Before the Green Bench of the Honorable Lahore High Court at Lahore

Writ Petition No. _____________ of 2014 In re:

Kissan Board Pakistan 718 Kamran Block AllamaIqbal Town, Lahore

Petitioner

Versus 1) The Federation of Pakistan

Through Secretary, Ministry of Law, Justice and Human Rights Pakistan Secretariat, Islamabad;

2) Climate Change Division, Government of Pakistan

Through its Secretary Pakistan Secretariat, Islamabad

3) Textile Industry Division, Government of Pakistan Through its Secretary Pakistan Secretariat, Islamabad

4) Joint Secretary (EA)

Prime Ministers Office Islamabad

5) National Biosafety Committee Through its Secretary The Director-General, Pakistan Environment Protection Agency Islamabad

6) The Technical Advisory Committee Of the National Biosafety Committee Through its Chairperson The Director-General, Pakistan Environment Protection Agency Islamabad

...Respondents

Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973

Respectfully Submitted:

A. Introductory 1. The Petition

Through this Public Interest Environment Petition, the Petitioners challenge the legality of the Respondent No. 5, the National Biosafety Committee (NBC) established under the Pakistan Biosafety Rules, 2005 and the decisions taken by the NBC in its 12th meeting held on 12 March 2014. The Petition also challenges Office Memorandum dated 29 January 2014 issued by the Respondent No. 1, the Ministry of Law, Justice and Human Rights (the Impugned Office Memorandum, Annex A/1) whereby it was opined that the Respondent No. 2, the Climate Change Division can convene a meeting of the National Biosafety Committee for the time being in The National interest for the commercialization certificate of cotton seed varieties. The Petition also challenges the 18th meeting of the Respondent No. 6, the Technical Advisory Committee (TAC) of the NBC held on 13 February 2013 and any and all decisions taken therein. The Petition also challenge the direction, contained in letter dated 21 February 2014 issued by the Respondent No. 4, the Joint Secretary (EA), Prime Ministers Office (the Impugned Direction, Annex A/2), wherein the Climate Change Division and the Textile Industries Division may coordinate to convene a meeting of the NBC. Through the instant Petition, the Petitioner seeks, interalia, judicial pronouncement on the status of the Pakistan Biosafety Rules, 2005and the operation of the Pakistan Environment Protection Act, 1997 in the post-18th Amendment.

B. Petitioner 1. The Petitioner,Kissan Board of Pakistan is a registered organization with over 40 years history of fighting for the rights of farmers throughout Pakistan, in every province and down to the Tehsil level. A copy of its certificate of registration and Resolution authorizing the filing of this Writ Petition is attached as Annex B/1 and B/2.

C. Facts 1. Cotton, genetically modified cotton and Bt cotton 1) Conventional cotton stands for monoculturally and chemically grown cotton using uniform, mass produced company seeds and chemical fertilizers. Some farmers may choose to add manure as well to give both the chemicals and stressed, depleted soils a kickstart. 2) Organic cotton applies to cotton grown by traditional, natural methods. the kind that has been grown for thousands of years before modern and genetically modified agriculture came onto the scene. It is grown exclusively from selected, saved seeds and strictly without chemical fertilizers and pesticides. Only green

manure crops (plants that have a rich fertilizing effect on the soil), somposts made from organic wastes, and pesticides made only from plants are used. 3) Genetically modified cotton refers to a plant manipulated and modified in the laboratory by artificial means. This is done by scientists by injecting an alien gene or genes from an unrelated species into the target plant. The goal is to forcibly introduce a trait in the target plant that does not already possess it, and to have it perform in a manner that does not otherwise occur in nature. 4) Bacillus thuriengisis or Bt, is a bacterium which occurs naturally in the soil, but only in very minute amounts. It is active briefly when pests are still in the larvae stage, so that they die when they ingest the Bt. In its natural state, Bt does not occur in or affect the cotton plant itself. Bt has been used by organic farmers only since the seventies but it is used sparingly to repel particular pests. It was early 1990 that cotton was modified by introducing the Bt soil bacterium into it. Bt cotton ones of a number of genetically modified crops was born. With Bt cotton, the Bt toxin becomes part of the cotton plant, rendering the entire plant toxic for particular pests. 2. Cotton and Bt cotton in Pakistan 1) According to the Agriculture chapter of the Pakistan Economic Survey 2012-2013:

