FINAL DRAFT- NOVEMBER, 2012

Legal Implications of the 18th Amendment relating to Environment

A. Background The Constitution (Eighteenth Amendment) Bill, 2010 was passed by the National Assembly of Pakistan on April 8, 2010 and by the Senate on April 15, 2010. It received the assent of the President and became an Act of Parliament on April 19, 2010. Amongst the most important provisions of the Constitution (Eighteenth Amendment) Act [hereinafter "the 18th Amendment"] are those relating to amendment of the Fourth Schedule of the Constitution, which contained the Federal Legislative List (Part I and Part II) ["FLL Part I and FLL Part II"] and Concurrent Legislative List [CLL]. By omitting the CLL and amending FLL Part I and FLL Part II, the 18th Amendment has fundamentally altered the division of legislative powers between Parliament and the Provincial Assemblies, resulting in a significant increase in the extent of Provincial autonomy. 'Environmental pollution and ecology' was one of the subjects in the CLL which now stands in the legislative domain of the Provincial Assemblies. This has far-reaching implications for environmental governance in the country, not only in terms of future law-making, but also for implementation of existing environmental laws, rules and regulations and Pakistan's obligations under multi-national environmental agreements. This paper seeks to identify, analyze and explain these implications. B. Constitutional position prior to 18th Amendment 'Environment' was not mentioned in the Federal, Provincial or Concurrent Legislative Lists of the 1956 Constitution, or in the (sole) Legislative List in the 1962 Constitution which enumerated matters with respect to which the Central Legislature had exclusive power to make laws. Hence 'Environment' was in the exclusive jurisdiction of the Provincial Legislature under these Constitutions. Both Constitutions however empowered Parliament / the Central Legislature to make laws for implementation of decisions of international organizations and agreements with other countries. In the 1973 Constitution, as originally enacted, 'Environmental pollution and ecology' was mentioned at entry no. 24 of the CLL in the Fourth Schedule, thereby empowering both Parliament and the Provincial Assemblies to make laws with respect to matters relating thereto. It was in the exercise of these powers that the

Pakistan Environmental Protection Act [PEPA] was enacted by Parliament in 1997. This superseded and repealed the Pakistan Environmental Protection Ordinance [PEPO] promulgated in 1983. C. Provisions of 18th Amendment having impact on 'Environment' The provision of the 18 th Amendment which has a direct impact on the subject of 'Environment' is section 101(3), whereby the CLL and the entries thereto from 1 to 47 (both inclusive) have been omitted from the Fourth Schedule. However in addition there are a number of provisions with an indirect impact, all of which have been listed in Annexure A. These provisions are discussed below. Full text of the amended Articles and other Articles cited in the discussion is at Annexure B, for ease of reference. D. Impact of 18th Amendment 1. Subject of 'Environment' Omission of the CLL (including entry 24 'Environmental pollution and ecology') from the Fourth Schedule vide section 101(3) of the 18th Amendment, read with Article 142 (c) as amended by section 49 ibid, means that now a Provincial Assembly shall, and Parliament shall not, have power to make laws with respect to the subject of 'Environment' [except for the Islamabad Capital Territory (ICT) / areas in the Federation not included in any Province]. However it is important to note that legislative competence of Parliament and the Provincial Assemblies may overlap, inasmuch as laws relating to certain entries in the FLL Part I and Part II which are in the exclusive legislative domain of Parliament may also relate to the subject of 'Environment'. These entries, included vide section 101 of the 18th Amendment, are as follows:(a) Entry no. 32 in FLL Part I: 'International treaties, conventions and agreements and International arbitration'; (b) Entry no. 7 in FLL Part II: 'National planning and national economic coordination including planning and coordination of scientific and technological research'; (c) Entry no. 13 in FLL Part II: 'Inter-provincial matters and co-ordination' In addition the following entries existing in the pre-18 th Amendment Constitution are also relevant:-

(i) Entry no. 3 in FLL Part I: 'External affairs; the implementing of treaties and agreements, including educational and cultural pacts and

agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan.' (ii) Entry no. 58 in FLL Part I: 'Matters which under the Constitution are within the legislative competence of Majlis- e-Shoora (Parliament) or relate to the Federation'. (iii) Entry no. 59 in FLL Part I and entry no. 18 in FLL Part II: 'Matters & (iv) incidental or ancillary to any matter enumerated in this Part.' Article 142(a) provides that Parliament has exclusive power to make laws with respect to any matter in the FLL Part I and Part II. [The Council of Common Interests shall formulate policies in relation to matters in FLL Part II and shall exercise supervision and control over related institutions, as per Article 154(1)]. Article 142 (d) provides that Parliament shall also have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province (e.g. the ICT).

