Older legal instruments and court decisions employ conventions of usage and punctuation that are in many cases archaic. In the interest of

Transcription

1 Older legal instruments and court decisions employ conventions of usage and punctuation that are in many cases archaic. In the interest of authenticity this usage has been retained in the titles of materials reviewed and discussed in this volume. Similarly, until the year 1989, the names of the provinces of Balochistan and Sindh were written Baluchistan and Sind the official spelling used by the British colonial administration. This spelling has not been retained in the titles reproduced here. Rather, modern spelling is used throughout the text. The process of amending laws in Pakistan is often carried out in stages by means of specific instruments intended to revise a single law or through amending and adapting legislation that covers multiple legal instruments. The same holds true for repealing laws. As a result, it is sometimes difficult to determine the status of a particular statute. While every effort has been made to ensure that information about the status of legal instruments is up to date, IUCN, the International Union for Conservation of Nature does not guarantee that every law reviewed in this volume remains in force as of June IUCN is not responsible for any loss to any person caused by any shortcoming, defect or inaccuracy in this volume.

2 ABBREVIATIONS BLGO Balochistan Local Government Ordinance 2001 CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora EIA environmental impact assessment EPA Environmental Protection Agency GMO genetically modified organism IEE initial environmental examination IUCN International Union for Conservation of Nature and Natural Resources NEQS National Environmental Quality Standards NWFP North West Frontier Province PATA Provincially Administered Tribal Areas PEPA Pakistan Environmental Protection Act 1997 PPC Pakistan Penal Code SITE Sindh Industrial and Trading Estate SLGO Sindh Local Government Ordinance 2001 SRO statutory regulatory order WAPDA Water and Power Development Authority WP West Pakistan Abbreviations

3 INTRODUCTION TO THE SERIES Under the Pakistan Environmental Protection Act 1997, the term environment is defined to mean air, water, land and layers of the atmosphere; living organisms and inorganic matter; the ecosystem and ecological relationships; buildings, structures, roads, facilities and works; all social and economic conditions affecting community life; and the interrelationship between any of these elements (section 2(x)). In Pakistan, environmental law is thus defined in the broadest sense to include the management of biological and other natural resources as well as the control of pollution and hazardous materials. The environmental legal regime in force in the country today comprises a substantial number of laws covering subjects ranging from species to sectors to activities, and enacted over a period of nearly 150 years. During the last decade, the environmental legal regime has been bolstered by the superior courts which have pressed into service fundamental rights guaranteed to citizens under the Constitution of the Islamic Republic of Pakistan The word life as it is used in the Constitution has been ruled to mean more than mere existence and has, rather, been interpreted to mean quality of life, including the right to a clean and safe environment (PLD 1994 SC 693). Environmental Law in Pakistan is a six-part series, organised as follows: Part 1: Federal, Part 2: Balochistan, Part 3: North West Frontier Province, Part 4: Punjab, Part 5: Sindh, and Part 6: Northern Areas. Each volume reviews and analyses the law governing natural resources, as well as the processes and activities that impact natural resource management. The full text of all legal instruments surveyed can be found at For a fuller understanding of environmental legislation at the sub-national level, the provincial and regional surveys should be read together with the federal review. The process of compiling, writing and editing this series will have taken more than five years by the time it is complete. The authors include legal practitioners and academics belonging to all provinces and territories of Pakistan. They reviewed hundreds of federal and provincial legal instruments to identify statutes that not only govern natural resources directly but also actually or potentially affect natural resource management. Environmental Law in Pakistan is intended to serve as a reference resource for law students and teachers, practising lawyers, lawmakers, judges, administrators, corporate officers, and others who require information on the subject. Every effort has been made to keep the text of the analysis jargonfree so that it is accessible to the widest possible audience. Introduction

