly holds exclusive legislative authority over money matters. With the exception of money bills both Houses work together to carry out the basic law making function of Parliament.

1. National Assembly

The National Assembly of Pakistan is the country's sovereign legislative body. It embodies the will of the people to let themselves be governed under the democratic, multi-party Federal Parliamentary System. The National Assembly makes laws for the Federation in respect of the powers enumerated in the Federal Legislative list. Through its debates, adjournment motion, question hour and Standing Committees, the National Assembly keeps a check over the Executive and ensures that the government functions within the parameters of the Constitution and does not violate the fundamental rights of citizens. Only the National Assembly, through its Public Accounts Committee, scrutinizes public spending and exercises control over expenditure incurred by the government.

2. LEGISLATIVE PROCEDURE

A bill relating to the Federal Legislative List can originate in either House. If house passes a bill through majority vote, it must be transmitted for consideration by the other house. If the other house passes it without amendment, it must be presented to the President for assent. If a Bill is transmitted by one House to another but is not passed within ninety days or rejected, it must be considered in a joint sitting to be summoned by the President on the request of the House in which the Bill originated. If the bill is passed in the joint sitting, with or without amendments, by a majority of the members of the two houses, it is then presented to the President for assent.

If a bill is presented to the President for his assent, he must assent to the bill in not less than ten days. If it is not a money bill, the President may return the bill to the Majlis-e-Shoora (Consultative Council) with a message requesting that the bill be reconsidered and that an amendment specified in the message be considered. The Majlis-e-Shoora must reconsider the bill in a joint sitting. If the Bill is passed again, with or without amendment, by vote of the majority of the members present and voting, it is then presented to the President and the President must give his assent within ten days; if the president fails to affirmatively grant his assent shall be deemed to have been given.

Under the Constitution, the Parliament may also legislate for two or more Provinces by consent and upon their request. If the Federal Government proclaims State of Emergency in any province, the power to legislate for that province is vested in the Parliament. But bills passed by the Parliament during a State of the Emergency, cease to have any force after the expiration of six months after the date emergency is lifted. Nevertheless, the measures previously adopted under this process remain valid.

The Parliament has other important duties to perform. The President, who is at the apex, is elected by members of both Houses of the Parliament and the Provincial Assemblies. The Prime Minister, who heads the Cabinet and who aids and advises the President, belongs to the National Assembly. He enjoys the confidence of a majority of the members of the National Assembly. Members of the Cabinet are appointed by the President on the advice of the Prime Minister.

In the formation of the Cabinet the major portion (75%) are drawn from the National Assembly while the rest (25%) are taken from the Senate. There is a democratic procedure to remove the Prime Minister from his office if he loses the confidence of the majority of the members of the National Assembly. A resolution for a vote of no-confidence can be moved by not less than 20% of the total membership of the National Assembly. If the resolution is passed by majority of the total membership of the National Assembly, the Prime Minister immediately relinquishes powers.

For the removal or impeachment of the President, not less than one-half of the total membership of either House must indicate in writing their intent to support such action. In a joint sitting of the two Houses, convened for the purpose, if a resolution of impeachment passes by vote of not less than two thirds of the total membership of the Parliament, the President ceases to hold office immediately upon the passage of the resolution.

In the event an emergency is proclaimed, the Parliament holds the authority to extend the term of the National Assembly. Under the Constitution, the Parliament may also, on the request of the Federal Government, confer functions upon officers or authorities subordinate to the Federal Government.

Legal System:

Pakistan's judicial system stems directly from the system that was used in British India. The Supreme Court has original, appellate, and advisory jurisdictions. The president of Pakistan appoints the justices. Each province has a high court, the judges of which are also named by the President. Below the high courts are district and session courts, and below these are subordinate courts and village courts on the civil side and magistrates on the criminal side. There are no jury trials in Pakistan.

The British tradition of an independent judiciary has been undermined in Pakistan by developments over the last 50 years. In May 1991, for example, the National Assembly adopted legislation incorporating the Islamic legal code, the Shari'ah law, into Pakistan's legal system. A Federal Shari'ah Court has the power to nullify any law it finds repugnant to Islam.

Courts in Pakistan are also subject to pressure from the executive branch, in part because of presidential power over transfer and tenure of high court justices and lower court judges. Judges on the special courts are retired jurists hired on renewable contracts so that their decisions may be influenced by a desire for contract renewal. Nonetheless, the provincial high courts and the Supreme Court have exercised some degree of independence in handing down a number of rulings against the government. In 1996 the Supreme Court issued orders curtailing the powers of the executive to appoint and transfer high courts judges.