In the light of the above provisions, Parliament has exclusive power to make laws to implement international treaties, conventions and agreements to which Pakistan is a party, or for national planning, or for inter-provincial matters and coordination, or other matters falling within the legislative competence of Parliament, or which are incidental or ancillary to any matter enumerated in the FLL Part I or Part II. These laws may well relate to 'Environment' directly or indirectly, such as laws required to implement the multi-national environmental agreements (MEAs) to which Parliament is a party.

It may also be noted that Article 144 (as amended by section 51 ibid) provides that even one Provincial Assembly may pass a resolution requesting Parliament to make a law regulating any matter not mentioned in the FLL (e.g. 'Environment'). [Previously resolution of at least two Provincial Assemblies was required.] The Provincial Assembly concerned may amend or repeal any such law enacted by Parliament. 2. PEPA 1997 Article 270AA (6), as amended by section 96 of the 18th Amendment, provides that notwithstanding omission of the CLL, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) which were in force immediately before the commencement of the 18th Amendment, shall continue to remain in force until altered, repealed or

amended by the competent authority. The Explanation to Article 270AA (6) defines "competent authority' to be: (a) in respect of all laws, the appropriate Legislature; and (b) in respect of notifications and rules etc., the authority in which the power to make, alter, repeal or amend the same notifications and rules etc vests under the law. In the light of the said provisions of Article 270AA (6), PEPA 1997 shall continue to remain in force until repealed or amended by the competent authority, which is now the Provincial Assembly in respect of each Province. and Parliament in respect of the ICT and other areas in the Federation not forming part on any Province [Article 142 (c) and (d)]. PEPA 1997 can be repealed or amended, vis--vis its application to a particular Province, through a Provincial Act enacted by the Provincial Assembly concerned. The only restriction is contained in Article 143 of the Constitution (as amended by section 50 of the 18th Amendment). This lays down that if the provision of a Provincial Act is repugnant to any provision of a Federal Act which Parliament is competent to enact, the Federal Act shall prevail and the Provincial Act shall, to the extent of the repugnancy, be void. PEPA 1997 can, and should, be amended by Parliament for purposes of application to the ICT / other areas in the Federation not included in any Province. Other provisions, which relate to matters falling in the FLL, can be retained or suitably amended and made applicable to the whole of Pakistan. 3. PEPA Rules and Regulations In accordance with Article 270AA(6), all Rules and Regulations made / notified under PEPA 1997 shall also continue to remain in force until altered, repealed or amended by the competent authority, as defined therein and discussed above. A list of these Rules and Regulations is at Annexure C. Vide identical notifications dated October 27, 1998 various powers of the Pakistan Environmental Protection Agency, (henceforth "Pak EPA") under PEPA 1997 were delegated by the Federal Government to the Provincial Governments under section 26 ibid, including section 6 (Functions of the Federal agency), section 7 (Powers of the Federal Agency), section 12 [Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA)], section 14 (Handling of hazardous substances), and section 15 (Regulation of motor vehicles). However, the rule-making power of the Federal Government under section 31 and regulation-making power of the Federal Agency (Pakistan Environmental Protection Agency, henceforth "Pak EPA") under section 33 were not so delegated. No Provincial rule or regulation has therefore been prescribed thus far. Clearly, sections 31 and 33 should be amended (by Act of the Provincial Assembly) to empower the Provincial

