Experts differ over Sepa’s authority after SC judgment on local govts

Legal and environmental experts seem to be divided over the powers of the Sindh Environmental Protection Agency (Sepa) after the February 1 judgment of the Supreme Court that directs the Sindh government to devolve financial, administrative and political powers to the local governments in the province as enshrined in the Article 140-A of the constitution.

Until the Sindh Environmental Protection Act is amended, Sepa has overriding powers over other civic agencies and its jurisdiction extends to even areas like cantonment boards that come under the federal domain and where rules of provincial agencies like the Sindh Building Control Authority (SBCA) do not apply. Hence, if Sepa objected to any project in a cantonment board, it had to be stopped under the law.

However, the environmental watchdog may lose its overriding powers due to the recent SC judgment on the Muttahida Qaumi Movement-Pakistan’s (MQM-P) petition that had asked for interpretation of the Article 140-A.

The SC order

The apex court maintained in the order that various provincial and civic agencies such as the SBCA, Karachi Water and Sewerage Board (KWSB), Sindh Food Authority, Sindh Mass Transit Authority, Karachi Development Authority, Hyderabad Development Authority, Sehwan Development Authority and Larkana Development Authority cannot perform any action without approval from the elected local government.

Along with all these town planning authorities and landowning agencies, the order also mentioned that “the Sindh Environmental Protection Agency Act, 2014 purporting to override and conflicting action taken by an elected local government are held to be against the scheme of the constitution and the provincial government is directed to bring all those laws in accord with the mandate of Article 140A of the Constitution.”

‘Not LG subject’

Advocate Zubair Abro, who has expertise in land- and environment-related cases, explained to The News that as per the SC order, if action of any landowning agency or town planning authority along with Sepa went in conflict with the elected local government, that would be considered against the constitution.

He, however, added that environment laws have historically been considered superior to other laws which gives them an overriding effect. The SBCA, for that matter, if gives approval for the construction of any building but Sepa raises objections, the latter will have an overriding effect, he explained.

According to Abro, the provincial environmental watchdog has been above all the government tiers as according to the Section 24 of the law, Sepa mandated projects of the federal, provincial and local governments, including those of the landowning agencies.

To explain his point, the expert said that the cantonment areas in Karachi had separate building bylaws and they were not in the domain of the SBCA, but approval from Sepa was mandatory for them as well.

He added that the Sepa law also stipulated that if any government agency was found acting in contravention of the environmental law, its head could be proceeded against under the law. “Where any contravention of this Act has been committed by any Government Agency, local authority or local council, and it is proved that such contravention has been committed with the consent or connivance of, or is attributable to any negligence on the part of, the Head or any other officer of Government Agency, local authority or local council, such Head or other officer shall also be deemed guilty of such contravention along with the Government Agency, local authority or local council and shall be liable to be proceeded against and punished accordingly,” reads the Section 24 of the Sepa law.

After the SC order, Abro fears that the Sepa law would be amended and local governments would be removed from its Section 24, after which it would be easy for the local bodies to violate environmental laws as they would not fear penalty under the Sepa law.

He explained that in such a case, if an elected local council decided to commercialise any road, a mere resolution from the council would be enough to provide a legal cover to the action and as Sepa would not have overriding powers, it would not be able to take any action against that local body.

The expert, however, also cited many cases where the environmental agency was bypassed by local bodies. He said then MQM’s Karachi mayor Mustafa Kamal, who now heads the Pak Sarzameen Party, converted a piece of land for water treatment plant in Korangi into a residential area, without any environment impact assessment (EIA). He added that in the same tenure of Kamal, a piece of Gutter Baghicha land was allocated for housing purpose through a council resolution without any EIA. However, these violations were challenged in courts on various grounds, including bypassing environmental laws.

Experts like Abro feel that in the future, such violations of environmental laws could easily be granted a legal cover.

He said historically environment has not been considered a local government subject. Even in the Pakistan Environment Protection Act 1997, which was in place during the mayoral era of Kamal before the passage of the 18th Amendment, the environmental watchdog was given the power to override other laws. “The provision of this act, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force,” the Section 30 of the 1997 law read.

Imrana Tiwana case

The SC order on the MQM-P’s petition states that the operative part of the judgment is based on the Imrana Tiwana case.

Abro said Imrana was a senior advocate who challenged in the Lahore High Court the construction of a signal free corridor in Lahore by the Punjab government through the Lahore Development Authority (LDA).

Eventually, the case landed in the SC, which gave the verdict in favour of the LDA citing vacuum due to the absence of an elected Lahore mayor.

The expert said that in the Imrana Tiwana case, the apex court did not explicitly rescinded the overriding powers of Punjab’s environmental watchdog and only directed the provincial government to constitute the advisory committee of the Punjab Environment Protection Agency for evaluation of environmental impact of projects.

Legal expert Salman Akram Raja concurred with Abro in view that the SC did not devolve the Punjab environmental watchdog to the local councils in the Imrana Tiwana case. He opined that the recent SC judgment on the MQM-P’s petition was a step ahead in the Imrana Tiwana case judgment.

Raja, however, said that there could be further refinements in the court judgments regarding environment laws in the future. He explained that there had to be amendments in the environment laws in a way that those developments projects that were local in nature could environmentally be mandated by the local government, but for larger projects that were federal or provincial in nature, there could be a ‘spillover effect’ in the law.

Meanwhile, Salahuddin Ahmed, the MQM-P’s lawyer in the SC, does not believe that Sepa’s powers have been curtailed in the recent apex court’s verdict. He said the SC had laid down the principles and now the provincial and local governments would have to sit together to decide on the power of the local governments based on those principles.

As for Sepa, he said, the SC order did not render it ineffective. He opined that Sepa might be constituted in a way that it comes in both the domains of the Sindh and local governments.