The Supreme Court on Saturday upheld the Punjab government’s decision to declare a "negative area", saying that water problems could not be resolved through technical solutions alone, but required broader recognition that they were inherently ecological, political and social issues.
"In adjudicating water and water-related cases, judges should be mindful of the essential and inseparable connection that water has with the environment and land uses, and should avoid adjudicating those cases in isolation or as merely a sectoral matter concerning only water,” read a 17-page verdict authored by Justice Syed Mansoor Ali Shah.
The judgment came over a petition filed by a cement factory against a Punjab government notification wherein it was stated that establishment of new cement plants, and enlargement and expansion of existing ones would not be allowed in the “negative area” falling in the Chakwal and Khushab districts.
“Water justice requires appreciation that there are no easy, simple or singular solutions to the water crisis,” the verdict read.
The court raised a question as to whether or not the provincial government could declare an area to be “negative” under the ordinance.
The judgment observed that zoning of areas into positive and negative is not absolute.
"The ban under the notification is not etched in stone [but it] may be lifted if the government is of the view that the valley, in this specific case, stands recharged with water and nature has become resilient to allow sustainable development,” the verdict read.
"The organisation and planning of future growth cannot be frozen in time and is never intended to be static. Zoning allows the flexibility needed to respond to change. The choices that govern a particular territorial zoning may not hold good indefinitely."
The judgment further read that the precautionary principle should be applied to the resolution of water-related disputes.
It added that notwithstanding scientific uncertainty or complexity regarding the existence or extent of risks of serious or irreversible harm to water, human health or the environment, judges should uphold or order the taking of the necessary protective measures having regard to the best available scientific evidence.
“Consistent with the principle in dubio pro natura, in case of uncertainty, water and environmental controversies before the courts should be resolved, and the applicable laws interpreted, in a way most likely to protect and conserve water resources and related ecosystems."
The court also observed that the fragility of the negative area also needed to be examined in the larger context of climate change.
“The environmental issues initially brought to our courts were local geographical issues, be it air pollution, urban planning, water scarcity, deforestation or noise pollution. But now climate change has a bearing on these issues.”
One of the serious climate change threats to Pakistan is the rising temperatures resulting in enhanced heat and water-stressed conditions, particularly in arid and semi-arid regions, leading to reduced agricultural productivity.
“Notably, the Salt Range has an arid climate characterized by lack of water,” the verdict read.
According to the National Climate Change Policy, 2012, Pakistan should continue on a development path, the more immediate and pressing task is to prepare itself for adaptation to climate change.
“The country is bearing huge socioeconomic costs of environmental degradation, it is globally ranked in the top ten countries most affected by climate change in the past 20 years and has lost 0.53% per unit GDP, suffered economic losses worth $3.792 billion and witnessed 152 extreme weather events from 1999 to 2018,” the court noted.
"Only by devising and implementing appropriate adaptation measures will it be possible to ensure water, food and energy security for the country. The goal of the policy is to ensure that climate change is mainstreamed in the economically and socially vulnerable sectors of the economy and to steer Pakistan towards climate resilient development.
“The notification, in the current facts of the case, is a climate resilient measure and in step with the National Climate Change Policy and the Constitution.”
Justice Shah noted that another important dimension of climate change was intergenerational justice and the need for climate democracy.
“The tragedy is that tomorrow’s generations aren’t here to challenge this pillaging of their inheritance. The great silent majority of future generations is rendered powerless and needs a voice. This court should be mindful that its decisions also adjudicate upon the rights of the future generations of this country.”
The judgment pointed out that it was important to question ourselves as to how would the future generations look back on us and what legacy we leave for them.
“This court and the courts around the globe have a role to play in reducing the effects of climate change for our generation and for the generations to come.
Through our pen and jurisprudential fiat, we need to decolonise our future generations from the wrath of climate change, by upholding climate justice at all times.”
The judge observed that democracy, anywhere in the world was pillared on the rule of law, which substantially meant rights based rule of law rather than rule based; which guaranteed fundamental values of morality, justice, and human rights, with a proper balance between these and other needs of the society.
"Post climate change, democracies have to be redesigned and restructured to become more climate resilient and the fundamental principle of rule of law has to recognise the urgent need to combat climate change,” the verdict read.
“Robust democracies need to be climate democracies in order to save the world and our further generations from being colonised at the hands of climate change.
The premabular constitutional value of democracy under our Constitution is in effect climate democracy, if we wish to actualise our Constitution and the fundamental rights guaranteed under the Constitution for ourselves and our future generations,” it added.
"Janine Benyus suggests we learn from nature’s 3.8 billion years of evolution. How is it that other species have learned to survive and thrive for 10,000 generations or more? Well, it’s by taking care of the place that would take care of their offspring, by living within the ecosystem in which they are embedded, by knowing not to foul the nest.”