4 FOREWORD Balochistan, spatially the largest province of Pakistan with the lowest population, is faced with a multitude of environmental degradation problems accentuated by man-induced processes. Possessing an arid climate, the province is prone to frequent spells of drought, flash floods and earthquakes. The generally rugged and mountainous topography, interspersed with valleys and sand and tidal plains with a 700 km long coastline, make Balochistan rich in biodiversity and natural resources. Variations in physical features and climate have produced diverse landscapes, ecosystems and habitats that are important as sources of livelihood and national and global heritage. Environmental problems in Balochistan have, over the years, not only amplified but become highly intricate and complex due to a host of governance-related issues like misplaced priorities, inappropriate perceptions and evaluations, and the lack of an integrated and holistic approach towards finding solutions. Currently rangeland degradation; the dichotomy of water scarcity and its inefficient use; loss of forests, habitats and biodiversity; wildfires; increased level of natural resources pollution by different development sectors; and a complete lack of awareness towards resource conservation and environmental protection are some of the priority issues that need to be tackled on a war footing. This is particularly of importance when we are living in an era where climate change is becoming a reality and the nation will have to prepare for its consequences. By definition, environmental law is a system of complex and interlocking statutes, common law, treaties, conventions, regulations and policies, all seeking to protect the natural environment which may be affected, impacted or endangered by human activities. While some environmental laws regulate the quantity and nature of impacts of human activities, others are preventive in nature and seek to assess the possible impacts before the human activities can occur. In recent years, environmental laws have also come to be recognised as a critical means to promote sustainable development of societies. I, personally, am of the firm belief that legislation must not be just punitive but encourage positive action, and hence be facilitative in ensuring sustainability in every sector having a bearing on life. The decade of saw the evolution of environmental law as a distinct system in the major industrial economies of the world. Since then, many countries worldwide have formulated excellent environmental laws, though their implementation record has not been very impressive. This has been particularly true in developing countries with high poverty and low literacy levels, and Pakistan is no exception. It is more pronounced in Balochistan. Unfortunately, however, in our society it is the more affluent ones who tend to flout prevalent laws in the environmental sector. Even the government agencies and organisations are found to be either ignoring or defying public laws. I am confident that the uphill task of implementation of environmental laws in such a big area will be accomplished by the concerned departments in collaboration with IUCN who are all making efforts in educating and ensuring compliance with these laws. Balochistan has no dearth of laws and regulations which address environmental issues in different sectors of economy but these are scattered and sometimes difficult to find even for the lawyer community, not to speak of the common man, who is generally ignorant. It is heartening to note that IUCN has taken the noble step to bring the relevant laws together and review them. This excellent and pioneering work will not only fill the information gap leading towards improvements in these laws in the light of developmental activities taking place all around but will also help create much-needed awareness about conservation and sustainable development in this environmentally fragile province. I congratulate IUCN on this work. Justice Mehta Kailash Nath Kohli Chairman, Balochistan Environmental Protection Tribunal May 09, 2008 Foreword

5 ACKNOWLEDGEMENTS The authors of this volume are Mir Aurangzaib, Advocate, Supreme Court of Pakistan, and Professor, University Law College, Quetta; and Ms. Firuza Pastakia, Series Editor, Environmental Law in Pakistan. Authors of other parts of the series who contributed to the Balochistan review are: Professor Ahmed Ali Khan, former Dean, Faculty of Law, University of Peshawar; and Mr. Inayatullah Khan, Lecturer, Faculty of Law, University of Peshawar (Part 3); Mr. Ijaz Ahmed, Partner, Mandviwalla & Zafar, Karachi, and Ms. Muneeza Kazi, former Associate, Mandviwalla & Zafar, Karachi (Part 1 and Part 5); and Mr. Jawad Hassan, Partner, Hassan & Hassan, Lahore; Mr. Ahmed H. Ghazali, Associate, Afridi Shah Minallah, Lahore; and Mr. Shahab Qutub, Associate, Raja Akram Associates, Lahore (Part 6). Individuals who provided input on thematic issues include Ms. Reema Asad, Barrister, Hassan & Hassan, Lahore (the Constitution, legal instruments, court decisions); Mr. Zahid Hamid of Hamid Law Associates, Lahore (forests); and Mr. Waseem Ahmed Shah, Staff Correspondent, Dawn Peshawar Bureau (tribal areas). Surridge and Beecheno, Karachi, and the Library of the Sindh High Court provided assistance in locating copies of legal instruments. The following staff members of IUCN Pakistan spent countless hours coordinating logistical aspects of this review and providing research support: Ms. Dhunmai Cowasjee, former Head, Programme Coordination, Country Office; Mr. Hasan Rizvi, former Head, Education, Communication and Knowledge Management Group, Country Office; Mr. Ibrahim Jan, former Secretary, Country Office; Mr. Mukarram Farooqi, former Information Manager, Country Office; and Ms. Huma Ikramullah, former Deputy Coordinator, Environmental Law Programme, Country Office. As Series Editor, Ms. Firuza Pastakia assured the coherence and consistency of this report with a fine sense for both substance and syntax. Patricia F. Moore Head, IUCN Regional Environmental Law Programme, Asia Series General Editor Acknowledgements

