Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Haroon Farooq VS Respondent: Government Of Punjab through Chief Secretary and 9 others
Court Name: Lahore High Court Judge(s): Shahid Karim Title:Haroon Farooq vs Government Of Punjab through Chief Secretary and 9
others Case No.: Writ Petition No. 227807 of 2018 Date of Judgment:2021-09-09 Reported As: 2023 CLC 1 Result: Order accordingly Judgment ORDER SHAHID KARIM, J. This litigation was brought as a social action petition (and connected petitions W.P No. 2132 of 2020, W.P No.67602 of 2019 and W.P No.71047 of 2019) with climate change as the centerpiece. It is asserted that the Federal Government and the Province of Punjab have taken insufficient steps for countering the climate crises and the petitioner is actuated by failure of these governments to develop disaster management plans. The primary theme of these petitions is that directions be issued by this Court to compel the State to invest in climate mitigation strategies. It was obvious that the subject, matter of these petitions broached issues which gave rise to real and immediate concern for an environmental Mid social framework to be put in place to reduce greenhouse gas emissions and building resilience, all while developing economic, environmental, health and social co-benefits. 2. An exhaustive scientific assessme nt in 2018 warned that a failure to keep the average temperature from rising more than 1.5 degree celcius compared with the start of the industrial age, could have catastrophic results, including inundation of coastal cities and crop failures in various parts of the world. A landmark assessment by the Intergovernmental Panel on Climate Change was published on 9th August, 2021 (IPCC, 2021). The sobering report approved by 195 nations shines a harsh spotlight on governments dithering in the face of mounting evidence that climate change is an existential threat. It concluded that "all but a tiny fraction of warming so far is unequivocally caused by human activities" and that "even if the 1.5C target humanity is now poised to overshoot is miraculously achieved, it would still generated heatwaves, rainfall, drought and other extreme weather unprecedented in the observational record". The crux of IPCC, 2021 is that Earth's average
---
## Page 2
temperature could reach 1.5 degree celcuis above pre-industrial levels around 2030, a decade earlier than projected only three years ago. In an opinion published in the New York Times of July 24-25, 2021 by respected environmentalist Susan Joy Hassol, Kristie Ebi and Yaryna Serkez, the situation precipitated by global warming has been summed up: "Summers that seemed exceedingly hot 50 years ago are becoming much more commonplace. The extreme heat of that era -- which had a chance of occurring of only one-tenth of I percent during the summer season is now reached more than 20 percent of the time, according to calculations by the climate scientist James Hansen. That's 200 times as often. And nights are warning faster than days; at nearly twice the rate. So much for relief." "Heat is one of the deadliest kinds of extreme weather in the United States. From 1991 through 2018, 37 percent of heat-related summer deaths were attributable to human-caused climate change, according to a study published in the journal Nature Climate Change in May." These events are emblematic of a larger trend in extreme heat, driven by global warming. And it's not just a climate problem, as those mortality figures show, it can be a public health catastrophe. In addition to heat stress, extreme heat can worsen chronic conditions such as cardiovascular, respiratory and cerebrovascular disease, and diabetes-related conditions. The study in Nature Climate Change found that human-induced climate change increased the annual average temperature globally in the warm season by nearly three degrees, to 73.4 degrees Fahrenheit, across 732 locations around the world. The intense heat that hit the Pacific Northwest in late June and early July would have been virtually impossible in the absence of human-caused climate change, according to an analysis by an international group of scientists working with the group World Weather Attribution. Scientists say they had never seen such a jump in record temperatures like this -- breaking records by up to 11 degrees prompting a co-leader at World Weather Attribution to suggest to the magazine Scientific American that the region may have crossed a threshold in which these kinds of events become much more common. Climate change doesn't always proceed in a linear fashion and often exceeds the predictions of computer models." 3. Our Constitution is a social compact between the State and the people. It contains rights which the State is under obligation to enforce and a failure to do so spawns rights-based environmental litigation. We may refer to various provisions in the Constitution which give rise to such rights to inhere in the people of Pakistan and for which the State is obligated to take real and immediate measures so that climate crisis can be averted in all its manifestations. Article 3 of the Constitution requires the State to ensure elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, that is, from each according to his ability to each according to his work. This concept of elimination of exploitation can only be fulfilled if the State takes meaningful measures for the control of environmental degradation and for climate justice to be enforced so that the basic principle enshrined in Article 3 can be achieved. Article 9 of the Constitution provides that: "9. Security of person:- No person Shall he deprived of life or liberty save in accordance with law." 4. There is a plethora of precedents which have given an expansive view to the term 'life' as used in Article 9 which clearly includes life which is free from hazards caused by environmental pollution in order to nurture healthy and robust life for the people of Pakistan. Article 38 which is one of the principles of policy, inter alia, obliges the State to secure the well-being of the people to provide basic necessities of life such as food, clothing, housing, education and medical relief, irrespective of sex, caste, creed or race. Again this can only be achieved by the State by ensuring the minimum standards comprised in the term 'life' and to prevent the climate crisis so that human activity can be carried on without the harmful effects of severe weather events which are caused by climate change. The concept of penumbras has been employed to enlarge the meaning of life and