In late 1997, the issue of the appointment of judges to the Supreme Court led to a deterioration of relation between Prime Minister Nawaz Sharif and the chief justice of the Supreme Court, Sajjad Ali Shah. In November, the Court brought charges of contempt against Nawaz Sharif. But the chief justice was forced out of office before a verdict could be handed down (a guilty verdict would have disqualified Sharif from office).

The position of the judiciary in Pakistan has also been affected by periods of military rule. When General Zia al-Huq imposed martial law in 1977, military courts were granted jurisdiction over cases involving alleged violations of martial law. The verdicts could not be appealed to a higher civilian court. Moreover, a provision of the 1973 constitution that judges could be removed only by the supreme judicial council, consisting of the chief justice and two ranking judges from the Supreme Court and the high courts, was revoked by the military government in June 1979. Under the 1981 interim constitution, a new oath was imposed on all Supreme Court, high court, and Shari'ah court judges, and all laws promulgated by the martial law regime were exempted from judicial review. The Supreme Court chief justice and several other judges were replaced after refusing to take the oath. Although the military courts were abolished in December 1985, their decisions still cannot be appealed to civilian courts.

Similarly, in January 2000, Musharraf required all judges to take an oath of loyalty to his regime. The Supreme Court chief justice, Saiduzzaman Siddiqui, and five colleagues refused and were dismissed. This was just a week before the court was due to hear the first of several cases challenging the legality of the new government. Legal experts argue this action did irreparably harm to Pakistan's judiciary. With all sitting judges having accepted the military regime, there is no independent judiciary to protect the constitution. 

ENVIRONMENTAL LAW

Poor natural resource management over many years and continuing high population growth have had a negative impact on Pakistan's environment. Agricultural runoff--caused by ongoing deforestation--and industrial runoff have polluted water supplies, and factory and vehicle emissions have degraded air quality in the urban centers. Like other developing countries, Pakistan has focused on achieving self-sufficiency in food production, meeting energy demands, and containing its high rate of population growth rather than on curtailing pollution or other environmental hazards. As a result, "green" concerns have not been the government's top priority.


Yet, as Pakistan's cities suffer from the effects of air pollution and unplanned, environmental issues have become more salient. Safeguarding public health, as well as preserving Pakistan's natural wonders, has made environmental protection increasingly important.

The Constitution of 1973 mentions environmental objectives in the preamble, but no specific law was drafted at that time. The Federal Environment Ministry was established in 1975 as a follow up to the Stockholm Declaration of 1972. The Ministry was responsible for promulgation in 1983of the Pakistan environmental Protection Ordinance PEPO, the first comprehensive legislation in the country. The PEPO highlighted the need to have a framework of environmental law in Pakistan to address emerging national issues. It established the Pakistan Environmental Protection Council (PEPC) and the Pakistan Environmental Protection Agency, and introduced the concept of Environmental Impact Assessments. It is unfortunate that PEPO has remained largely unimplemented. PEPC met in 1993 for the first time and approved National Environmental Quality Standards (NEQS), which led to limits on major pollutants in municipal and industrial liquid effluents, industrial gaseous emissions, motor vehicle exhaust and noise.

In 1992 Pakistani officials attended the Earth Summit in state of Brazil (Rio-De Janeiro) and thereafter Pakistan became party to various international conventions and protocols. This political commitment augmented the environmental process in the country. In the same year, Pakistan prepared a National Conservation Strategy (NCS), providing a broad framework for addressing environmental concerns in the country. The NCS outlined the state of Pakistan environmental health, its sustainability goals, and a program for future action.

The NCS stipulated three goals for the country's environmental protection efforts: conservation of natural resources; promotion of sustainable development; and improvement of efficiency in the use and management of resources. Fourteen program areas were targeted for priority implementation, including energy efficiency improvements, renewable resource development/deployment, pollution prevention/reduction, urban waste management, institutional support of common resources, and integration of population and environmental programs.

In 1993 Environmental Quality Standards (NEQS) were designed. The Pakistan Environmental Protection Act PEPA was enacted on 6th December 1997, replacing the Pakistan Environmental Protection Ordinance. The PEPA is the first environmental protection legislation that provides framework for implementation of the NCS, establishment of provincial sustainable development funds, protection and conservation of species, conservation of renewable resources, establishment of environmental tribunals and appointment of environmental magistrates, and authorization of Initial Environmental Examination (IEE), and Environmental Impact Assessments (EIA). Pakistan's Environmental Policy is based on participatory approach to achieving objectives of sustainable development through legally, administratively and technically sound institutions.

Middle East Environmental Law, through its cooperation with the IUCN Commission on Environmental Law is permitted to share the results of research conducted by environmental law scholars in Pakistan. The related links are provided below under Pakistan Environmental Law.

