Climate Change Act 2016
Extreme weather conditions, especially exceedingly warm summers, and reports by experts on climate change have pushed climate change to the top of the international agenda. However, according to the intergovernmental panel on Climate Change’s Fifth Assessment Report, current international policy does not deal with climate change properly.
United Nations’ Conference on Climate Change in Paris (COP21) was criticised by experts for being superficial and unclear. One hundred and ninety-five countries including Pakistan, agreed to reduce emissions of greenhouse gases (GHGs) and limit the global average temperature rise to below 2 degrees Celsius with no formulation of a concrete action plan. In the words of the renowned climate scientist James Hansen, the Paris Agreement “…is just worthless words. There is no action, just promises.”
An obstacle in the prevention and reduction of effects of climate change is the absence of a regulatory body, of international or domestic authority, that offers a legal framework to bring activities which contribute to climate change within the boundaries of criminology.
On March 17, 2017 Pakistan became the fifth country in the world to adopt climate change legislation, when the Senate passed the Climate Change Bill. Whilst this legislation is being welcomed and celebrated, this needs to be reiterated: the Achilles’ heel of any legislation of Pakistan is the lack of implementation and accountability.
It was precisely due to this problem that a citizen of Pakistan had to file a petition before the Lahore High Court (LHC), imploring the judiciary to take notice of the lack of implementation of Pakistan’s National Climate Change Policy (NCCP). Yes, we have had a national climate change policy since the year 2013!
In 2015, the LHC ordered the state to implement climate change adaptation strategies. This was the second case in which climate change was addressed through judicial action. The first case was a Dutch case, in which mitigation action was ordered. Subsequent to the Dutch case, the judiciary in multiple jurisdictions has addressed the issue of climate change. There are now legal judgments and orders present, in which the judiciary has instructed governments to take action on climate change. Climate change can be addressed through two approaches: adaptation and mitigation. Mitigation actions involve reducing the extent of climate change itself and can be sub-divided into two strategies: emissions reductions and geo-engineering. Adaptation strategies on the other hand, involve efforts to lessen the vulnerability of humans to climate change impact.[1]
Pakistan’s first case on climate change was regarding adaptation strategies. The government of Pakistan was ordered to enforce the National Climate Change Policy. This order was a result of a public interest litigation petition. The petitioner, Asghar Leghari, claimed that climate change inaction by the state was adversely affecting his life.
In his petition, Asghar put forward the grievances of farmers. He complained to the LHC that the unpredictable weather threatened his crops, and the low-yield due to these weather conditions resulted in a vicious trap of poverty he was trapped in. Asghar belonged to a family of farmers and had witnessed the decline in his family’s sugarcane crop yield due to the fluctuating and hostile climate conditions. He informed the court that the shortage in water-supply and low precipitation destroyed his family’s crops.
In his petition he claimed that the state’s delay in the implementation of the NCCP was a violation of his fundamental constitutional rights, particularly his right to life and right to dignity. He claimed that these rights were violated because they contained the right to a clean and healthy environment. He referred to the case of Shehla Zia,[2] in which it was decided that the right to a clean and healthy environment was implicit in the right to life, and the case of Imrana Tiwana,[3] in which it was stated that the right emerged from the right to dignity. He claimed that the inaction breached the constitutional principles of social and economic justice, as well as international environmental principles such as the doctrine of public trust, sustainable development, precautionary principle and inter-generational equity. Moreover, he stated that the state had failed ‘to ensure water, food and energy security in the face of the challenges posed by climate change’.
In the first hearing, Justice Mansoor Ali Shah heard the petitioner’s grievances and summoned representatives of the concerned ministries and departments. The Joint Secretary of Ministry of Climate Change briefed the court and admitted that the progress had been slow due to non-cooperation of ministries and departments, and lack of awareness regarding the impacts of climate change. For example, the policy measures proposed for water resources comprise of managing the demand and supply. The policy suggests construction of new reservoirs. At present, Pakistan has 163 dams.[4] According to Pakistan’s senior energy consultant Suleman Khan, Pakistan should have at least 200 dams.[5]
Justice Mansoor Ali Shah was not satisfied with the implementation of the NCCP and its Framework and stated that Pakistan needed to move from ‘environmental justice’ towards ‘climate change justice’. He directed that each ministry and department should nominate one focal person who would have the task of working closely with the Ministry of Climate Change and ensure that his or her ministry or department worked towards implementation of the NCCP and its Framework. The court also formed a Climate Change Commission.
The Commission submitted its findings in the form of a report. According to the report, even two years after the launch of the NCCP, the ministries and the departments were not familiar with it. Moreover, it drew attention to the lack of coordination between the ministries and the departments. To strengthen coordination and monitoring, it suggested setting up a permanent statutory body: the Climate Change Authority. This body would provide a forum to the ministries and the departments to engage in discussion regarding climate change issues. The Authority would ensure regular meetings, progress of which would be made public. However, the Commission did accept that setting up such an authority would require time and financial resources as well as legislative and executive action. Therefore, it was agreed that the existing forums such as the Prime Minister’s Task Force on Climate Change and the National Climate Change Implementation Committees should be utilized in the meanwhile. Both these bodies should ensure that the ‘priority actions’ recommended in the Framework be completed latest by the 30th of June, 2016. Moreover, they should start review of the ‘short-term actions’ and set targets for their completion by the year 2019.
Thus far, hardly any progress related to the implementation of NCCP has been made public knowledge. The 2016 Act comprises of the recommendations put forward by the Commission such as the establishment of Climate Change Authority, Council and Fund – actions already ordered by the LHC and pending since then. Hence, whilst the legislators are gloating over enactment of the Climate Change Act, special attention needs to be paid to its enforcement. Otherwise, this legislation will just be another reason why Pakistan ranks 109 out of 113 countries on World Justice Project’s Regulatory Enforcement Factor and 106 overall on the Rule of Law Index 2016.
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References
[1] IPCC, 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, R.K. Pachauri and L.A. Meyer (eds.)]. IPCC, Geneva, Switzerland, 151 pp.
[2] Shehla Zia v. WAPDA, (1994) 46 PLD (SC) 693
[3] Writ Petition No.7955/2015 2
[4] International Commission on Large Dams (ICOLD). Number of Dams by Country Members. [online] Available at: http://www.icold-cigb.org/GB/World_register/general_synthesis.asp?IDA=206 [Accessed 19 Aug. 2016].
[5] Haq, S. (2016). A trillion dollars lost due to lack of water reservoirs. The Express Tribune. [online] Available at: http://tribune.com.pk/story/1020959/economic-loss-a-trillion-dollars-lost-due-to-lack-of-water-reservoirs/ [Accessed 19 Aug. 2016].
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