Right to a Clean and Healthy Environment in Pakistan: A Constitutional and Judicial Analysis

Abstract

This paper discusses the right to clean and healthy environment in Pakistan as a constitutional claim, a doctrine constructed by the judiciary and as an administrative governance challenge paying attention to the way in which the harm caused to the environment has been translated into the infringement of fundamental rights and how such translation has changed with the explicit constitutionalization of the right to the environment. In the past the Constitution of Pakistan has lacked express fundamental right to clean environment, and the environmental rights jurisprudence has been developed by the superior courts, by interpreting the right to life and dignity, to incorporate the environmental quality, more often through a landmark case, like Shehla Zia v. WAPDA and litigation regarding the climate, like Leghari v. Federation of Pakistan.  A turning point came with the Constitution (Twenty-sixth Amendment) Act, 2024, which added Article 9A, which states: Clean and healthy environment in which it is declared that Every person shall be entitled to a clean, healthy and sustainable environment; at the same time, it amended Articles 184 and 199. The paper holds a thesis that the constitutionalism of the environment has taken a twofold basis in Pakistan; (i) a proclaimed basic entitlement (Article 9A) which is universal in nature (Every person) and (ii) an established body of interpretation doctrine on life, dignity, trust of people, caution and sustainable progress and equity of generations. However, it is also found in the article that there has always been an existent implementation gap due to regulatory capacity, institutional capture, fragmented federal-provincial governance in the wake of devolution, and the constraints of adjudication as a mechanism of managing complex ecological risk, despite the efforts of specialized benches and commissions to close the law-administration divide.