Government to make or amend rules and to empower the Provincial Agencies to make or amend regulations in future. Meanwhile, legal implications of the 18th Amendment for each of these Rules / Regulations are as follows: (i) National Environmental Quality Standards (Certification of Environmental Laboratories) Regulations, 2000. Powers under section 6(1)(k) of PEPA 1997 for certification of environmental laboratories have been delegated to the Provinces, which can continue to exercise the same. As mentioned above, any change in these Regulations can only be made after Provincial EPAs have been duly authorized in this behalf by Acts of the Provincial Assemblies. Pak EPA will continue to exercise these powers for laboratories situated within the ICT. (ii) Environmental Tribunal Rules, 1999 (notified on 18th March, 2000). Terms and conditions of the Chairperson and Members of the Environmental Tribunals and other provisions of these Rules remain unaffected by the 18th Amendment. (iii) PEPA (Review of IEE and EIA) Regulations, 2000. Powers under section 12 of PEPA 1997 relating to review of Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA) have been delegated to the Provinces, subject to the condition that these shall not be exercised in respect of projects of the Armed Forces of Pakistan or projects having transitional and inter-provincial adverse environmental effects. Again, the delegated powers may continue to be exercised till modified by the Provincial EPAs after enactment of Provincial laws. (iv) Provincial Sustainable Development Fund Board (Procedure) Rules, 2001. Management of the Fund established under section 9 of PEPA 1997 has been entrusted to a Board constituted under section 10, comprising of officers and non-official nominees of the Provincial Government. The Rules relate to functioning of the said Board, and remain unaffected. (v) Environmental Samples Rules, 2001. Powers under clauses (f), (g), (h), (i) and (j) of section 7 relating to supply of information, search, taking and testing of samples, and confiscation etc have been delegated to the Provinces and may continue to be exercised till amended after enactment of Provincial laws.

(vi) National Environmental Quality Standards (Self-Monitoring and Reporting by Industry) Rules, 2001. These Rules relate to submission of Environmental Monitoring Reports to the Federal Agency, i.e. Pak EPA. Although powers under clauses (e) and (f) of section 6 relating to preparation, revision and enforcement of the National Environmental Quality Standards (NEQS) stand delegated to the Provinces, the Rules require modification to permit filing of the Reports with the Provincial EPAs also. This can be done after necessary amendment in section 33, as mentioned above. (vii) Pollution Charge for Industry (Calculation and Collection) Rules, 2001 These Rules provide Guidelines for calculation and collection of the pollution charge payable by an industrial unit under section 11 for discharges or emissions at levels in excess of the NEQS /established standards. While section 11 needs to be amended to empower Provincial Governments to levy the charge, the Rules refer to, and require action by, the Provincial EPAs, and therefore can be applied without any immediate modification. (viii) Provincial Sustainable Development Fund (Utilization) Rules, 2003. These Rules prescribe procedure for filing, appraisal and sanction of project proposals for utilization of financial assistance from the Fund. As action is to be taken by the Provincial EPAs/ government departments, no immediate amendment is required. (ix) Pakistan Biosafety Rules, 2005. These Rules provide for establishment of National Biosafety Committee, Technical Advisory Committee and Institutional Biosafety Committee and grant of licences by Pak EPA for dealing with living modified organisms etc.. Appropriate amendments are required to adapt the provisions in the light of devolution, including empowering of the Provincial EPAs. (x) Hospital Waste Management Rules, 2005.

These Rules lay down detailed procedures to be followed by every hospital / health care and biomedical facility for disposal of waste. Separate Hospital Waste Management Advisory Committees have been constituted for the ICT and the Provinces. Minimal amendment is required: Rule 25 has to be modified to allow the Provincial Government to exempt any class of hospitals in the Province and the Federal Government to exempt any class of hospitals in the ICT. 4. National Environmental Quality Standards