6 1. LEGISLATIVE JURISDICTION When the British quit the Indian Subcontinent in 1947, the Government of India Act 1935, the last pre- Independence constitution of colonial India, served as a provincial constitution for the newly-created state of Pakistan. Subsequently, Pakistani law-makers framed two new Constitutions in 1956 and 1962 before finally approving the Constitution of the Islamic Republic of Pakistan 1973, which remains in force. Legislative jurisdiction, as spelled out in each of these constitutions, has shifted over the years to award or withdraw powers with respect to provincial law-making (see Annex 1). 1.1 NATURAL RESOURCES Legislative authority over natural resources has changed little since 1947, with law-making left mostly up to provincial governments (see Annex 2). This delegation of power dates back to the Government of India Act 1935, which served as the governing basic law for newly created Pakistan. When the Indian subcontinent gained independence from British rule in 1947, law-making for matters related to land rights and tenure was the responsibility of provincial governments. This legislative jurisdiction is specified in the provincial legislative list of the Government of India Act 1935, 1 where land improvement, colonisation, tenancy and the transfer of agricultural property are provincial subjects, as is the compulsory acquisition of land. Under the 1935 Act, the federal government retains the power to legislate for cantonment areas and for land in its own possession, subject to certain limitations. The transfer of property and succession, except in the case of agricultural land, are concurrent subjects, along with the registration of deeds and documents. This division of legislative powers survives more or less unaltered in the Constitution of the Islamic Republic of Pakistan 1956, 2 with the exception of succession, the transfer of non-agricultural property, the registration of deeds and documents, and the compulsory acquisition of land, which become residuary matters and thus exclusively provincial subjects. This legislative jurisdiction is carried into the Constitution of the Republic of Pakistan Compulsory acquisition remains a residuary area under the 1973 Constitution. 4 Succession, the transfer of non-agricultural property, and the registration of deeds and documents, however, once again appear as concurrent subjects, awarding legislative powers to both federal and provincial governments. All other legislative powers specified in the 1935 Act with respect to land and tenure are carried into the legislative lists of the 1973 Constitution unchanged. Under the 1973 Constitution, the federal government retains legislative authority to fix a ceiling on individual holdings of property of any class (article 253(1)). The federal government may acquire property for any purpose mentioned in the legislative lists but must do so through provincial governments, which acquire land on its behalf (article 152). Laws to regulate the sale, mortgage or disposal of government-owned property are to be framed by the government concerned (article 173). Meanwhile, property situated in a Province defined in article 1(2) of the Constitution to exclude the Islamabad Capital Territory and the Federally Administered Tribal Areas as well as such States and territories as are or may be included in Pakistan, whether by accession or otherwise falls under the legislative jurisdiction of the provincial government, except in cases where federal law expressly provides otherwise. The provincial government may also legislate on matters related to ownerless property located in a Province (article 172, read with articles 97 and 137). Forests have remained under the legislative jurisdiction of the provinces since Independence. Under the Government of India Act 1935, law-making for the forest sector is the responsibility of provincial governments, as specified in the provincial legislative list. The subject of forests also appears in the provincial list of the 1956 Constitution, awarding provincial governments exclusive authority to legislate for the sector. Forests are not mentioned in the legislative list of the 1962 Constitution; this Government of India Act 1935, sections 100 and 104, read with the Seventh Schedule. Constitution of the Islamic Republic of Pakistan 1956, articles 106 and 109, read with the Fifth Schedule. Constitution of the Republic of Pakistan 1962, articles 131 and 132, read with the Third Schedule. Constitution of the Islamic Republic of Pakistan 1973, article 142, read with the Fourth Schedule. 1. Legislative Jurisdiction 6

7 allows the provincial government to make laws for the sector although the central government retains the power to legislate in any matter not in the legislative list where the national interest of Pakistan [ ] so requires. In the Constitution of 1973, the subject of forests is not mentioned in either the federal or concurrent list, making legislation for the sector a provincial subject. The topic of fishing and fisheries beyond territorial waters appears in the federal list of the Government of India Act as well as the federal list of the 1956 Constitution but in the 1962 Constitution this subject is excluded from the federal list, transferring legislative authority to the provinces subject to specified restrictions. By 1973, however, fishing beyond territorial waters is once again a federal subject, making fishing and fisheries within territorial waters a provincial legislative matter. Fisheries in general has remained a provincial subject since Independence. It is included in the provincial lists of the Government of India Act and the 1956 Constitution, and omitted from the federal list in the 1962 Constitution. It is also excluded from both the federal and concurrent lists of the 1973 Constitution. Under the Constitution of 1973, shipping and navigation is a concurrent subject, allowing both federal and provincial governments to legislate on matters that indirectly affect fisheries resources. The protection of wild birds and wild animals appears as a provincial subject in the Government of India Act and the 1956 Constitution. It is also a provincial subject under the 1962 Constitution, where it is omitted from the federal list. Wildlife is not specifically mentioned in either of the legislative lists of the 1973 Constitution, making it a provincial matter under the residuary rule. Besides wildlife protection, the prevention of cruelty to animals is listed as a concurrent matter in the 1935 Act. This subject appears in the provincial list of the 1956 Constitution and has subsequently remained a provincial subject, omitted from the federal list in the 1962 Constitution as well as both legislative lists in the 1973 Constitution. Botanical and zoological surveys are not mentioned in the legislative lists of the 1935 Act, allowing the federal or provincial government to frame laws on the subject under specified conditions. In the 1956 Constitution, the subject appears in the provincial list and has since been a provincial matter, excluded from the 1962 and 1973 legislative lists. Protected areas are not specifically mentioned in the Government of India Act, in theory awarding legislative power to either the federal or the provincial government. The subject does not appear in the legislative lists of the Constitutions of 1956 and 1962 where, as a residuary matter, legislative power lies exclusively (1956) or jointly (1962) with provincial governments. The 1973 Constitution does not mention protected areas. Under the residuary rule, the subject is currently treated as a provincial matter. In the Government of India Act, water is mentioned in the provincial list, and includes matters such as supply, storage, canals and drainage. Provincial legislative jurisdiction for water is carried over into the 1956 Constitution and, as a residuary matter subject to specified conditions, into the 1962 Constitution. Freshwater resources are not mentioned in either of the legislative lists of the 1973 Constitution. As such, legislation for this sector falls under the jurisdiction of provincial governments under the residuary rule. The Government of India Act and the Constitutions of 1956 and 1962 make no mention of coastal areas or marine ecosystems. Under the legislative dispensation of the 1935 Act, this allows the federal or provincial government to frame laws on the subject under specified conditions. According to the 1956 and 1962 Constitutions, meanwhile, legislative authority lies exclusively (1956) or jointly (1962) with provincial governments. The subject is not mentioned in the legislative lists of the 1973 Constitution and so is technically a provincial matter. Although legislative powers with respect to specific natural resources lie mostly with the provincial government, the Constitution of 1973 introduces the subject of ecology as a concurrent matter. In theory, this allows both the federal and provincial governments to legislate on natural resources in general, since all natural resources may be included in this category. In practice, the federal government has for the most part abstained from legislating natural resource conservation and use, except in cases that affect international trade or national security, or for matters 1. Legislative Jurisdiction 7

