Should a tree have the right to sue? This line of inquiry is met with an equal measure of incredulity and fascination. After all, to answer in the affirmative is to entertain the rather rib-tickling idea that a tree, much like a human being, is capable of being wronged and deserving of restitution. To answer in the negative is to reassert the status quo — that a tree is simply a tree, inanimate and insentient, incapable of any hurt, unqualified for any compensation.

Asfand Yar Warraich

Recently, in a landmark judgement, the high court of Uttarakhand revived Stone’s philosophy and declared that all glaciers, rivers, lakes, forests, springs and meadows in India are “legal entities”, with all the corresponding rights of legal persons. Delivering the seminal verdict, Justice Sharma stated that “the rights of these legal entities shall be equivalent to the rights of human beings” and that any injury caused to them, shall be treated as an “injury caused to a human being”.

Can trees and rivers be accorded legal rights?

Remarkably, this is not the first time that nature has found itself personified by law. In 2008, Ecuador became the first nation in the world to grant constitutional rights to nature. Article 71 of its constitution stipulates that nature has “the right to exist, persist, maintain and regenerate its vital cycles”. Furthermore, it goes on to state that “every person, people, community or nationality” shall be able to demand the recognition of this right before public bodies.

Similarly, in the culmination of a 100-year campaign by the Whanganui Iwi, an indigenous community in New Zealand, parliament in New Zealand lately bestowed a similar status to the Whanganui River, making it the legal equivalent of a person, with members of the community being empowered to bring a legal action in its name, just as a parent is able to bring an action in the name of their child.

The aforementioned developments are revolutionary. They are a testament to a paradigmatic shift in environmental jurisprudence — a movement away from the rights of man ‘to’ nature, towards the rights ‘of’ nature against man.

To date, environmental law has been inherently human-centric, stuck to the idea that mankind is entitled to a clean, sustainable environment. Even the global movement for environmental conservation is in reality an act of self-preservation against what appears to be an imminent danger — the destruction of ‘our’ habitat. This is a radically different approach, built on the opposing premise that nature is equally entitled to exist free from the interference of mankind.

But polemics aside, what is the practicality of these developments? Are they merely symbolic or do they harbour any potential? While this novel approach may seem eccentric, it certainly warrants consideration.

For one, it opens up alternate avenues for environmental protection. It allows interested parties to seek redressal from the courts, even in the absence of a violation of any express environmental legislation, thereby reducing our dependency on inefficient state institutions that are often unwilling to enact or enforce protectionist principles due to corporate interests. Similarly, it allows courts to take cognisance of environmental harm and assess compensatory damages.

Moreover, there is a socio-cultural aspect. By personifying natural objects, this approach challenges the prevailing idea that nature is our property, ripe for appropriation as we see fit, and instead fosters an understanding of the world where every component of our ecosystem is imbued with a degree of consciousness, and therefore deserving of respect and protection. As our conception of nature changes, so does our relationship with it — from one of domination to one of reciprocity.

That said, the framework is not entirely flawless. A fundamental question remains unresolved: who shall sue on behalf of nature? If a governmental appointee is made custodian, we run the risk of being entrapped in the same cycle of incompetence and lethargy that plagues the current system. If, on the other hand, the general public is entitled to bring action, there is always the dangerous possibility of our courts being bombarded with frivolous litigation, thus overburdening an already fractured system.

Regardless, this rights-based approach offers a much-needed reorientation of our relationship with nature. And in a global system that is gluttonously devouring its precious natural resources, perhaps that is what we truly need — a fresh perspective.

The writer is a lawyer.
Published in Dawn, May 14th, 2017

This story was originally published by Dawn, Pakistan

The notion of human rights has gradually been stripped of its moral legitimacy. It has been reduced to little more than a fiction, laid bare of any substance and consigned to the inaccessible echelons of our society — a paper tiger, to be unleashed only for abstruse debates and holier-than-thou table talk.

Asfand Yar Warraichr

In practice, this model remains largely abandoned, and the evidence of this desertion is littered all around us: be it the unlicensed murder of voices of dissent; the unchecked rise in incidents of mob violence and vigilante justice; the unabashed sponsorship of torture and extra-judicial killing by our state apparatus; the institutional discrimination against religious minorities; or the subtly imposed restrictions on our avenues of dialogue and discussion.