The NEQS were initially notified in 1993 and partially amended in 1995 under PEPO 1983. They were again amended in 2000, 2009 and 2010 under PEPA 1997 (see Annexure D). They continue to remain binding and enforceable, as per provisions of Article 270AA (6). Pak EPA is empowered to prepare, establish and revise NEQS with the approval of the Pakistan Environmental Protection Council (PEPC) under section 6(1)(e) of PEPA 1997, and to ensure enforcement of the NEQS under section 6(1)(f) ibid. As mentioned above, these powers have been delegated to the Provincial Governments / Provincial EPAs. Hence NEQS can be enforced by the Provincial EPAs in the Provinces. However NEQS can only be prepared, established and revised with the approval of the PEPC (whose Members have a two-year term). Arguably, some of the functions and powers of the PEPC mentioned in section 4 of PEPA 1997 can be said to relate to entries in the FLL (e.g. "coordinate and supervise enforcement of the provisions of this Act"; "approve comprehensive national environmental policies."; "co-ordinate integration of the principles and concerns of sustainable development into national development plans and policies", etc.). The PEPC can therefore be retained with suitably amended functions / powers for the ICT, and with reduced functions, relating to matters falling in the FLL, for the Provinces. Appropriate Federal legislation can be enacted for this purpose. However, post-devolution it is also clearly necessary to constitute, through Provincial Acts, Provincial Environmental Protection Councils with functions / powers corresponding to those specified for the PEPC in section 4 ibid, including approval of Provincial Environmental Quality Standards (PEQS) / revised NEQS, if required, to be prepared by the Provincial EPAs. 5. Executive authority of the Provinces relating to the Environment Article 137 declares that subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws. In other words the executive authority of a Province is co-terminus with the legislative competence of the Provincial Assembly. The proviso to Article 137 however states that such executive authority shall be subject to, and limited by, the executive authority conferred upon the Federal Government by the Constitution or by law in any matter with respect to which both Parliament and a Provincial Assembly have power to make laws. (After omission of the CLL, the only 3 subjects with respect to which both Parliament and a Provincial Assembly have power to make laws are criminal law, criminal procedure and evidence as provided in Article 142 (b), amended by section 49 of the 18th Amendment.) Article 147 provides that a Provincial Government may, with the consent of the Federal Government, entrust functions in relation to any matter

to which its executive authority extends to the Federal Government or to its officers. A proviso added by section 52 of the 18th Amendment requires that the functions so entrusted shall be got ratified from the Provincial Assembly within 60 days. Hence the Constitution provides for 'reverse' devolution also. A Province can not only request Parliament to make a law pertaining to 'Environment' through resolution of the Provincial Assembly under Article 144, it can also entrust its existing functions under PEPA 1997 to the Federal Government or its officers under Article 147, subject to ratification by the Provincial Assembly within 60 days. 6. Environmental Tribunals Section 20 of PEPA 1997 empowers the Federal Government to establish Environmental Tribunals. In exercise of this power, the Ministry of Law, Government of Pakistan constituted Tribunals in 1999 at Karachi [with territorial jurisdiction over Sindh and Balochistan ] and Lahore [with territorial jurisdiction over Punjab, NWFP (now Khyber Pakhtunkhwa), and the Islamabad Capital Territory]. In accordance with the provisions of Article 270AA (6) referred to above, these Tribunals can continue to function even after the 18 th Amendment. In this case also each Province should make appropriate amendment in section 20 ibid by a Provincial Act empowering the Provincial Government to establish Environmental Tribunals in future. 7. Multinational Environmental Agreements As discussed above, entry no. 32 in FLL Part I ('International treaties, conventions and agreements) and entry no. 3 in FLL Part I ('the implementing of treaties and agreements), mean that Parliament has exclusive powers to make laws to implement international treaties, conventions and agreements to which Pakistan is a party, including MEAs. Section 31 of PEPA 1997 empowers the Federal Government to make rules for implementing the provisions of the international environmental agreements specified in the Schedule. The Schedule lists 14 environmental conventions and agreements to which Pakistan is a party. Brief description of each of these 14 agreements is at Annexure E. Section 32 ibid further empowers the Federal Government to amend the said Schedule by adding to, or modifying or omitting any entry in it.