8 considered to be of national importance. Legislative authority with respect to specific natural resources is for the most part under the exclusive purview of provincial governments. Regardless of where legislative jurisdiction lies with respect to natural resources, treaties and agreements with other countries, including international conventions and declarations, have remained under the exclusive legislative authority of the federal government since Independence. In the Government of India Act, the implementing of treaties and agreements with other countries is a federal subject, and the federal government may frame implementing legislation for a province with the prior consent of the governor. In both the 1956 and 1962 Constitutions, making and implementing treaties, conventions, declarations and other agreements with foreign countries is a federal subject but these instruments contain no special provisions requiring provincial consent for framing implementing legislation. Under the 1973 Constitution, making and implementing treaties, conventions, declarations and other agreements is a federal subject with no specific provision or exceptions related to implementing legislation. This allows the federal government to frame laws to implement its obligations under a wide range of international conventions and multilateral environmental agreements concerning the conservation of fauna, non-timber flora and migratory species, the trade in endangered species; the protection of wetlands; and the prevention of marine pollution (see Annex 3). In doing so, the federal government could in theory address the gaps in other federal and provincial legislation governing natural resources. 1.2 PROCESSES AND INSTITUTIONS Processes and institutions that affect natural resources, whether directly or indirectly, are governed by a combination of federal and provincial law (see Annex 2). The subject of urban and rural development is not mentioned in the legislative lists of the Constitution of 1973, and does not appear in the legislative lists of any prior constitutions. With the exception of military land, which has been and remains under federal control, urban and rural development falls within the legislative domain of the provinces. Since Independence, provincial governments have enjoyed exclusive or shared legislative authority over matters related to agriculture. The subject of agriculture appears in the provincial legislative lists of both the 1935 Act and the 1956 Constitution. The subject is omitted from the federal list of the 1962 Constitution, thus becoming a residuary subject over which the provincial government exercises legislative powers subject to specified conditions. Agriculture does not appear in the legislative lists of the 1973 Constitution and so remains under the residuary authority of the province. The federal government may nevertheless frame laws on the subject if two or more provincial assemblies pass resolutions to that effect (article 144). Such laws may be subsequently amended or repealed by the provinces. The transfer of agricultural land is a provincial subject under the 1935 Act and remains so under the 1956 Constitution. The subject is omitted in the 1962 Constitution, becoming a residuary matter, and this is carried over into the 1973 Constitution. Certain aspects of extractive industry fall under the exclusive legislative authority of the federal government, while in other areas the provincial government holds concurrent or residuary powers. This general pattern of legislative authority dates back to the Government of India Act 1935, where the regulation of mines and oilfields, and mineral development in general, are federal subjects to the extent to which such regulation and development is declared by federal law to be expedient in the public interest. Specific areas of control are not specified except in the case of petroleum, the possession, storage and transport of which is a federal subject, and gas and gasworks which are provincial subjects. A similar division of legislative powers is set out in the 1956 Constitution, where provincial authority to regulate and develop mines and minerals is subject to the federal and concurrent lists. Here, specific areas of legislative authority are specified: mineral oil and natural gas appear in the federal list, coal and mineral products (except for mineral oil and natural gas) are concurrent subjects, and gas and 1. Legislative Jurisdiction 8

