On Friday, 30 August 2019, the Lahore High Court passed a significant judgment [1] mandating and directing the Government and all concerned ministries to undertake the exercise of tree plantation all over Lahore.
In an instance of public interest litigation, in the case titled Sheikh Asim Farooq v Federation of Pakistan etc., W.P. 192069/2018, the Lahore High Court was approached with the following prayer to issue a writ of mandamus in the following terms:
- (a) Appraise as to how the National Climate Change Policy, 2012, the National Forest Policy, 2015 and the Forest Policy Statement, 1999 have been implemented to increase the forest cover in Pakistan and Punjab;
- (b) Implement the Forest Act, 1927 (the “Forest Act”) and the Punjab Plantation and Maintenance of Trees Act, 1974 (the “Trees Act”) by planting trees;
- (c) Provide reasons for drastic reduction in forest cover in Pakistan particularly in Punjab;
- (d) Increase the forest cover to reach the minimum satisfactory standards of 20-25% necessary for a balanced economy;
- (e) Present a time-line map for the said purposes, and
- (f) initiate appropriate proceedings against the delinquent officers who have failed to discharge their duties.
The petitioners’ placed specific emphasis upon the public trust doctrine and the need to improve tree plantation and implementation of the National Climate Change Policy and the National Forest Plan. The petitioners submitted that mass deforestation has reduced forest area in Pakistan to 1.9% and that the Government is duty-bound to preserve these natural resources for the benefit of the general public. A number of cases on public trust [2] were cited at the Bar. Supreme Court judgments in Shehla Zia v WAPDA [3] , General Secretary Salt Miners Labour Union (CBA) v The Director, Industries and Mineral Department Lahore [4] and the Cutting of Trees for the Canal Widening Project case [5] were also relied upon to emphasize the requirement of a clean, safe and conducive environment for the citizens of Pakistan.
The contentions of the petitioners were comprehensively addressed in the 78 page judgment authored by Justice Jawad Hassan. The single Bench of the Court endorsed the petition as raising issues of public importance [6]. Then he proceeded to consider the applicable provisions of the Constitution and concluded that the requirement for forestation pertains to the following Constitutional provisions [7] :
- “Statutory Provisions and Fundamental Rights"
Article 9 (Right of Life Liberty):
- 9. Security of person No person shall be deprived of life or liberty save in accordance with law.
Article 14 (Right of Dignity):
- 14. Inviolability of dignity of man, etc.
- (1)The dignity of man and, subject to law, the privacy of home, shall be inviolable.
- (2) No person shall be subjected to torture for the purpose of extracting evidence.
Article 26 (Right of Access to Public Places of Entertainment):
- 26. Non-discrimination in respect of access to public places.
- (1) In respect of access to places of public entertainment or resort, not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of race, religion, caste, sex, residence or place of birth.
- (2) Nothing in clause (1) shall prevent the State from making any special provision for women and children.
Article 38(b) (Provision of Available Leisure Places):
- 38. Promotion of social and economic well-being of the people The State shall—
- (a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants;
- (b) provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure; ….
Article 151 further provides:
- 151. Inter-Provincial trade ….
- (4) An Act of a Provincial Assembly which imposes any reasonable restriction in the interest of public health, public order or morality, or for the purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of any essential commodity shall not, if it was made with the consent of the President, be invalid….
With specific reference to the applicability of Article 9 of the Constitution, the Court held that afforestation undoubtedly bore a nexus with the right to life and every citizen of Pakistan is entitled to a peaceful and safe environment [8]. He also noted that the doctrine of public trust finds support in the IUCN World Declaration on the Environmental Rule of Law (Principle 5), Rio Declaration, 1992 (Principle 10) and the Stockholm Declaration, 1972. The judgment then shifts focus to domestic statutes and instruments on the subject in the form of the Forest Act, The Punjab Plantation and Maintenance of Trees Act, The Parks and Horticulture Authority Act, The Punjab Environmental Protection Act, The Lahore Development Authority Act, The Punjab Development of Cities Act, Punjab Local Government Act, Punjab Village Forest Rules and the National Climate Change Policy, The National Forest Policy, the Forest Policy Statement, Policy on Controlling Smog, Punjab Environment Policy, Punjab Forest Policy (Draft), Punjab Urban and Peri-Urban Policy (Draft), Punjab Clean Air Action Plan (Draft) and the Punjab Rules of Business.
After analyzing all the above mentioned law, it was concluded that the concerned departments legally responsible under the relevant laws had failed to perform the duties entrusted to them. Justice Jawwad Hassan observed that a policy for plantation of trees was imperative and that the Urban Trees Plantation Policy was an appropriate starting point.
The directions issued by the Court in the nature of continuing mandamus are manifold and state that in order to safely manage, conserve, sustain, maintain, protect and grow forests and plant trees in urban cities, the Government and other local authorities under their respective laws are bound by the following directions:
- (1) All the applicable laws and the relevant directions and judgments of the Hon‘ble Supreme Court and High Court mentioned herein above, shall be implemented in letter and spirit in order to plant, protect and preserve the forest.