 

ENVIRONMENTAL ISSUES

Pakistan lies in the temperate zone. The climate is generally arid, characterized by hot summers and cool or cold winters, with wide variations between extremes of temperature. There is little rainfall. Pakistan has four seasons: a cool, dry winter from December through February; a hot, dry spring from March through May; the summer rainy season, or southwest monsoon period, from June through September; and the retreating monsoon period of October and November. The onset and duration of these seasons vary somewhat according to location.

In recent years Pakistan has experienced impressive real growth accompanied by a sharp decline in poverty. However, human well-being is critically dependent on the continued availability of essential ecological services and natural resources. Pakistan's environment and natural resources are increasingly polluted and under stress. Pressing environmental concerns facing the country relate to the management of scarce natural resources, pollution and waste management and potential vulnerabilities to natural hazards and climate change.

Pakistan's natural resources are increasingly under stress due to rapid population growth and environmentally unsustainable practices. Renewable fresh water resources are rapidly depleted pushing Pakistan into the category of water stressed countries. Fresh water flows in Pakistan's rivers have been substantially reduced by water diversion for agricultural irrigation in recent decades. Canal irrigation, due to low levels of efficiency, has resulted in salinization, adversely affecting crop yields. An excessive and improper use of pesticides is destroying the natural biotic balance in agriculture soils and reducing the diversity of invertebrate fauna. The reported decline in the area under the natural forest cover has implications for essential ecological services, irrigation, and biodiversity. Mangroves, the traditional breeding grounds for commercially important sea life, have also declined. Similarly, Pakistan's arid and semi-arid rangelands are extensively degraded due to large increases in livestock grazing. The trends and prospects for the future vary greatly depending on climatic conditions and social responses.

Pollution due to a lack of effective management has emerged as a major environmental concern in Pakistan. Over the years Pakistan's growing energy consumption needs have resulted in increased reliance on imported fossil fuels. Its progress towards energy efficiency has been modest due to weak technical and institutional capacities. Measures such as conversion of vehicles to cleaner fuels (CNG), no lead gasoline and low sulphur diesel have been implemented but remain insufficient to prevent deterioration ambient air quality in face of increasing vehicle numbers. Indoor air pollution is a major cause of widespread chronic bronchitis and other respiratory infections in rural households and poor urban households that depend on biomass for cooking, particularly in winter.

Pakistan also faces environmental challenges from natural hazards including floods, earthquakes, droughts and cyclones. Pakistan is a flood prone country, while earthquakes and droughts are recurring phenomena in vulnerable regions. There are other environmental challenges such as excessive industrial discharges.

Pakistan listed its environmental problems in its Initial National Communication to the Framework Convention on Climate Change (UNFCCC) in 2003. It is a comprehensive document covering the entire gamut of environmental concerns, and offers its solutions for tackling the problems.

The National Environment Policy of 2005 addresses some of the environmental issues and concerns. It is a very good document but it has not been acted upon. Further legislation, guidelines or policy changes are needed in areas including, clean air and water conservation, biodiversity, oil pollution, climate change, energy conservation, national policy for desertification and conducting proper environmental impact assessment.

In addition, while Pakistan has been part of all multilateral negotiations on the environment, but unfortunately has not been able to implement them on a national basis. It needs the political will to implement environmental protection regulations. It needs to bring faster changes in its environmental legislations and even faster implementation of those measures.

Note: IUCN Environmental Law Initiative link to Pakistan Environmental Law Series:

http://www.iucn.org/about/union/secretariat/offices/asia/asia_where_work/pakistan/pk_elaws/.

This link is distributed by the permission of the IUCN Office in Pakistan.

SELECT BIBLIOGRAPHY

• Constitution of the Islamic Republic of Pakistan

• Official website of the Government of Pakistan, http://www.pakistan.gov.pk/

• National Environment Policy -2005, Ministry of Environment, Government of Pakistan.

• Brief on Pakistan Environmental Protection Act, 1997, Ministry of Environment, Government of Pakistan.

•· Asian Development Bank: Islamic Republic of Pakistan, Country Environment Analysis, http://www.adb.org/.

• Read more: Judicial system - Pakistan - power http://www.nationsencyclopedia.com/Asia-and-Oceania/Pakistan-JUDICIAL-SYSTEM.html#ixzz1YiVQJsTR

• National Assembly of Pakistan website:http://www.na.gov.pk/en/content.php?id=1

• Pakistan's Initial National Communication on Climate Change, November 2003, http://unfccc.int/resource/docs/natc/paknc1.pdf

• document on 'Climate Change: Impacts, Vulnerabilities, and Adaptation in Developing Countries', http://unfccc.int/resource/docs/publications/impacts.pdf

• National Economic & Environmental Development Study (NEEDS), February, 2011, http://unfccc.int/files/adaptation/application/pdf/pakistanneeds.pdf