9 gasworks appear in the provincial list. The 1956 Constitution also introduces the subject of mineral resources used in the generation of nuclear energy, which falls under the exclusive legislative authority of the federal government. The 1962 Constitution contains a single legislative list specifying federal legislative powers. Here, mineral oil and natural gas, as well as minerals used in the production of nuclear energy, are shown as central subjects, with no other areas mentioned. This is the case in the 1973 Constitution as well, where mineral oil, natural gas and minerals used to produce nuclear fuel are listed as federal subjects and no other mineral products are mentioned. Geological surveying, a subject not mentioned in the 1935 Act, has been under the exclusive authority of the federal government since the 1956 Constitution. The regulation of labour and safety in mines and oilfields, meanwhile, starts out as a federal subject in the 1935 Act but is omitted from the 1956 and 1962 Constitutions. Under the 1973 Constitution, however, labour and safety in mines and oilfields is a concurrent subject. The 1973 Constitution requires that net proceeds from federal excise duties levied on natural gas extraction at the source, and royalties collected, are paid to the province in which the well head is located (article 161). Legislative authority over matters related to industries and industrial development generally depends on the nature of the industry concerned. Defence-related industries, for example, have been under the exclusive purview of the federal government since the 1956 Constitution, while the 1973 Constitution introduces the subject of industries for the prosecution of war as a federal matter. In addition, the federal government may by law declare control over certain types of industrial concerns to be expedient in the public interest. This power is introduced in the 1935 Act and appears in the 1973 Constitution, but not in the 1956 or 1962 Constitutions. Under the 1935 Act, provincial powers are exercised subject to the provisions allowing for federal control. This general statement concerning provincial legislative authority is not repeated in any of the subsequent constitutions. The subject of industries in general is mentioned only in the 1956 Constitution, where it appears in the provincial list. Elsewhere, legislative authority is divided in more specific terms. Factories and boilers, for instance, begin as concurrent subjects in the 1935 Act and become provincial subjects in the 1956 Constitution. They are not mentioned in the Constitution of 1962, making them residuary subjects, over which the provincial government exercises legislative authority subject to specified conditions. While factories are also omitted from the legislative lists of the 1973 Constitution, thereby remaining a residuary subject, boilers are listed in the concurrent list of 1973, allowing both federal and provincial governments to exercise legislative authority. The regulation of safety in factories is a subject introduced in the 1973 Constitution and appears in the concurrent list as well. Iron and steel products, meanwhile, appear on the concurrent list of the 1956 Constitution but are not mentioned either in the 1935 Act or in the Constitutions of 1962 and Commercial operations in general are not mentioned as a separate legislative subject. Rather, various aspects of commercial activity, such as banking, monopolies, insurance and trade, are listed. Certain commercial operations with pollution impacts are also mentioned. Hospitals, dispensaries, markets and fairs are listed as provincial subjects in the 1935 Act and the 1956 Constitution, and are omitted from the 1962 and 1973 Constitutions, thereby becoming residuary subjects. Under the 1973 Constitution, the National Assembly is awarded the power to declare by law that any trade, business, industry or service may be owned or carried out exclusively by the federal or provincial government, or a government-controlled corporation, to the complete or partial exclusion of other persons (article 253(b)). Taxation is another area where legislative authority is exercised by both the federal and provincial governments, depending on the goods or activities concerned. Starting with the Government of India Act 1935, no taxes related specifically to natural resources are provided for in the legislative lists. Since Independence, the federal government has retained exclusive authority to legislate on matters related to certain taxes and duties. These include customs and export duties, taxes on corporations 1. Legislative Jurisdiction 9

10 and non-agricultural income, sales tax, and excise duties on goods and products (except for alcohol, opium and other narcotics). Similarly, taxation related to mineral oil and natural gas has been a federal subject since the 1956 Constitution, along with taxes on minerals used in the production of nuclear energy, which was introduced as a federal subject in the 1962 Constitution. Taxes and duties on the production capacity of any plant, machinery, undertaking, establishment or installation was introduced as a federal subject in the 1973 Constitution. The 1935 Act and the 1956 Constitution also mention taxes on mineral rights, which is a provincial area subject to limitations that may be imposed by federal law, but this subject does not appear in the legislative lists of 1962 or Areas in which provincial governments have exercised legislative authority for taxation since 1947 include land revenue, taxes on lands and buildings, taxes on vehicles, animals and boats, tolls, dues on passengers and goods carried on inland waterways, taxes on luxuries and entertainments, and taxes on the consumption or sale of electricity, all of which appear in the provincial lists of the 1935 Act and 1956 Constitution, and are omitted from the 1962 and 1973 legislative lists, thereby becoming residuary subjects. Under the 1973 Constitution, terminal taxes on goods and passengers, whether carried by sea, rail or air, is a federal subject but this has not always been the case. Terminal taxes for railways is a provincial subject in 1956 and a residuary area in 1962, while terminal taxes for shipping is not mentioned n the 1935 Act. The 1973 Constitution also allows the federal government to levy excise duties on natural gas at the well head but these proceeds are paid to the province in which the well head is located (article 161(1)). Starting with the Government of India Act 1935, the subject of investment has not appeared in the legislative lists of any previous constitutions. Investment-related activities are, however, mentioned but even here legislative authority begins to be delineated more clearly with the 1956 Constitution. The only related subjects in the 1935 Act are bankruptcy, insolvency and contracts (except for contracts relating to agricultural land), all of which are included in the concurrent list. These subjects become residuary areas under the Constitutions of 1956 and 1962 before once again appearing in the concurrent list of the 1973 Constitution. Except in the case of cooperative banks, banking is a federal subject when the bank in question operates in more than one province, and has been so since the 1956 Constitution. Similarly, stock exchanges and futures markets with business not confined to one province have remained under the legislative authority of the federal government starting with the 1956 Constitution. The subject of foreign loans is introduced in 1956, in the federal list, and remains a federal area in 1962 and The 1973 Constitution introduces the subject of foreign aid, which is also on the federal list. Transport in general does not appear as a separate subject in any of the constitutions. Instead, legislative authority is divided between the federal and provincial governments according to the type of transport. Since Independence, certain areas have remained under the exclusive authority of the federal government. These include admiralty jurisdiction, major ports, airports and air traffic, and provisions for the safety of aircraft and shipping. Maritime shipping and navigation has also appeared in the federal list of every constitution, while in 1956 and 1962, coastal shipping is also a federal subject, except for coastal shipping confined to a single province. Shipping and navigation on tidal waters is a federal subject in the 1935 Act, a provincial subject in 1956 and a residuary area in 1962, but reverts to the federal government under the 1973 Constitution. Shipping and navigation in inland waterways is listed as a concurrent subject in 1935, and a residuary subject in 1956 and 1962, before appearing once again in the concurrent list of the 1973 Constitution. Roads, bridges, ferries and other means of communication not specified in the federal list are provincial subjects in 1935 and 1956, become residuary areas in 1962, and remain so in In the 1973 Constitution, however, the subject of national highways and strategic roads is introduced in the federal list. Legislative authority over railways has also been divided according to the type of railway. The 1935 Act mentions two types, federal and minor, and as expected, legislative powers are allocated accordingly. Here, however, the federal government retains authority to legislate on matters related to 1. Legislative Jurisdiction 10