Pakistans economy depends heavily on Cotton crop which significantly contributes by providing raw material to the textile industry, such as cotton lint as an export item. It accounts for 7.0 percent of value added in agriculture and 1.5 percent of GDP. During 2012-2013, the crop was sown on an area of 2879 thousand hectares, 1.6 percent more than last year (2835 thousand hectares). The production of 12.0 million bales during the period 2012-2013 against the target of 14.5 million bales resulted in decline of 10.3 percent against the target and decrease of 4.2 percent over the proceeding year production which was 13.6 million bales. Mild attach of Thrips, white fly and Cotton Leaf Curl Virus (CLCV) adversely affected the production of cotton boll which affected the production and yield per hectare as compared to last year. In credible time localized monsoon also affected the crops in Punjab and Sindh.

2) A year-by-year list of cotton production in tonnes and in bales from 1960 to 2013-2014 is provided in Annex C/1. A press release dated 11 December 2013 from the Textile Industry Division of the Ministry of Commerce and Textile Industry regarding estimated production for this year is provided in Annex C/2. 3) Bt cotton was first introduced in Pakistan in 2005 and, as set out in Paragraph C(4) below, in purported compliance with the Biosafety Rules in 2010. However, it is pertinent to note that, historically, the highest production of cotton in Pakistan

took place in 2004-2005, before the introduction of Bt cotton, with some 14.265 million bales of cotton produced thay year. The historical output of cotton in Pakistan has remained static between 11-13 million bales per annum since the introduction of Bt. Cotton and appears not to have benefitted from the introduction of Bt cotton. 4) At present, the area under Bt cotton cultivation and its percentage is as follows: Province Area 000 acres (%) 2012-2013 2013-2014Punjab 19,133 (82.65) 18,773 (87.69)Sindh 441 (83.23) 492 (86.75)Pakistan 15,574 (82.99) 19,265 (87.22) 3. The Regulatory Framework for Genetically Modified Organisms in Pakistan

1) The Cartagena Protocol on Biosafety (the Cartagena Protocol, Annex D/1) is was adopted on 29 January 2000 by the Conference of Parties to the Convention on Biological Diversity and entered into force on 11 September 2003 as a supplement to the Convention on Biological Diversity. The Objective of the Cartagena Protocol (Article 1) is as under:

In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.

2) Pakistan signed the Cartagena Protocol on 4 June 2001 and, in exercise of powers conferred under Section 31 of the Pakistan Environment Protection Act, 1997 (PEPA 1997), the Respondent No. 1 was pleased to make the Pakistan Biosafety Rules, 2005 (the Biosafety Rules, Annex D/2). The Biosafety Rules are applicable to:

(a) manufacture, import and storage of micro-organisms and gene technological products for research whether conducted in laboratories of teaching and research, research and development institutes and private companies involved in the use and application of genetically modified organisms and products thereof

(b) All work involved in field trial of genetically manipulated plants, animals (including poultry and marine life), micro-organisms and cells; and

(c) Import, export, sale and purchase of living modified organism, substances

or cells and products thereof for commercial purposes. 3) Rule 11 of the Biosafety Rules stipulates:

No person shall import, export, sell, purchase or trade living modified organisms of substances or cells and products thereof for any purpose, without the prior obtaining of licence from the Federal Agency.

