“Climate action is not optional, it’s an imperative,” remarked the Secretary-General of the United Nations to world leaders at the Climate Action Summit during COP29 on November 12, 2024, in Baku, Azerbaijan.
Environmental destruction is no longer a distant concern; it has escalated into an urgent global crisis, with impacts felt worldwide. In the developed world, governments are increasingly categorizing severe ecological harm as a crime on par with genocide and crimes against humanity—a phenomenon referred to as ecocide. As of 2023, ecocide has been recognized as a crime in one form or another in 11 countries, with discussions ongoing in many others. Belgium, for example, has emerged as a recent leader in the European Union by criminalizing ecocide under Article 94 of its new Criminal Code in early 2024. This provision defines ecocide as the deliberate infliction of serious, widespread, and long-term environmental damage, punishable by up to 20 years of imprisonment for individuals and fines of up to €1.6 million (approximately $1.69 million) for corporations. This bold move reflects the growing recognition that environmental harm must be addressed with the same legal rigor as other grave offenses.
In stark contrast, Pakistan, where the effects of environmental degradation are devastatingly visible, has lagged in ensuring an effective legal response. On November 15, 2024, Pakistan’s Punjab province declared a health emergency in major cities, leading to a complete lockdown due to toxic smog escalating into a critical health crisis. Fair Finance Pakistan estimates that air pollution causes at least 128,000 deaths annually, with the actual toll likely much higher. According to the Air Quality Life Index, air pollution in Pakistan shortens average life expectancy by 3.9 years, with Lahore, the capital of Punjab province, experiencing a reduction of 7 years. In addition, the catastrophic floods of 2022 affected 33 million people, displaced eight million, and resulted in more than 1,730 deaths and billions of dollars in financial damage. This occurred after the massive floods of 2010, which affected over 20 million people, causing more than 1,700 deaths and incurring billions in damages. Despite these devastating realities, Pakistan’s legal framework remains insufficient to protect the environment.
Pakistan recently enshrined Article 9A in its Constitution through the Twenty Sixth Constitutional Amendment in October 2024, thereby guaranteeing the right to a clean, healthy, and sustainable environment. This provision builds on earlier jurisprudence, notably the Shehla Zia v. WAPDA case (PLD 1994 SC 693), where the Supreme Court interpreted the right to life under Article 9 to include environmental protection. However, the effectiveness of this constitutional provision remains to be seen. The World Justice Project’s Rule of Law Index of 2024 highlights significant gaps in implementation, with Pakistan ranking 125th on the Fundamental Rights Index. This ranking indicates substantial challenges in protecting constitutional rights, whereas the country fares slightly better on the Criminal Justice Index. These rankings suggest that while issues persist with both fundamental rights and criminal law, the latter may offer more actionable avenues for addressing environmental concerns.
There is a growing demand for stricter penalties for those who violate environmental standards, with calls for fines and sentencing to more accurately reflect the gravity of environmental offenses. Ali et al., (2022), for instance, have explored the role of criminal law in addressing environmental issues in Pakistan, arguing that environmental crimes should be treated equivalently to other crimes. However, states often resort to criminal law as a last measure for tackling serious environmental problems. The current environmental situation indicates that it is an appropriate time to consider criminal law as a last resort.
Existing criminal provisions, however, remain inadequate. For instance, Section 278 of the Pakistan Penal Code (PPC) criminalizes acts that ‘vitiate the atmosphere’ but imposes a penalty of merely PKR 1,500 (approximately $5.40), a sum insufficient to serve as an effective deterrent. These minimal fines fail to address the scale of the environmental crisis and do little to deter harmful practices contributing to Pakistan’s pollution and environmental disasters. While Pakistan’s ranking in criminal justice suggests some level of enforcement, the penalties under its criminal code are inadequate for the severity of the environmental harm faced.
Criminalization in modern regulatory law serves two key purposes. First, it conveys a high degree of societal condemnation that no other officially sanctioned measure can provide. Second, it acts as the strongest available deterrent. Given the existing penal sanctions in Pakistan’s environmental laws, one might question the need to further strengthen criminal provisions. To understand why, it is necessary to distinguish between criminalization within environmental law and its function in general criminal law. General criminal law, operates on principles of certainty, including:
- proof beyond a reasonable doubt;
- fault-based liability;
- legal clarity; and
- judicial independence.
Environmental law, on the other hand, in situations where strict liability applies and concrete scientific evidence is typically required, often resorts to regulatory solutions based on administrative decision-making when such evidence is uncertain or incomplete. These solutions are flexible, responsive, and often pre-emptive. Such characteristics allow environmental law to prioritize prevention and negotiation over punitive measures. Therefore, criminal sanctions within environmental law typically serve as a last resort within an enforcement hierarchy, applied only in the most serious cases. This model often leads to negotiated or administrative sanctions, particularly when dealing with corporate offenders who have substantial resources. Such sanctions signal that the behavior, while hazardous, does not yet warrant the stigma of criminal prosecution. However, this flexibility comes at a cost: the lack of integration with general criminal law risks weakening both the deterrent effect of environmental law and the moral force of criminal law.
As Professor Richard explains:
“Criminal law requires more demanding proof to convict, but environmental law makes such a showing problematic because of scientific uncertainties and fragmented decision-making authority.”
This scientific uncertainty and fragmented decision-making further complicate enforcement, creating gaps that environmental law alone cannot address. Strengthening general criminal law provisions can fill these gaps, ensuring that serious environmental offenses receive appropriate condemnation and penalties. By integrating the stability and rigor of general criminal law with the flexibility of environmental regulation, authorities can enhance accountability and deterrence, reinforcing societal commitment to environmental protection.
The gap between symbolic constitutional guarantees and effective legal mechanisms for enforcement in Pakistan, as evident from the aforementioned ranking, demands strengthening criminal law to introduce hefty fines and imprisonment for severe environmental offenses in order to seek a more immediate and practical solution. Criminal laws operate closer to the source of harmful actions and are easier to enforce without needing complex judicial interventions. For instance, fining or arresting someone for polluting air by burning toxic materials is more straightforward than invoking a constitutional right in court, which requires demonstrating systemic harm and navigating complex judicial processes. Moreover, criminalizing acts of ecocide with significant penalties for corporations and individuals responsible for serious environmental harm could act as a deterrent, holding perpetrators accountable for the damage they cause to the health of the planet and its inhabitants.
While Article 9A outlines a crucial long-term vision for environmental sustainability, the strengthening of criminal provisions offers a more effective, immediate tool for addressing pressing environmental issues. By amending Section 278 of the PPC and implementing stringent penalties for environmental violations, Pakistan can take instant steps to address its ongoing environmental crisis. This approach would not only align the country with global trends in environmental justice but also convey the necessity of urgent and enforceable action to safeguard the health and future of its population.
Constitutional rights, environmental law, and criminal law reforms are not opposing forces but rather complementary instruments for addressing environmental challenges. While the long-term vision of Article 9A lays the groundwork for a rights-based framework, environmental law needs to be flexible, responsive, and pre-emptive and must be able to operate in the face of the shifting sands of scientific knowledge. The immediate effectiveness of criminal law, such as Section 278, offers direct and enforceable solutions to environmental degradation—facilitating both long-term progress and immediate action. Together, they ultimately form the ‘toolbox’ of environmental regulation, with the potential to combat Pakistan’s ongoing environmental crisis.
References
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