---
## Page 3
doubtless, if climate crisis triggers life-changing events, then the right conferred by Article 9 is in serious jeopardy. 5. Water supplies and its preservation has received special attention of the framers of the Constitution by the enactment of Article 155 which reads as under:- "155. Complaints as to interference with water supplies: (1) If the interests of a Province, the Federal Capital or the Federally Administered Tribal Areas, or any of the inhabitants thereof, in water from any natural source of supply [or reservoir] have been or are likely to be affected prejudicially by -- (a) any executive act or legislation taken or passed or proposed to be taken or passed, or (b) the failure of any authority to exercise any of its powers with respect to the use and distribution or control of water from that source, the Federal Government or the Provincial Government concerned may make a complaint in writing to the Council. (2) Upon receiving such complaint, the Council shall, after having considered the matter, either give its decision or request the President to appoint a commission consisting of such persons having special knowledge and experience in irrigation, engineering, administration, finance or law as he may think fit, hereinafter referred to as the Commission. (3) Until Majlis-e-Shoora (Parliament)] makes provision by law in this behalf, the provisions of the Pakistan Commissions of Inquiry Act, 1956, as in force immediately before the commencing day shall apply to the Council or the Commission as if the Council or the Commission were a Commission appointed under that Act to which all the provisions of section 5 thereof applied and upon which the power contemplated by section 10A thereof had been conferred. (4) After considering the report and supplementary report, if any of the Commission, the Council shall record its decision on all matters referred to the Commission. (5) Notwithstanding any law to the contrary, but subject to the provisions of clause (5) of Article 154, it shall be the duty of the Federal Government and the Provincial Government concerned in the matter in issue to give effect to the decision of the Council faithfully according to its terms and tenor. (6) No proceeding shall lie before any court at the instance of any party to a matter which is or has been in issue before the Council, or of any person whatsoever, in respect of a matter which is actually or has been or might or ought to have been a proper subject of complaint to the Council under this Article. 6. This litigation is primary concerned with the preservation of water resources and the groundwater levels which have seen a stunning depletion over the years. The Constitution mandates that the interest of a Province or any of the inhabitants should not be affected prejudicially by the failure of any authority to exercise any of its powers with respect to the use and the distribution or control of water from any natural source of supply. This has been made one of the subject matters to be taken cognizance of by the Council of common interests upon a complaint in this regard. Alternatively, this can also give rise to litigation of the present nature to be brought before the courts for the redressal of those grievances and for climate justice to be enforced by the courts. This may be the result of citizens being frustrated by government inaction and threatened by climate change impacts on their lives and human rights and the courts have, in turn, issued groundbreaking climate decisions. 7. It was said by A. Guterres (Secretary General of United Nations) that: "Climate change is, quite simply an existential threat for most life on the planet -including, and especially, the life of humankind. And human are causing it." (Key note address. Speech given at the R20 Austria World Summit Vienna. May 15, 2018) 8. In a report compiled by Intergovernmental Panel on Climate Change (IPCC) 2018 human activity has already caused a 1C warming above the pre-industrial mean temperature. This 1C shift has
---
## Page 4
triggered increasingly frequent and intense extreme weather events, rising sea-levels, and diminishing Arctic sea ice. Across Asia and the Pacific, populations endure severe weather, heat stress, flooding, droughts and sea level rise. According to the World Health Organization (WHO) it is estimated that climate change causes 150000 deaths annually, including deaths from extreme weather (The Health And Environment Linkages Initiative. Climate Change). The WHO further notes that air pollution significantly contributed to by fossil fuels kills around 7 million annually in 2020 and according to the report compiled in the year 2018, the WHO concluded that 9 out of 10 people worldwide breathe polluted air. In its previous report compiled by IPCC in 2014, (Climate Change 2014: Synthesis Report Contribution of Working Groups I, II, III to the Fifth Assessment Report of the IPCC. Geneva) it was stated that: "Human influence on the climate system is clear and recent anthropogenic emissions of greenhouse gases are the highest in history and that the level of warming was unprecedented over decades to Millennia." 