4) The Biosafety Rules sets up the National Biosafety Committee (NBC), the Technical Advisory Committee (TAC) and recognizes Institutional Biosafety Committees notified by institutions related to biotechnology. It is the function of the NBC to, interalia, establish standards and procedures for risk assessment and labeling of living modified organisms, substances or cell and products thereof and to consider the applications for import, export or commercial release of living modified organisms causing or likely to cause risk to public heath, safety or environment. It is the function of the TAC to, interalia, examine applications and recommend to the NBC on permitting or otherwise laboratory work, field work or release of living modified organism, substances, cells and products thereof. It is the function of Institutional Biosafety Committees to, interalia, assist in the activities of the NBC and TAC. It is pertinent to mention that Rule 4(1)(a) of the Biosafety Rules designate the Secretary, Ministry of Environment as Chairperson of the NBC. 5) The NBC, consequent upon extensive deliberations with all stakeholders, concluded that there was a national need to develop biosafety guidelines to control laboratory research, field studies and commercial release of GMOs and products thereof. Accordingly, the Respondent No. 1, through the then-existing Ministry of Environment, in exercise of the function conferred by Section 6(o) of PEPA 1997, issued National Biosafety Guidelines (the Biosafety Guidelines, Annex D/3) in May 2005. The Executive Summary of the Biosafety Guidelines encapsulates the scope and function of the same, Chapter 1.1 sets out concerns regarding the use of biotechnology and Chapter 1.2 highlights the needs for biosafety regulation. The Biosafety Guidelines exhaustively deal with the manner and procedure for laboratory work, fieldwork and grant of commercial licences for genetically modified organisms. 6) Rule 11(2) of the Biosafety Rules stipulates:

Applicants seeking licence for activities shall submit an application prepared in conformity with the requirements of the Biosafety Guidelines to the Federal Agency accompanied with a prescribed fee.

7) The Biosafety Rules and Biosafety Guidelines, read together, provide a complete and comprehensive regulatory framework for the use of genetically

modified organisms in Pakistan. However, the legality of this framework is under question after the 18th Amendment and the issuance of the Punjab Biosafety Rules, 2014 on the same subject as the Pakistan Biosafety Rules, 2005. 8) Following the 18th Amendment, the Punjab Assembly amended PEPA 1997 vide the Punjab Environmental Protection (Amendment) Act, 2012 to the Punjab Environment Protection Act, 1997. 9) In exercise of powers conferred under Section 31 of the Punjab Environment Protection Act, 1997, the Government of Punjab was pleased to notify the Punjab Biosafety Rules, 2014 (Annex D/4) to implement the provisions of the Convention on Biological Diversity. 10) The Punjab Biosafety Rules envisage the same system of Bio-Safety Committee, Technical Advisory Committee and Institutional Biosafety Committees and confers onto these the same powers and functions as in the Pakistan Biosafety Rules, 2005 (save that the Bio-Safety Committee may inspect laboratories and facilities at any time subsequent to certification and without notice). There are also other, small differences between these two sets of Rules. Nevertheless, it is pointed out that the Punjab Biosafety Rules, 2014 overlap onto the jurisdiction of the Pakistan Biosafety Rules, 2005. No guidelines have been issued under the Punjab Biosafety Rules, 2014 to the knowledge of the Petitioner. 4. Previous Working of the TAC and NBC in re Bt Cotton 1) The NBC has, in 2010, conditionally approved eight cases of commercialization of Bt cotton varieties. However, the method and manner in which these cases were approved point to the lack of capacity and arbitrary nature of decision making by the NBC. In this regard, it is brought to the attention of the Honourable Court: a) During the 12th meeting of the TAC held on 25 February 2010, the following

eight cases of commercialization of Bt cotton varieties was taken up and discussed:

i) Sitara-008; ii) Neelum-121; iii) MG-06; iv) FH-113; v) Ali Akbar-703; vi) Ali Akbar-802; vii) IR-NIBGE-3701; and viii) IR-1524 (IR-NIBGE-2)

b) During the deliberation of these Bt cotton varieties, the following were

minuted:

