Environment and the 18th Amendment

Environmental pollution and ecology used to be listed at number 24 of the Concurrent Legislative List of Schedule IV of the Constitution of Pakistan. Under the 18th amendment, the entire Concurrent List has been omitted. What this means is that the provincial governments have an historic opportunity to re-write their role and function and prepare for the devastating effects of climate change.

Under the constitution, the ability of the federal or provincial governments to legislate on any particular subject or issue is clearly set out. Items in the Federal Legislative List — things like customs duties and foreign affairs — can only be legislated upon by parliament in Islamabad and not any of the provincial assemblies. Anything in the Concurrent Legislative List — like the environment, for example — could be legislated by both, and anything not on either was the exclusive jurisdiction of provincial assemblies.

The 18th amendment does away with all the entries in the Concurrent List. Now, under the constitution, the parliament in Islamabad is competent to legislate only on matters in the Federal Concurrent List and the provinces have the power to legislate on anything that isn’t on the Federal Concurrent List.

The Pakistan Environmental Protection Act, 1997 (Pepa) was enacted by parliament in Islamabad as the environment was a subject on the Concurrent List. It envisioned a federal environment protection agency in Islamabad and environment protection agencies in each of the provinces to enforce the provisions of the law. Later, after the Local Government Ordinances of 2001, the enforcement of environmental issues was further devolved to the district level.

The regulatory arrangement sat at odds with the needs and demands of enforcement. First, not all of the federal EPA’s powers and functions were delegated to provincial EPAs. Then, of course, was the fact that Pepa did not envision a sub-delegation to district level. Grey areas in the law are never a good thing, unless you’re a lawyer. Most environmental enforcement action winds up in court and, as a result, never really gets resolved.

Another reason for the weakness in the EPAs was the fact that, under Pepa, they weren’t financially independent. I have lost count of the number of times environmental approval of government projects of government-backed projects have been accorded as a matter of routine because the EPAs were not keen to bite the hands that fed them. The environment and the climate change are the most important and pressing issues in Pakistan today.  They tower over everything else. Pollution and environmental degradation cost the economy a billion rupees a day. Most of the people in hospitals are there because their drinking water is filthy. Each year, hundreds of thousands die due to contamination. Millions suffer from respiratory disease. Climate change is only going to make things worse. Pakistan is one of the countries the UN expects will be the hardest hit. There is going to be water stress, followed by food scarcity and then widespread energy shortages (worse, much worse than now). There will be spread of epidemic disease. The ecosystem will gradually waste away and all these things will increase the rural to urban migration, putting stress on urban areas, housing, sanitation, sewage. You get the picture.

The devolution of power to the provinces by the 18th amendment is the perfect opportunity for provincial governments to step up and respond to these challenges. Provincial EPAs need not worry about delegation of power: the provincial assembly can confer it onto them. District officers (environment) can be given clear-cut powers. Financial independence can be granted. And, most importantly, there is a chance to re-write the Rules of Business. This is the little book, written in 1974 (that’s before I was born), that spells out the responsibility of each provincial department. A little bit of pro-activity and answering the challenges of the environment and climate change can be the means of bringing government into the 21st century.

Published in The Exprss Tribune, July 3^rd, 2010.