9. In December 2020, Asian Development Bank (ADB) published a Report Series (The ADB report) consisting of four reports entitled "Climate Change, Coming Soon to a Court Near You", which is a flagship publication series of the law and policy reform program under the office of the General Counsel of ADB. It describes climate change as a clarion call for judges and alludes to the role of judges to the contribution of better climate outcomes in the following words: "Judges' role in government makes them gatekeepers, even climate emergency managers Judges are: central to holding governments accountable for meeting policy commitments and complying with legal obligations on climate change, the environment, and sustainable development, and thereby shaping legal and policy frameworks; admitting relevant and credible scientific evidence for climate change in courtrooms and making judicial findings of fact about climate change; which can elevate the national discourse on climate change (indeed, courts have successfully incorporated international scientific consensus, synthesized by the Intergovernmental Panel on Climate Change, into domestic legal common ground, ensuring that advancements in climate science filter into local law); and balancing outcomes and protecting citizens' fundamental, constitutional and other legal rights, frequently, closing the gaps through which people and ecosystems fall. These functions demonstrate that judges have "a vital role in climate governance in Asia and the Pacific. Supporting judges to respond to climate litigation contributes to better quality climate governance." "...Significant judicial advancements have often rested on the shoulders of jurists who were willing to apply new consciousness and imagination to existing principles to resolve society's pressing problems. We need new perspectives to create climate justice. Justice will only be fair if it considers diverse perspectives and rights--those of women, children, elders, indigenous peoples, the differently abled, and future generations, as well as those of the traditional power structures." 10. The report gives a compilation of climate litigation in Asia and the Pacific and the rest of the world and notes that judges have a vital role in climate governance as well as the fact that climate litigation is growing in Asia and the Pacific and around the world. And so judges and quasi judicial decision-makers must have excess to climate law resources. The ADB report is a leading resource of knowledge on climate litigation in Asia as well as the National and International climate change legal frameworks. The purpose of ADB's report on climate law and litigation has been stated as: "Frustrated by government inaction on climate change, citizens around the world are turning to their courts, commissions, and tribunals, unleashing lawsuits across the globe. The number of cases is growing and will likely grow exponentially as climate impacts intensify. Typically, national climate impacts and circumstances shape domestic litigation. These cases look for action,
---
## Page 5
climate justice and sustainable development; and protection of rights, review of decisions, and compensation. Climate change is coming soon to a courtroom near you. Judges and members of specialized tribunals will need resources to respond to climate litigation. In this series of reports, ADB has two overarching objectives: I. Supporting judiciaries and legal professionals by sharing knowledge and ideas. Although this report uses the term "judges," may other legal professionals are sitting in tribunals and commissions throughout Asia and the Pacific who need information about climate change. While these tribunals and commissions may be limited to exercising quasi-judicial powers, they are important components of their national legal system. These tribunals and commission apply similar standards of rigor to evidence and procedure as courts, and their findings have valuable impacts on climate change regulation. II. Showcasing climate and environmental jurisprudence from Asia and the Pacific. We believe this sharing of information and enrich the global discourse on climate litigation and regulation. 11. Apart from sharing knowledge and ideas, the ADB report showcases climate and environmental jurisprudence from Asia and the Pacific and summarizes the effect of climate litigation and its basis in the following words: "Climate litigation in Asia is also more likely to occur as public interest litigation, founded on a constitutional or statutory right. South Asia boasts excellent examples of environmental constitutionalism--rights-based environmental litigation. In such cases, courts take a more liberal approach to standing because petitioners can hinge their petitions on constitutional rights to life or the environment. It helps that many jurisdictions across Asia and the Pacific have modern constitutions that embed rights. (Report Three surveys positional rights across the region.) In our view, judicial approaches and principles applied in environmental constitutionalism can also be applied in the climate change context because climate change threatens natural rights, including the right to life. As natural right exist regardless of constitutional and legal gaps, judicial reliance on them could prove fruitful, and Asian jurisprudence has much to say on this topic. For example, in 1993, the Philippine Supreme Court declared that the right to a balanced and healthful ecology "concerns nothing less than self-preservation and self-prepetuation." Such rights, therefore, "need not even be written in the Constitution for they are assumed to exist from the inception of humankind". 12. A reference to the report has been made in order to establish that climate litigation is on the rise in Asia and the courts are leading the way in the area of rights-based environmental litigation. Since in most of these countries including Pakistan the source of these rights is derived from the Constitution, the ADB report describes this area of climate litigation as environmental constitutionalism. In conclusion, Report One refers to the blunt plea of Greta Thunberg; a youth climate activist at the World Economic Forum in 2019, who said that: "Adults keep saying we owe it to the young people to give them hope. But I don't want your hope. I don't want you to be hopeful. I want you to panic. I want you to feel the fear I feel every day. And then I want you to act. I want you to act as if you would in a crisis. I want you to act as if the house was on fire--because it is." And alludes to the important role of Courts as guardians of justice (and by extension) climate justice: "... Courts are the guardians of justice, rights, and equity. Courts are responsible for referring government decisions and protecting fundamental rights. Around the world, courts are heeding this call. Courts are shaping climate justice upholding the rule of law, and they are weaving this concept into their national lexicon. In ordering their governments to do their part in responding to climate change, courts are defining what it means to do one's part.
