Climate governance

We were among the organizers of the Navigating Climate Governance: Executive Action and Judicial Oversight conference held at the Supreme Court of Pakistan on June 8. The conference was held at the behest of the Law and Justice Commission of Pakistan. This write-up shares some themes from the conference and elaborates on the spirit in which it was convened: to build a conversation and dialogue.

The day-long event began with a discussion of the range of climate change manifestations in Pakistan given its meteorological and geographical diversity. Thus, a changing climate in Pakistan means more frequent and intense flooding in some parts and more glacial lake outburst flooding events than in the past, more frequent and longer heatwaves in some areas, increased incidence of viruses that correlates with increased temperatures and precipitation, and insect activity such as locust swarms, responding to wind and rain patterns.

The panel also introduced participants to climate attribution studies. Some of the richest takeaways from this panel were the discussions on how other societies are managing similar changes. For instance, a panelist noted that heat officers were being appointed in cities like Dhaka. This seems to us to be an important lesson: look around and be willing to learn. In particular, regional lessons will become increasingly important given that within regions climate change experiences will be shared. We, in West Asia, South Asia and Southeast Asia need no reminder of the heatwave we have been living through since April.

The second panel assessed the state of jurisdictional interplay and institutional roles, public and private, vis-a-vis the management of a changing climate. How are the country’s institutions, old and new, acting, adapting, responding? What political, executive, and judicial innovations has Pakistan’s governance produced? When one of the panelists for Panel Two was told that the panel theme was “governance in action”, he noted that he would talk about “governance inaction”.

The urgent need to attend to local-level governance was stressed by multiple panelists -- that district-level disaster management continues to be the weakest link in the architecture of disaster management, for instance, was an important and worrying acknowledgment. The panel was a mix of state and non-state representation and the juxtaposition of a presentation, for example, on how funds are supposed to travel through the Green Climate Fund, with one detailing the travails of one such grant. The panel ended by posing an important and open question: if the laws and policies exist, if the institutional architecture exists, if the intention exists, then what explains inaction?

If, as the Panel 2 discussion seemed to suggest, there is a widespread perception that institutions are not performing as they should then are the courts a necessary recourse? The final panel took stock of judicial responses and approaches to climate change, in a rich discussion ranging from how climate change is a human rights issue, to an assessment of how judges are crafting specific tools for judicial relief in light of a changing climate, and that this did not require one to be an ‘activist judge’.

An interesting illustration of some of these themes is provided in the recent Leghari vs Federation of Pakistan case, in which the court’s interpretation of fundamental rights was guided by the constitutional values of democracy, equality, and social, economic, and political justice, as well as by international environmental principles of sustainable development, intergenerational and intragenerational equity, public trust, and the precautionary principle.

Indeed, Pakistan has a long tradition of public interest litigation. There is also the oft-voiced concern that ‘judicial activism’ should not stultify the executive; many argue that judicial activism will be counter-productive if the other branches always have to look over their shoulder to see what courts are thinking. Even if one agrees that Pakistan’s judiciary has generated jurisprudence that gives reason to see the scales tilting towards hope rather than despair, significant challenges remain; an obvious one would be that appeals in environmental law cases ought to merit the same urgency that public interest litigation receives.

This is not a Pakistan-specific conversation. The world over, a growing number of climate-related actions are in court. Inger Andersen, executive director of the United Nations Environment Programme (UNEP), recently stated, “People are increasingly turning to courts to combat the climate crisis, holding governments and the private sector accountable and making litigation a key mechanism for securing climate action and promoting climate justice.”

It must be underscored that apart from holding state bodies accountable for inaction when it comes to climate change, we will inevitably have to wrestle with the question of how we hold corporations accountable in the coming years. Any set of tools or corrective measures focusing only on the state and ignoring corporations and the play of public-private partnership modalities will have limited efficacy.

There also needs to be greater recognition that, while climate change is a human rights issue, both climate change and human rights are inseparable from poverty. While particular regions will be impacted in particular ways and can share adaptation measures, everywhere, the poorest will suffer the most. The 1994 Shehla Zia case is cited frequently for reading a right to a healthy environment into the right to life, but it is worth remembering also how it explained the invocation of Article 184: “because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability.”

Pakistani activists, civil society actors, academics and journalists have powerfully articulated that recognition of global inequality, of the coloniality of climate change, while indispensable, cannot excuse the work that needs to be done internally. This recent conference, marking the participation of large numbers of the judiciary, and with the support of members of the country’s highest court, is an important recognition at the highest levels of the state machinery of the urgency of demands that a changing climate makes on Pakistan.

Waqqas Mir is a lawyer.

Maira Hayat is an anthropologist.