11 safety and the responsibilities of railway administrations even in the case of minor railways. These distinctions do not appear in the 1956 Constitution, where the subject of railways is shown in the provincial list. In 1962, the subject becomes a residuary area before coming under the exclusive authority of the federal government under the 1973 Constitution. Mechanically propelled vehicles appear in the concurrent list in the 1935 Act, where other types of vehicles are mentioned in the provincial list. By 1956, vehicles including mechanically propelled ones fall under the legislative authority of the provinces. The subject is not mentioned in 1962, making it a residuary area over which the province exercises legislative authority subject to specified conditions. In the 1973 Constitution, however, mechanically propelled vehicles appear once again, this time as a concurrent subject. Minor railways, ropeways and municipal tramways are provincial subjects in 1935 and 1956, before becoming residuary areas in 1962 and Offences committed on the high seas and in the air is a federal subject under the Constitutions of 1956 and 1962 but is not mentioned in the 1973 Constitution. Nuclear energy is, understandably, not mentioned in the Government of India Act 1935 but appears as a federal subject from 1956 onwards. The production of nuclear fuels, the generation and use of nuclear energy, and ionising radiation, meanwhile, appear for the first time in the 1962 Constitution as federal subjects and remain so under the 1973 Constitution. Mineral oil and natural gas, though not mentioned in the 1935 Act, are also listed as federal subjects since Gas and gasworks are provincial subjects in 1935 and 1956, become a residuary matter in 1962 and remain so in Electricity in general starts out as a concurrent subject in 1935, becomes a provincial subject in 1956 and a residuary area in 1962, before reverting to the concurrent list in Water power, meanwhile, is listed as a provincial subject in 1935 and 1956 but is not mentioned in the Constitution of 1962, thereby becoming a residuary subject. Although water power is not mentioned in the 1973 Constitution either, the Water and Power Development Authority (WAPDA) is introduced as a federal subject. Under the 1973 Constitution, the federal government has broad powers to construct or install hydroelectric or thermal power plants, grid stations and inter-provincial transmission lines anywhere in the country (article 157). The powers of provincial governments with respect to electricity, as specified in article 157, include levying taxes on consumption, determining tariffs for distribution, constructing powerhouses and grid stations, and installing intra-provincial transmission lines. The Constitution requires that net proceeds from federal excise duties levied on natural gas extraction at the source, and royalties collected, are paid to the province in which the well head is located (article 161). Similarly, net profits earned by the federal government from the bulk generation of hydroelectric power are to be paid to the province in which the power station is situated. The subject of tourism is not mentioned in the Government of India Act 1935 or the Constitution of In the 1962 Constitution, it appears in the federal list while under the 1973 Constitution, tourism is a concurrent subject, allowing both federal and provincial governments to legislate for the sector. Import and export across customs frontiers has remained under the exclusive legislative authority of the federal government since Independence. The 1956 Constitution also introduces the subjects of trade and commerce with foreign countries, and quality standards for goods intended for export, both of which appear in the federal list, and remain federal subjects under the Constitutions of 1962 and Matters related more generally to the movement of goods across customs frontiers and between provinces also fall under the exclusive legislative authority of the federal government. Matters concerning quarantine and phytosanitary measures are described differently in various constitutions. Port quarantine is a federal subject in the Government of India Act 1935, is not mentioned specifically in the Constitutions of 1956 and 1962, and appears once again as a federal subject under the 1973 Constitution. Quarantine in general is listed as a federal subject in 1962 but is omitted from the legislative lists of the 1956 Constitution. Inter-provincial quarantine, meanwhile, is a concurrent subject in 1956 but is not mentioned before or since. 1. Legislative Jurisdiction 11