We are well versed in these transgressions. They are relentlessly discussed in our drawing rooms, circulated through social media and are fodder for infotainment — and we gluttonously digest them. This is not to say that there is no sign of protest — since sections of our civil society have been untiringly campaigning against such violations — but despite this sporadic activism, neither the state nor society at large appear responsive.

The lack of grass-roots advocacy has rendered human rights an academic, rather than a political, pursuit.

The impending question, then, is this: why is it that, despite the presence of a robust legal mechanism for the enforcement of fundamental rights, the violation of fundamental rights still persists and, more often than not, goes without redress? The answer requires careful introspection into our approach towards human rights.

The foremost reason is that our state has failed to create a human rights culture within its institutions. The notion of rights and corresponding responsibilities is not instinctual; it needs to be actively fostered. Our state, rather than taking up the challenge, has shied away from its duty to do so — an attitude that borders on gross negligence.

It is worth noting that much of the unchecked violations of human rights in Pakistan occurs more due to the absence of the state rather than its excess — the instances of violence against people accused of blasphemy and those defending them, the wholesale targeted killings of ethnic and religious minorities, and the oppression of women in our society primarily stem not from the state, but from the public.

In such circumstances, the state automatically absolves itself of any guilt, since the appropriate remedy for such victims is criminal prosecution. However, what the state fails to acknowledge is that this absence is only a by-product of its own inaction. While it may not be actively perpetrating these actions, its indifference fosters an environment for such violence to actualise. Unless the state decides to make the protection of our rights a priority, no amount of advocacy or lobbying for human rights will make a significant difference.

A secondary reason — one that is often overlooked — is that the human rights strategy employed by civil society fails to grapple with the fact that the human rights project has come to be mistrusted. It is increasingly seen as an imperialistic mission; a hegemonic tool constructed by the ‘crafty’ West in order to displace our existing traditional and religious values, and supplant them with amoral, liberal ideas.

While it is tempting to brush this off as conspiratorial — the rationale is understandable. The language of human rights has often been employed by the West as a pretext for invasion: Afghani women needed ‘emancipation’ from the oppressive Taliban; Iraqi citizens needed ‘protection’ from a ruthless Saddam Hussein; the Libyans needed ‘liberation’ from a pitiless Muammar Qadhafi; and, now, Syrians require ‘deliverance’ from the chemical attacks of Bashar al-Assad. The hypocrisy of international law is unquestionable — especially when the US and its allies face allegations of doing much the same, but with absolute impunity.

Whether the human rights regime is truly complicit in engineering international inequity is consequential. The rhetoric alone has done enough damage, generating an unhealthy dose of scepticism in our society. The more conservative among us have begun treating the regime as some unholy elitist mission, hell-bent on subverting Pakistani religiosity, while the establishment has come to view it as an impediment to national security – particularly where cases of sedition or terrorism are concerned. For this is where patience runs thin, the old adage of necessity kicks in, and civil liberties are courteously escorted out of the door.

Our fundamental error lies in our failure to engage with this mistrust and cynicism. Thus far, our modus operandi has been limited to two methods: lobbying the government, and a string of sporadic public-interest litigation that seeks redress through the judiciary. A common characteristic is that both are state-centric, leaving out the largest obstacle to safeguarding rights — public opinion.

It is high time that human rights, as a socio-legal project, got a reappraisal. The lack of focus on grass-roots advocacy has rendered it an academic, rather than a political pursuit, couched in obscure jargon and accessible only to a privileged and educated class. The debate for human rights needs to be taken to local forums and, for that to be done, our conception of rights needs to be indigenised, dressed in an ideology that does not seem so foreign and alien to us.

It is impractical for us to continue to find our legitimacy in international obligations and progressive norms, and pertinent that we begin reclaiming the narrative around it by finding our justifications closer to home — our own homespun local ethos.

The writer is a lawyer.
Published in Dawn, December 12th, 2016

This story was originally published by Dawn, Pakistan