---
## Page 6
Courts, commissions, and tribunals have an important role to play in making findings of fact about climate science. The rigor applied in these forums, particularly in relation to facts, veracity, and integrity, is persuasive in the halls of government and the world at large. Judges, commissions, and Tribunal members are expected to make findings of fact and law in an impartial setting. Their findings of fact on climate change hold weight because courts and other semi judicial bodies are trusted public institutions..." Courts may do just that--ethically and equitably balance economic development with social well- being and environmental protection. Science must underpin these considerations. For justice to be impartial in climate cases we must clearly see and hear the science." It relies upon the wise utterance of Elijaih E. Commings (American politician and civil rights advocate in comments made during a congressional house committee hearing) to bring home the concept of inter-generational equity, who once said: "Our children are the living messages we send to a future we will never see. The question is, what will they leave us and how will we send them into that future? Will we send them strong? Will we send them hopeful? Will we rob them of their destiny? Will we rob them of their dreams? No, we will not do that." 13. The present litigation is an aspect of climate litigation in Asia. More appropriately this litigation seeks climate change adaptation. It hinges on fundamental, human and constitutional rights. The ADB report makes an attempt at defining climate litigation broadly by expanding on the previously authoritative works that have limited the scope of climate litigation to those "cases brought before administrative, 'judicial and other investigatory bodies that raise issues of law on fact regarding the science of climate change and climate change litigation and adaptation efforts". (United Nations Environmental Programme, 2017. The Status of Climate Change Litigation, A Global Review. Nairobi. p.10), to encompass the following: "Climate change litigation is defined broadly in this report as any case that is brought before judicial courts and administrative or specialized tribunals that (1) raises climate change as a central issue; (ii) raises climate change as a peripheral issue; or (iii) does not explicitly raise climate change but has ramification for climate change mitigation or adaptation efforts, e.g., recognition of intergenerational responsibility. The figure shows the three elements of the definition." 14. In the recent past, Pakistan has put in place legal frameworks for tackling rapidly depleting water resources as part of broader policies on climate change. The watershed moment was the adoption of National Water Policy, 2018 (The Policy) by the Government of Pakistan. It was described as 'The Declaration of Water Emergency' and proclaimed as 'our promise to the coming generations'. The preamble captured the grim situation by stating that: The irrigation network of Pakistan is one of the largest contiguous irrigated systems in the World. The snow-clad peaks of the mountain ranges in the North continuously re-charge the system. The descending snow-melt and monsoon waters flow into the country's Indus River System and its tributaries. Passing through the plateau and the great plains across the Indus Valley, the rivers join up to form the Indus that eventually drains into the Arabian Sea in the South. Irrigated agriculture is the backbone of the country's economy, and consumes around 95 percent of the nation's water resources, the balance is used for domestic and industrial requirements. With rapidly growing population, Pakistan is heading towards a situation of water shortage and by corollary, a threat of food insecurity. Per capita surface water availability has declined from 5,260 cubic meters per year in 1951 to around 1,000 cubic meters in 2016. This quantity is likely to further drop to about 860 cubic meters by 2025 marking our transition from a "water stressed" to a "water scarce" country (The minimum water requirement to avoid food and health implications of water
---
## Page 7
scarcity's 1,000 cubic meters per capita per year). The situation calls for rapid development and management of the country's water resources on a war footing. Water resources are inextricably linked with climate and the impending climate change scenario has serious implications for Pakistan's water resources. The changing and unpredictable precipitation patterns may have serious consequences, including flash floods in the north and increasingly prolonged droughts in the south. As the glaciers retreat, more glacial lakes will form, increasing the risk of Glacial Lake Outburst Floods (GLOF), which are already becoming increasingly common and hazardous in the Northern parts of the country. Only by devising and implementing appropriate adaptation measures will it be possible to ensure water, food and energy security for the country as well as minimize the impact of natural disasters." "But now a water crisis is descending like a thunderbolt. While the continuing increase in population at an annual rate of over 2% combined with rapid and un-regulated urbanization has already pushed Pakistan into the category of water stressed countries, the phenomenon of 'climate change is causing faster melting of the high altitude glaciers, on which the Indus Basin system is dependent and is also raising sea levels. Pakistan is located in one of the three most vulnerable regions in the world in terms of climate change threats of increasing frequency and intensity of floods, prolonged droughts and the frightening possibility of the melting of the Himalayan Ice cap." The main concerns were also listed in the Policy as: Main Concerns Some of the specific issues concerning the water sector are: i. Fresh water being a finite resource is progressively becoming more scarce due to persistent increases in its competing demands; ii. Water scarcity can adversely affect the health and well-being of the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.