12 In the 1935 Act, the prevention of the spread from one province to another of infectious or contagious diseases or pests affecting men, animals or plants is a concurrent subject. The language of the 1956 Constitution differs slightly, referring only to infectious or contagious diseases in general, and here the subject appears in the provincial list. This or similar language does not appear in the 1962 Constitution but the Constitution of 1973 reverts to the language and legislative jurisdiction specified in the 1935 Act, showing the prevention of infectious or contagious diseases and pests in humans, animals and plants to be a concurrent matter. The 1973 Constitution allows the federal legislature to impose restrictions on trade between provinces in the public interest (article 151(2)) but provincial assemblies are explicitly prohibited from framing laws that restrict trade (article 151(3)). They may, however, with prior consent from the president, frame laws to impose reasonable restrictions in order to protect animals and plants from disease (article 151(4)). The subject of inter-provincial trade is not mentioned in the Government of India Act It is introduced in the Constitution of 1956 as a federal subject, and the same legislative jurisdiction is carried over into the 1962 and 1973 Constitutions. Under the 1973 Constitution, however, provincial governments may legislate on inter-provincial trade under specific conditions mentioned in article 151. According to the 1973 Constitution, the national assembly may impose restrictions on free trade between provinces or within a province, as may be required in the public interest (article 151(2)). But provincial assemblies are explicitly prohibited from framing laws that restrict trade, and from imposing any tax that discriminates against goods manufactured in other provinces (article 151(3)). The provinces may, however, with prior consent from the president, frame laws to impose reasonable restrictions in the interest of public health, public order or morality ; to protect animals and plants from disease; or to alleviate shortages of essential goods and commodities (article 151(4)). Legislative jurisdiction for research institutions is divided according to subject area as well as the government or agency that operates the institution in question. Since Independence, national libraries, museums and research institutions controlled by the federal government fall under its authority, while provincial governments exercise legislative powers over provincially owned and operated institutions. As far as subject area is concerned, agricultural education and research appears in the provincial lists of the Government of India Act 1935 and the 1956 Constitution, and is omitted from the legislative lists of the 1962 and 1973 Constitutions, thereby becoming a residual matter. Scientific, industrial and technological research, meanwhile, is introduced as a concurrent subject in 1965, omitted from the 1962 list, and mentioned in the federal list of the 1973 Constitution. Scientific societies and associations, as well as education in general, are listed as provincial areas in 1935 and 1956, and omitted from the legislative lists in 1962 and 1973, and as such fall under the residual authority of provincial governments. Poisons and dangerous drugs are a concurrent subject under the Government of India Act 1935 as well as the 1956 Constitution. The subject is not mentioned in the 1962 Constitution but appears once again as a concurrent matter in the 1973 Constitution. The cultivation and manufacture of opium is a federal subject in 1935, a provincial one in 1956, a residuary matter in 1962 and a concurrent area in Other narcotics appear as a provincial item in 1935 but are not mentioned since, except in the context of duties and taxes. Drugs and pharmaceuticals in general are not mentioned prior to 1973, where this subject also appears in the concurrent list. Drugs and medicines generally, and opium, poisons and dangerous drugs in particular, are mentioned in the concurrent legislative list of the 1973 Constitution. Environmental pollution and ecology is introduced in the Constitution of 1973, where it is a concurrent subject. No similar category exists in prior constitutions. Treaties and agreements with other countries, including conventions and declarations, are mentioned as a federal subject in the Government of India Act 1935 and have remained so throughout. International organisations, participation in international bodies and implementing decisions made in such forums, are introduced in the 1956 Constitution as a federal subject, remain under the legislative authority of the federal government in 1962 but are omitted from the 1973 Constitution. Charities, 1. Legislative Jurisdiction 12

13 charitable institutions and charitable endowments are provincial subjects in 1935 and 1956, and omitted from the Constitutions of 1962 and Ancient and historical monuments are listed as a federal subject in 1935, while in 1956 they are a provincial subject, except for monuments declared to be of national importance, which are on the concurrent list. In 1962, monuments of national importance revert to the federal government, while other types of monuments are a residuary subject over which the province exercises legislative authority subject to specified conditions. In 1973, distinctions of national importance are removed, and all ancient and historical monuments appear in the concurrent list. The 1935 Act also mentions archaeological sites and remains as a federal subject. The topic does not appear in 1956 or 1962, but is reintroduced in 1973 as a concurrent subject. Explosives in general fall under the exclusive legislative authority of the federal government under the 1935 Act, while in 1956 and 1962 only the manufacture of explosives is a federal subject. The 1973 Constitution reverts to the language but not the legislative jurisdiction of the 1935 Act, listing explosives in general in the concurrent list. Liquids and substances declared by law to be dangerously inflammable is another subject that appears only in the 1935 Act and the 1973 Constitution, in both cases in the federal list. Public health and sanitation is a provincial subject in the 1935 Act as well as the 1956 Constitution, and is omitted from the Constitutions of 1962 and 1973, becoming a residuary matter. Similarly, the adulteration of foodstuffs and other goods is a provincial subject from Independence until 1956, after which it becomes a residuary subject. 1. Legislative Jurisdiction 13