4. Eight cases for commercialization of Bt cotton varieties were discussed collectively as per committee decision because of having same gene/event (i.e. Cry1Ac gene (MON531 event). Deputy Director (NBC) informed that most of the applicants have not submitted self-generated data of confirmation and verification of the and cry1Ac gene (MON531 event), and ruling out the other and/or related genes/events along with quantification of gene expression levels in different parts of plants and different stages of plants growth from an authentic Laboratory even after the communication of NBC decisions. 5. The results of NCBtT trials generated by PCCC of all the cases allowed by NBC were presented. It was informed that all varieties containing Monsantos cry1Ac gene (MON531 event) inserted by back crossing, are susceptible to Cotton Leave Curl Virus (CLCV). It was also highlighted that the expression level less than 1.8g/g of fresh weight (fwt) in cotton plant parts would not lead towards the killing of all the lepidopteron pests. All thee eight (8) varieties have very low levels of gene expression (Bt cotton protein in cotton plant parts). Pest (bollworm) highly likely to develop resistance to Bt toxin due to low level of toxin protein product of Bt gene. It would be impossible to control pests even with genuine versions of Bt cotton crops having adequate expression level of Bt toxin protein in cotton plants. These facts initiated discussion on the issue and it was also explained that army work and other adult chewing pest require 1.8g/g fwt level of Bt gene expression to control. It was told that the early stages of pest life cycle requires almost 200ng/g fwt of Bt protein in the young leaves of the cotton plant where the pest insects lay their eggs and hatch to chewing pests. The hatched pests are very tender and could be destroyed at the prevailing level of expression in the Bt cotton leaves. 6. It was informed by one applicant that they are following the standard for gene expression level of fresh leaf as per approved SOPs and Cotton Commissioner, MinFA endorsed the point. The center is unaware of any such standard of expression in SOPs.

c) The 12th meeting of the TAC made the following recommendations with regards the eight Bt cotton varieties:

17. The eight (8) varieties of GM cotton cry1Ac gene (MON 531 event) were recommended by TAC for consideration of environmental approval on the basis of NCBtT data generated by Pakistan Central Cotton Committee (PCCC) and biosafety data generated by NIBGE subject to the following conditions:

i. All varieties should have to enhance the expression of Bt genes to the sufficient levels required to kill all lepidoperon pests. The prevailing

levels of Bt toxin would cause some resistance development in chewing pests that would lead to worse pest attacks and cause economic loss to the cotton crop of Pakistan.

ii. The varieties should be resistant or tolerant to Cotton Leaf Curl Virus (CLCV) to avoid further effects on the fragile economy of the country.

iii. The purity of varieties should be enhanced to reduce the variability.

d) The application for commercialization of the eight Bt cotton varieties was raised in the 8th meeting of the NBC held on 25 March 2010, in which the following was minuted:

4.Eight cases for commercialization of Bt cotton varieties and one hybrid were discussed collectively because of same nature {i.e., having cry1Ac gene (MON531 event)}. Deputy Director (NBC) informed that most of the applicants had not submitted environmental and biosafety data as per decisions of 6th and 7th NBC held on March 5, 2009 and November 23, 2009 respectively. 5. All the eight (8) varieties have very low level of gene expression (Bt toxin protein in cotton plant parts) and likely to develop resistance in bollworms. It would not be possible to control resistant pests. It was highlighted that Army Worm and other bollworm require 1.8g/g fresh weight (fwt) Bt protein to control. It was told that the early stages of pest life cycle requires almost 200 ng/g fwtBt protein for killing of pest. The gene expression level in the young leaves of cotton plant, where the pest/ insects lay eggs and hatch to chewing pests, is sufficient.

e) The 8th meeting of the NBC deliberated on these eight Bt cotton varieties and

one application for development of High Yield Insect Resistant Cotton Lines II Bt cotton hybrid GN-2085 and its discussion is minuted as under:

16. The presentation of the cases before NBC initiated a long discussionsabout the development of resistance in the Lepidopteron (chewing) insects ofcotton due to lower levels of Cry1Ac protein in the candidate varieties which was less than 0.7 g/g fresh weight (fwt) of cotton leaves against the standard of 1.8 g/g fwt of cotton leaves for complete kill of the pest. 17. DG, Pak-EPA informed that after the TAC meeting, a report had been posted on M/s Monsanto and other biotechnology websites that resistance had been developed in the chewing pest of cotton (Pink bollworm) and Army bollworm in some districts of India. Therefore, it is very important to consider the issue of low expression of cry1Acgene in the candidate varieties and likelihood of resistance development among chewing pest of cotton. The commercialization of these low expression varieties may lead to destruction of cotton crop and socio-