- (2) All the Respondents shall take steps to protect, manage and conserve the forests and trees in the Urban Areas, in fact make manifest and obvious efforts, to enlarge the forests and trees in Pakistan and the Punjab.
- (3) The requirement for planting three (3) trees per acre by the occupier of a land (Section 3 of the Trees Act) and the penalty of one (1) rupee per tree (Section 4 of the Trees Act) may be revised.
- (4) Every responsible Ministry, Division, Department and Authority etc. shall publish the yearly report in which it shall highlight the expansion of the forest area, tree plantation campaign in the Urban Areas and also the action taken by them in compliance of the said laws.
- (5) The competent authority is directed to impose the penalty against the relevant officers for omission of their duties, if any, under the respective laws as well as the disciplinary laws and also against the public for cutting the trees.
- (6) The Secretary Cooperative and Registrar Cooperative shall issue directions to the housing societies and authorities for (i) planting at least two (2) trees in the green belt in front of each house mentioning in their allotment letters and bye-laws of the society (ii) impose heavy penalties and punishments for cutting the same at least Rs.25,000/- per tree and to (iii) monitor the trees through respective officers of the society/authority. The treatment and maintenance of the trees will be the sole responsibility of the society/authority concerned.
- (7) The Punjab Government is also directed to revise and amend such laws where clear direction and command is not entrusted to any authority as under the Punjab Rules of Business, the Secretary Forest, the Secretary Cooperative and the Local Government etc. have clear mandate to make laws and policies, under Schedule-II of the Punjab Government Rules of Business.
- (8) It was noted during the hearing that due to the efforts of the Government and other Departments, this year massive tree plantation took place. The same or more effort must be done and monitored by the relevant authorities each year through proper book logging and designated officers of the area to count, monitor, manage trees every week and submit report and status of the same to the Head of the society/authority for publishing in their annual report. The relevant authority should also number the trees to keep the track of each tree in urban areas (streets, road, parks, market and green belts).
- (9) The Department shall, through the media and other means, inform the public and create awareness, including lodging a complaint for any violation of the law for cutting of the trees to the concerned person who maintains data and manages trees and they will take strict action through respective laws. Every area shall have a person to file complaint depending on the jurisdiction of the area and duties of the officers. The Urban Plantation Policy shall be consulted by all the departments.
- (10) The Local Government, PHA, DHA, LDA and all others authorities/societies, Secretary Forest and other relevant authorities are directed to define a mechanism for urban forestation by learning from Urban Plantation Policy.
- (11) A specific officer may be appointed in a designated area to deal with the issues related to the trees and forest, as the case maybe. If any citizen in their societies or locality feel the need of plantation of trees, such relevant officer may address grievance of the citizen by planting the requisite number of trees by the required authority otherwise they will contact PHA which shall have designated officers for doing such along with Forest Department. These trees then shall be again monitored and managed by the said authority.
- (12) All the authorities, including DHA, LDA, MDA, FDA and other relevant authorities, are directed to make and adopt comprehensive policies with respect to plantation of trees in urban areas with experience of Urban Plantation Policy and make their own policy under respective laws and immediately start planting of trees with the request to PHA and other departments and maintain the same by imposing fine and penalty to the officers of the area or any citizen.
- (13) The school, colleges, higher education institutes, hospitals, parking sites etc. are specifically directed to make policy for planting the trees in open spaces and waiting areas/car parks.
- (14) The Government of the Punjab through its respective departments shall make laws in imposing penalty and heavy fine for cutting, removing and damaging any tree with permission of the concerned authority including EPA, PHA and consider all mitigating measures at the time of public hearing of any project such as Initial Environmental Examination (IEA) and Environmental Impact Assessment (EIA).
Although the directions have been issued, it remains to be seen as to how much they are complied with. An annual report must be published by the DHA, LDA, MDA, FDA and other relevant authorities to enable periodic review of the performance of each entity in giving effect to the judgment of the High Court. Penal consequences have also been stipulated in the form of a fine of Rs. 25,000 for each tree cut down.
The judgment of the High Court is no doubt a welcome addition to our recent jurisprudence on environmental protection. It is not the first time in recent history that the preservation of the environment has been brought to the fore with respect to Lahore. The Canal Widening case in 2011 and Maple Leaf Cement Factory v EPA [9] in 2017 are indicative of this realization. Needless to say, tree plantation is a requirement that extends not only to all areas of Punjab but all areas of Pakistan. Because in the apt words of E.O. Wilson:
- "The fate of the creation is the fate of humanity" [10]
References:
1 https://sys.lhc.gov.pk/appjudgments/2019LHC3025.pdf
2 Sindh Institute of Urology v Nestle Milkpak Limited, 2005 CLC 424; Nestle Milkpak Limited v Sindh Institute of Urology, PLD 2007 Karachi 11.
3 PLD 1994 SC 693
4 1994 SCMR 2061
5 2011 SCMR 1743
6 n.1, para 22.
7 Ibid, para 24
8 Ibid.
9 PLD 2018 Lahore 255
10 The Creation – An Appeal to save life on Earth, E.O. Wilson.