The Supreme Court has said that climate change was perhaps the most serious threat to the fundamental rights of the people in Pakistan and ruled that a climate-resilient adaptation plan was the need of the hour in order to protect their right to life and above all their right to dignity under Articles 9 and 14 of the Constitution.
It said it was imperative that the plan also included a detailed mechanism for the utilisation of financial support coming to Pakistan from the loss and damage fund.
This was stated in a detailed page judgment authored by Justice Syed Mansoor Ali Shah and endorsed by Chief Justice of Pakistan Umar Ata Bandial and Justice Ayesha Malik while hearing the Sindh government’s appeal against Sindh High Court (SHC) order regarding the monitoring of flood relief distribution.
While regretting the failure to learn from the 2010 floods “as has become apparent from the magnitude of the destruction caused by the recent floods”, the top court noted that it was pivotal that effective steps were taken to prevent such catastrophes in the future.
Hoping that the federal government will act with speed in this regard, the SC judgement quoted Swedish environmental activist Greta Thunberg: “Our house is on fire”.
The court also noted that the NDMA has formulated guidelines under this provision – such as the NDMA Guidelines for Minimum Ex-Gratia Assistance to the Persons Affected by Natural and Man-Made Disasters, 2016 – and state functionaries while operating under the said guidelines, are expected to promptly formulate a mechanism for provisioning of immediate relief to persons affected by climate-related disasters.
"It is therefore essential that these global funds are invested in building national climate resilience so that climate-induced disasters can be minimised," the order said.
The court also noted that climate justice was an important consideration at the recent 27th Conference of the Parties to the United Nations Framework Convention on Climate Change (COP27) which concluded with a significant and positive development through the formation of a loss and damage fund for climate-vulnerable developing countries.
It said that soon funds will be allocated to countries that have suffered loss and damage due to climate change, adding it was high time to develop a mechanism for the allocation of these funds and the identification of key adaptation infrastructural projects that will help build national climate resilience, especially against floods in the years to come.
“It is expected that the ministry of climate change shall drive this initiative and frame a policy and set up a mechanism to effectively and efficiently utilise such funds,” the apex court hoped in the ruling.
Additionally, the court observed, under a section of the Act, subject to the directions of the commission, the National Disaster Management Authority is to lay down guidelines for minimum standards of relief to be provided to persons affected by the disaster.
It cited the ‘Global Climate Risk Index 2021’ according to which Pakistan was ranked among the top 10 most vulnerable countries and said the devastation caused by the recent floods in 2022 was distressing proof of the same.
“Research has found that the 5-day maximum rainfall over Sindh and Balochistan (Provinces of Pakistan) had become 75% more intense than it would have been had the climate not warmed by 1.2ºC, thereby directly connecting global warming to be a major cause of the recent floods of 2022 and the likelihood of its recurrence in the years to come.”
It pointed out that the probability of such heatwaves had now substantially increased due to climate change, with future waves being even hotter compared to that of 2022. Therefore, chances of similar extreme rainfall have also become more likely.
The judgement said that according to the ‘Pakistan Floods 2022 Post-Disaster Needs Assessment’ prepared by the ministry of planning development and special initiatives with the assistance of other international bodies such as the World Bank, the total damage from the floods is evaluated to be at PKR 3.2 trillion (US$14.9 billion), total loss at PKR 3.3 trillion (US$15.2 billion), and total needs for recovery and reconstruction at PKR 3.5 trillion (US$16.3 billion).
"The resulting food and health insecurity, the risk of food shortage and diseases pose challenges that need serious and urgent attention. In view of this unprecedented damage and the likelihood of its recurrence, it is imperative that serious and practical efforts are undertaken for prevention and adaptation against such disasters induced by climate change.”
It said it was also expected that existing policies or mechanisms catering to food insecurity are mobilised as soon as possible and if no such policies or mechanisms exist, then the respective state functionaries should take urgent action to formulate such policies and create such mechanisms to prevent further exacerbation of the losses and damage already suffered due to the floods and for sustainable rehabilitation.
The existing climate change framework of Pakistan indicates that the ministry of climate change has formulated a national climate change policy, updated in 2021, devising policy measures for climate change adaptation and mitigation.
Furthermore, the Climate Change Act of 2017 has established the Pakistan Climate Change Council and the Pakistan Climate Change Authority. The latter has been empowered to formulate adaptation and mitigation policies, and plans, including the national adaptation plan, which the former shall approve and monitor.
"However, it seems that no substantial policies or plans have been formulated or implemented under the Climate Change Act. It is apparent that the measures in place are insufficient to cater to rapidly changing climate and its dire effects, therefore, there is a need for a coordinated joint effort in this regard.”
The court also said that the National Disaster Management Act, 2010 itself does not expressly cater to climate change, nonetheless, the Act does provide for taking measures for the prevention of disasters and mitigation.
“Section 6(2)(g) of the Act provides that the National Disaster Management Commission may ‘take such other measures for the prevention of disaster or the mitigation or for preparedness … as it may consider necessary’.”
Prevention and mitigation have also been provided under provisions stipulating powers and functions of the provincial disaster management commission, the provincial disaster management authority and the district disaster management authority established under the Act.
“Similarly, section 10(3)(a) stipulates that the National Plan shall include ‘measures to be taken for the prevention of disasters or the mitigation of their effects’ and section 17(3)(b) of the Act stipulates that the Provincial Plan shall include “the measures to be adopted for prevention and mitigation of disasters”.
It noted that although the National Disaster Management Plan, 2012 does refer to the increase in climate-related natural disasters, it falls short of devising any meaningful steps/directions to suggest adaptation measures to address and guard against the changing climate.
Similarly, one of the policy objectives of the National Disaster Risk Reduction Policy, 2013 includes promoting development planning that considers and addresses risks alongside environmental and climate change concerns.
However, the SC said there appears to be no plan or strategy on the ground that has been formulated and put out in the public domain that deals with adaptation measures to be taken by the government or the respective authorities in order to ensure that the floods of 2022 are not repeated next year.
"The rehabilitation work has to be climate resilient and it must be a part of a master adaptation plan", the order added.