Alternative Dispute Resolution (ADR) is becoming the go to fix for Pakistan’s backlogged justice system. For courts drowning in cases, mediation is an attractive alternative: it is fast, cost-effective, and lets disputing parties negotiate private settlements away from the courtroom. Supporters argue that in environmental disputes, ADR can bypass years of litigation to get financial relief to affected communities immediately. But while mediation works perfectly for private commercial disputes, using it for public environmental crises creates a massive legal problem. Ultimately environmental justice cannot be reduced to a confidential contract. Private agreements simply do not have the power to decide constitutional rights, and they give government authorities an easy way to negotiate away their legal duties behind closed doors.
The Jurisprudential Divide: Private Disagreements vs. Public Rights
Trying to solve environmental disputes through mediation fails because it misunderstands what is actually at stake. Mediation is built for private conflicts, like two businesses arguing over a contract. Environmental protection in Pakistan however, is no longer just a private issue. It is a system of public rights that belong to the broader community.
This shift started with the landmark Shehla Zia v. WAPDA case, where the Supreme Court ruled that the constitutional right to life includes protection from environmental hazards. This legal evolution reached its peak recently with the 26th Amendment. Now, Article 9A explicitly guarantees every citizen the right to a clean, healthy, and sustainable environment.
A private settlement mediated in a boardroom cannot legally decide an Article 9A right. A mediator can figure out how much money a polluting factory owes a local farmer for ruined crops but that mediator has zero legal authority to declare whether the factory’s actions violate the community’s constitutional rights. Allowing parties to privately settle this question removes public rights from the scrutiny of the courts, meaning fundamental guarantees can be taken away in confidential negotiations.
The Problem of Unrepresented Voices
The biggest practical flaw with environmental mediation is that a settlement only binds the people who actually sign it. Environmental damage however, does not stop at the signature of a contract.
If a corporation is caught dumping industrial waste into a river, a financial settlement with the immediate local residents might make the dispute disappear on paper. But this closed door deal completely shuts out downstream farming communities, the broader public, and future generations. The Lahore High Court dealt with this exact issue in Imrana Tiwana v. Province of Punjab, ruling that environmental governance must protect “inter-generational equity.”
This concept of protecting future generations completely breaks the logic of private settlements. Generations that are yet to be born cannot send a lawyer to a mediation table nor can they agree to a compromise that destroys the ecosystem they will eventually inherit. Out-of-court settlements strip the legal system of its ability to protect these unrepresented voices, trading true public justice for a private payout.
Statutory Duties and the Public Trust Doctrine
Beyond constitutional rights, environmental disputes almost always involve the strict legal duties of state regulators. When public authorities participate in ADR, they run into a hard wall of administrative law, government bodies cannot just contract away their statutory obligations.
The Pakistan Environmental Protection Act 1997 (PEPA) demands strict procedural safeguards, including Environmental Impact Assessments (EIAs) and active public hearings. If a regulatory body enters into private mediation with a developer to settle a compliance issue, it defeats the very purpose of the law. A public authority cannot legally sign a private contract agreeing to lower emission standards or drop penalties just to secure a compromise.
This is backed up by the “public trust doctrine.” In the Lahore Canal litigation, the Supreme Court cemented the rule that the State acts merely as a trustee holding natural resources for the public. As a result, the government and a private developer do not actually have the legal right to privately negotiate the degradation of a public asset as one cannot contract away rights to something they do not own.
Climate Change and Ongoing State Action
The need for the court’s justice is made obvious in climate change cases, where the issue is not just a single pollution spill, but the government’s ongoing failure to act. In Asghar Leghari v. Federation of Pakistan, the Lahore High Court recognized that the government’s failure to implement its climate policies directly threatened fundamental rights. The Court did not just issue a ruling and walk away but set up a judicially supervised Climate Change Commission to force the government to actually do its job over time. A private mediator, whose job ends the second a settlement is signed, cannot force that same kind of long-term government accountability.
Mediation Can Assist, But Never Replace, the Court
Admitting that ADR has limits does not mean mediation is useless. The difference is whether mediation is used to replace a trial, or used as a tool by the court. As seen in the Lahore Canal case, courts can appoint Mediation Committees to gather technical data, talk to experts, and suggest compromises but those committees do not make the final call, their findings go back to the judge, who retains the final authority.
Mediation is great for calculating financial damages or mapping out the logistics of pollution controls. What it must never do is conclusively declare whether a law has been broken or a constitutional right violated. Protecting Pakistan’s environment is a constitutional duty, and the enforcement of that duty should always belong to the courtroom.