The intention of the Legislature as expressed in these provisions is to enable the Federal Government to implement international environmental agreements to which Pakistan is a party through rules rather than by Acts of

Parliament, unless legally necessary. However, this power has not yet been exercised and no such rules have been framed. E. Role of Provincial and successor Federal authorities As decided by the 18th Amendment Implementation Commission and approved by the Federal Cabinet, the Ministry of Environment (MoE) stands 'devolved' to the Provinces with effect from July 1, 2011. Vide Cabinet Secretariat Notification No.4-9/2011-Min.I. dated June 29, 2011 (Annexure F), functions previously being dealt with by the MoE were either devolved to the Provinces, or were retained at the Federal level and 're-located' in other Divisions. On October 26, 2011, another Notification bearing No.4-14/2011-Min.I. (Annexure G) was issued, whereby some of the "re-located" functions have been assigned to the newly-created National Disaster Management Division (NDMD) and the National Heritage and Integration Division. The combined effect of the 2 Notifications vis--vis assignment of the functions of the erstwhile MoE is as follows:1. Provinces
(a)

(National) policy, plans, strategies and programmes regarding:

(i) Improvement in environment conditions of air, water and land; (ii) Incorporation of environmental concerns in development schemes; and (iii) Energy conservations; (b) (c) (d) Forestry training, education and research; Survey and research in flora and fauna: and National Council for Conservation of Wildlife in Pakistan.

2. Khyber Pakhtunkhwa Pakistan Forest Institute 3. National Disaster Management Division; (a) Pakistan Environmental Protection Council; [N.B. In Notification dated 29th June, 2011 "Secretariat of Pakistan Environmental Protection Council under the Pakistan Environmental Act, 1997 (XXXIV of 1997)" was assigned to the Inter-Provincial Coordination Division]; (b) Pakistan Environmental Protection Agency;

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[N.B. In Notification dated 29th June, 2011 "Pakistan Environmental Protection Agency" was assigned to the Capital Administration and Development Division]; (c) Pakistan Environmental Planning and Architectural Consultants Limited (PEPAC); [N.B. In Notification dated 29th June, 2011 PEPAC was assigned to the Planning and Development Division for "winding up"]; (d) Global Environmental Impact Study Centre, Islamabad; and [N.B. In Notification dated 29th June, 2011 GEISC was assigned to the Planning and Development Division]; (e) Policy, legislation, plans, strategies and programmes with regard to Disaster Management including Environmental Protection and Preservation [N.B. In Notification dated 29th June, 2011 "National policy, plans, strategies and programmes regarding environmental pollution, ecology, forestry, wildlife, biodiversity, climate change and desertification" was assigned to the Planning and Development Division]. (f) Co-ordination, monitoring and implementation of environment agreements with other countries, international agencies and forums. [N.B. In Notification dated 29th June, 2011 this function was assigned to the Planning and Development Division, incorrectly mentioned as Economic Affairs Division in Notification dated 26th October, 2011]; 4. Planning and Development Division National policy, plans, strategies and programmes regarding environmental pollution, ecology, forestry, wildlife, biodiversity, climate change and desertification. 5. National Heritage and Integration Division (a) Quaid-e-Azam Mazar Management Board (QMMB); and (b) Quaid-e-Azam Memorial Fund (QMF). [N.B. In Notification dated 29th June, 2011 QMMB and QMF were assigned to the Inter-Provincial Coordination Division]; 6. Ministry of Water and Power

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National Energy Conservation Centre (ENERCON). 7. Ministry of Foreign Affairs Hunting areas for foreign dignitaries through the concerned Provinces. 8. Ministry of Ports Marine Biological Research Laboratory, Karachi. The devolution / assignment of matters previously dealt with by the MoE vide Notification dated 29th June, 2011 was disputed and controversial, and has become even more so after Notification dated 26th October, 2011. Many NGOs have been opposing the very concept of devolution of the MoE, basically on the grounds that because of lack of capacity and readiness in the Provinces, it was necessary to maintain national-level institutions for: (a) effective policy-making and inter-provincial co-ordination; (b) negotiation, oversight, monitoring and reporting of implementation of MEAs; and (c) liaison with donors for receiving aid for specific programmes and projects. Concerned environmentalists have gone to the extent of terming devolution to the Provinces and division of responsibilities amongst various successor Federal authorities as "demolition and distribution" and have predicted that another constitutional amendment will be required soon to reverse the whole process, after considerable wastage of time and money. In order to remove these misgivings and doubts, it was necessary to clearly assign functions / subjects which can, and are, being retained at the Federal level to the concerned Divisions, ensuring that there is no ambiguity or overlap. However the new Notification dated 26th October, 2011 has not only added to the prevailing uncertainty and confusion regarding assignment of MoE functions, but the regrouping of certain functions under a new Ministry of Disaster Management (along with the creation of 3 other Ministries) is also a negation of one of the benefits of devolution, viz savings in administrative expenditure as a result of abolition of the devolved Ministries. Also, is there an implicit acknowledgement of the state of affairs in the Environment sector by assigning "Environmental Protection and Preservation" to the Ministry of Disaster Management? The Notification dated 29th June, 2011 assigned "National policy, plans, strategies and programmes regarding environmental pollution, ecology, forestry, wildlife, biodiversity, climate change and desertification" to the Planning and Development Division. The Notification dated 26th October, 2011 has assigned "Policy, legislation, plans, strategies and programmes with regard to Disaster Management including Environmental Protection and Preservation" (which are not shown as assigned to any Division at present) to the new National Disaster Management Division (whereas the name of the new Ministry / Division has been mentioned as Ministry of Disaster Management / Disaster Management Division in the same Notification).

