Post-legislative scrutiny (PLS) is a broad form of review, the purpose of which is to address the effects of the legislation in terms of whether the intended objectives have been met by the legislation and, if so, how effectively. PLS looks at the enactment of the law, whether the legal provisions of the law have been brought into force, how courts have interpreted the law and how legal practitioners and citizens have used the law.
PLS is important because it helps in gauging the efficacy of a particular law with changing times and finds if a gap exists in a particular law. PLS practices are important for effective implementation of laws and to find out if the original intent of a law – with which it was brought into force in first place – is being fulfilled. In principle the PLS of a law should be taken after a suitable time for the impact maturity of the law. This may range from 3 to 10 years after enactment of a law.
Globally, the factors which may affect the decision about timing include:
- Discretion of legislators
- Changing dynamics relevant to legislative impact
- Bi-lateral / Multi lateral Agreements (Signing or Review stage)
- Review period of institutions governed by the law
- Sunset or review clause
- Executive demand
- Civil society demand
The intent of Pakistan Environmental Protection Act (PEPA), 1997 was environment protection, conservation, rehabilitation and improvement of environment of the country. This law ensures protection of the environment from hazardous substance, hazardous waste, hazardous effluents, noise pollution, and environmental damages. This Act had another intent of promotion of sustainable development in the country.
The Constitution (Eighteenth Amendment) Act 2010 gives provincial governments exclusive powers to legislate on the subject of “environmental pollution and ecology”. The implications of this shift in jurisdiction are analysed in this study.
When the Pakistan Environmental Protection Act (PEPA) 1997 operated as a federal law, any contradictory provisions in other laws, whether federal or provincial, were nullified because PEPA 1997 had overriding effect. But this is no longer the case. With environmental protection legislation operating at the provincial level, all federal laws now override it.
Prior to the enactment of the Eighteenth Amendment, PEPA 1997 governed all operations and activities that have the potential to cause environmental damage. This included subjects such as nuclear power for which only the federal government may legislate. This too is no longer the case. The federal government retains exclusive authority over a number of subjects that should be regulated by environmental law but the ambit of that law will now no longer extend to them.
Provincial governments have ahead of them the task of formulating their own environmental legislation. This is no simple matter. A great number of critically important issues will need to be considered before any provincial legislative action can begin.
The PEPA, 1997 is comprehensive, but in its legislative scheme, most of its provisions can be operationalized only subject to the rules and regulations to be prescribed there under. As this is the first special comprehensive legislation on environmental law, it contains specific provisions to address the already existing and emerging environmental problems caused by climate change. As a result of the commitment made by Pakistan while participating in the United Nations (UN) Conference on Environment and Development held in Rio de Janeiro in 1992, Pakistan signed the Rio Declaration in conformity with Agenda 21. Post-devolution and following the implementation of 18 amendment, federal laws have been delegated to the provinces leading to the implementation of the Provincial Environmental Protection Act and Strategies.
PLS of PEPA, 1997 will have a huge impact on effective implementation of this Act that would help in climate mitigation strategies of the country. Pakistan, being one of the most affected countries by climate induced calamities and environment degradation. Environmental pollution is a phenomenon not new to this world. Both developed and developing stand accountable for global environmental pollution. PLS of PEPA, on one hand will identify gaps in the existing laws. On the other hand, it will highlight the emergent nature of the woes of climate change. Pakistan is in dire need of measured and robust action against climate change and PLS of the PEPA will help the country in taking robust actions.
Standing Committee on Climate Change (SCCC) is determined to combat climate induced issues of the country. SCCC in collaboration with Westminster Foundation for Democracy (WFD) has taken up the task of conducting PLS of PEPA, 1997. It arranged consultation sessions with Federal and provincial EPA to conduct a gap analysis of PEPA, 1997. Consultations with committee members were also a part of the efforts made for effective PLS of PEPA. Taking Federal and Provincial EPAs on board gave an insight into the challenges and problems they were facing regarding climate change and effective implementation of existing environment related laws. These consultations identified gaps in the existing laws and explored ways of mutual collaboration for evidence-based policymaking. Another intent behind this series of workshops was to bridge the gap between federal and Provincial EPAs.
Importance of legislative analysis and the importance of strengthening federal EPA so that a coordination mechanism between federal and provincial EPAs can be established was highlighted in these consultation workshops. Before these consultation workshops, federal and provincial EPAs did not have ample opportunities to interact for collaborative talks and discussions.