14 2. METHODOLOGY The original research framework for the series was developed jointly by one of the authors and the Series General Editor. The outline was tested and revised during the process of compiling and drafting this volume, as well as the other reviews in the series. Authors were selected to include both legal academics and practising attorneys, to provide a wide range of perspectives and approaches to the research design. Two authors worked on this compilation and analysis, and at least two worked on each of the other volumes in this series. Authors met twice during the initial stages of compilation and drafting to discuss difficulties and questions, and agree on common solutions. This collaboration delivered composite analyses of hierarchy and governance that are richer and more exhaustive than individual chapters would have been without the joint effort. Each team of authors evaluated the legislation in force for every category specified in the research design, and selected for analysis those laws relevant to the focus on natural resources and processes that affect natural resource management. Questions about the applicability of a particular legal instrument were resolved through consultations between authors and editors. Resources tapped to identify and obtain copies of the statutes reviewed in this series include the Pakistan Code, law reports published in Pakistan, academic and commercial legal texts, government offices, local and international web sites and national newspapers. Laws are amended frequently and amending instruments are not always published in the resources generally available, making it difficult and in certain cases impossible to definitively ascertain the current status of a law. While even the oldest laws may be found in the Pakistan Code, rules and regulations framed pursuant to acts and ordinances are on occasion excluded. Some rules and regulations that are evidently still in force were identified only through references in other sources. 2. Methodology 14

15 3. HIERARCHY OF LEGAL INSTRUMENTS Pakistan s chief legal instrument is the 1973 Constitution. It establishes the relationship between the federal government and the provinces, empowers the federal and provincial governments to perform their designated functions, and specifies the fundamental rights of all citizens. The Supreme Court has held the Constitution to be a living document which must be interpreted in a manner that is not restrictive, pedantic or limited. 5 On 12 October 1999 a state of emergency was declared throughout Pakistan, and the national and provincial assemblies were suspended. This marked the second occasion on which the Constitution of 1973 was held in abeyance; it was first suspended during the period 5 July March Immediately following the declaration of the 1999 emergency, a series of provisional constitution orders and executive orders, issued between October and December of that year, provided for the functioning of the government, and awarded legislative powers to the chief executive and provincial governors (Order 1 of 1999, Order 5 of 1999 and Order 9 of 1999). The following year the national and provincial assemblies were dissolved. In the period during which the assemblies remained dissolved, the legislative process was substituted by a series of orders and ordinances issued by the chief executive and provincial governors. Bypassing the usual procedure for legislative ratification, ordinances issued between 1999 and 2002 were validated by the Constitution (Seventeenth Amendment) Act These ordinances remain in force and do not need to be adopted by the relevant legislative body. No ordinances were issued on matters related to the environment, natural resources or their management during this period. By March 2003, the Constitution was restored. The process was carried out in phases, from November 2002 to March of the following year, and included the promulgation of the Legal Framework Order 2002 which amended the Constitution. The constitutional amendments made during this period, which were the subject of debate, were passed into law in 2003 via the Constitution (Seventeenth Amendment) Act. Elections to the national and provincial assemblies were held on 10 October 2002, and polls for the Senate were held on 24 February LEGISLATIVE ACTS First in the hierarchy of sub-constitutional legal instruments are acts passed by the legislative branch of government the national and provincial assemblies. Here, federal law controls. Under article 143 of the Constitution, if legislation passed by a provincial assembly comes into conflict with a law enacted by the national assembly, the federal statute overrides the provincial one to the extent of the inconsistency. Some federal laws operate as provincial statutes, either because legislative power with respect to a particular subject has shifted from the federal to provincial level during one of several constitutional changes, or because the national assembly was authorised to frame a law on a provincial subject by provincial consent, under article 144 of the Constitution. This article also allows the provinces to subsequently amend or repeal such laws. In addition, certain laws framed during the colonial era now operate as provincial statutes because their subject matter does not fall under the legislative jurisdiction of the federal government. The motives of lawmakers or the necessity of specific legislation cannot be questioned in a court of law and mala fides cannot be attributed to the legislature. 6 A law may, however, be tested on the touchstone of the Constitution with respect to legislative competence, fundamental rights or other limitations imposed by the Constitution. 7 These principles have been upheld in the courts where it has also been ruled that the legislature has the power to destroy existing rights without any obligation to Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341). Ardeshir Cowasjee v. Province of Sindh (Constitutional Petition No. D-856 of 2002 dated 14 October 2003, not reported); Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457); Ghulam Nabi v. Province of Sindh (PLD 1999 Kar 372); Balochistan Bar Association v. Government of Balochistan (PLD 1991 Quetta 7); Rahim Shah v. Government of NWFP (PLD 1982 Peshawar 93). Star Flour Mills v. Province of Punjab (PLD 1996 Lahore 687); Balochistan Bar Association v. Government of Balochistan (PLD 1991 Quetta 7). 3. Hierarchy 15