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Since the subsequent Notification does not state that it supersedes the earlier Notification, presumably "National policy, plans, strategies and programmes regarding environmental pollution, ecology, forestry, wildlife, biodiversity, climate change and desertification" still remains assigned to the Planning and Development Division. If so, it is strange that "Environmental pollution" should be assigned to the Planning and Development Division while "Environmental Protection and Preservation" should be assigned to the National Disaster Management Division (NDMD). Moreover "Improvement in environmental conditions" and "Incorporation of environmental concerns in development schemes" have been devolved to the Provinces. Clarification in this regard is required from the Cabinet Division / concerned Ministries to remove the confusion arising out of these ambiguities and apparent overlap. There are other problems requiring clarification / resolution. If "Energy conservations" has been devolved, why has ENERCON been retained and assigned to the Ministry of Water and Power? The Punjab Government has also protested against the assignment of the matter relating to allocation of hunting areas for foreign dignitaries to the Ministry of Foreign Affairs. It has been asserted that in addition to forestry and wildlife, environmental pollution and ecology are also now no longer on the FLL and therefore the executive authority of the Federation does not extend to these subjects or incidental / ancillary matters. Hence the allocation of potential sites as hunting areas and identification of negative areas for Houbara bustard fall within the sole authority of the Provincial Governments. The retention of any such authority by the Federation would therefore be unconstitutional. The dispute remains unresolved. Matters relating to MEAs previously assigned to the Planning and Development Division have now been assigned to the new NDMD. Reporting and other duties of a Contracting Party under each MEA will be performed by the Federal Government through the NDMD instead of the MoE. As implementation will take place in the Provinces, it is important to keep effective liaison with the Provincial Governments / EPAs (and for the ICT with Pak EPA) .to monitor progress and to send timely reports to the MEA secretariats The NDMD should review action taken thus far in implementation of the MEAs mentioned in the Schedule and initiate action where required. It may also add new MEAs (to which Pakistan Is a Party) to the Schedule, as permitted under section 32 of PEPA 1997. Clearly the success of the entire devolution process initiated by the 18 th Amendment can only be judged after assessing the results achieved, in terms of the improvements and benefits accruing from policy making and implementation at the provincial level. This is a huge challenge for the Provincial Governments, given the tremendous euphoria and high expectations of the general public from the quantum increase in provincial autonomy, as well as likely political backlash should it cause

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administrative chaos. In the circumstances political will and resolve to show positive results will not be lacking in the Provinces. What is required is the building and enhancement of capacity on priority basis to enable the efficient and effective handling of the post-devolution increased workload. Insofar as the 'Environment' sector is concerned, training workshops should be organized urgently to facilitate imparting of knowledge and transfer of knowhow to Provincial authorities in respect of matters with which they are unfamiliar. This should not be too difficult a task, since most of the matters now formally assigned to the Provinces relating to this sector were already their responsibility and were being undertaken at the provincial level, albeit not with the effectiveness and success required. It is important to remember that unless trained/experienced staff of the erstwhile MoE is transferred to the relevant successor Federal authority in accordance with their area of expertise, training workshops may be required for existing staff of these authorities also.

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