economic/ financial loss to the already fragile economy of Pakistan. The representatives of Ministry of Food and Agriculture (MinFA), Pakistan Atomic Energy Commission (PAEC), Pakistan Agricultural Research Council (PARC), Director General, Federal Seed Certification and Registration Department (FSC&RD) and Director General, Agri (Research), Govt. of Punjab, differed with DG, Pak-EPAs point of view and stated that the news has no authenticity as the source was not official. They were of the view that getting resistance by some pests was not unusual and strongly recommended that the Environmental Approval may be accorded onprovisional basis for a period of 3 years and all the above organizations will be responsible for any untoward effects of these Bt cotton varieties and hybrid. They also proposed a monitoring committee to monitor all the activities of commercialized Bt cotton varieties and hybrid to furnish regular reports to NBC. NBC may withdraw its approval on the basis of any authentic report of mismanagement and misstatement. On a question of DG Pak-EPA, Cotton Commissioner stated that M/o Food & Agriculture takes full responsibility of pest resistant issue.

f) The 8th meeting of the NBC came to a decision on the nine cases (eight Bt

cotton varieties and one application for development of GN-2085) as under:

Decisions for case 1-9

1. Since there was a strong difference of opinion between technical experts of Pak-EPA and MINFA and PAEC on the minimum level of gene expression and reported pest resistance in some districts of India. It was agreed that the environmental clearance of the above mentioned nine varieties may be linked to the outcome/findings of a committee to constitute under the chairmanship of Secretary, MinFA and having senior technical level experts representation from Pak-EPA and all concerned technical organizations like PARC, PAEC, FSC&RD, NIBGE, Ayub Research Institute, Faislabad, Provincial Agriculture Departments, Provincial EPAs, Ministry of Health and Ministry of Science and Technology etc. This committee may consider:

i. The reported issue of pest resistance developed in some

districts of India due to Bt cotton ii. Need for adequate gene expression level in Bt cotton iii. Tolerance of Bt variety to Cotton Leaf Curl Virus (CLCV)

2. Thereafter resistance management plant may be developed and

executed by Federal and Provincial departments and NBC should be kept informed.

g) The committee constituted by the NBC was convened on 15 April 2010 to discuss the concerns raised during the 8th meeting of the NBC. Without addressing the main concerns of the pest resistance found in India and minimum expression level of Bt protein, this Committee came to the following conclusions:

1. No authentic data in Pakistani condition is not available regarding any

incidence of bollworm resistance build up of Bt cotton.

2. The Committee thoroughly reviewed the concerns of NBC/MOE and decided that insect resistance monitoring committees may be formed at federal/provincial levels and data would be provided to Ministry of Environment on a regular basis.

3. Ministry of Environment is requested to issue Environmental Clearance for commercialization of the Bt cotton varieties and hybrids submitted in its 8th meeting immediately because of the sowing of cotton is under way for the 2010-2011 crop.

h) Thus, without fully investigating strong evidence that pests were developing

resistance to the Bt cotton protein/gene and without establishing minimum levels of expression required for Bt varieties, the eight applications for commercialization of Bt cotton varieties stood approved approved 2010. The Petitioners have record of incidents of pest resistance in India and elsewhere to Bt cotton and may be allowed to provide it to this Honourable Court if deemed necessary. It is also pointed out that the TAC has repeatedly indicated the lack of capacity in the regulatory system and risk management protocols for genetically modified organisms and, despite these indications, decisions to approve commercial use of Bt cotton continues unchecked.

1. Impugned 18th Meeting of TAC 1) The 18th meeting of the TAC was held on 13 February 2014 which considered:

a) Nine cases of application of commercialization of Bt cotton varieties scrutinized by a TAC Sub-Committee for Commercialization of GM Cotton, namely: i) MNH-886; ii) FH-114; iii) CIM-598; iv) Tarzan-1; v) Sitara-009; vi) NS-131; vii) NS-141; viii) IR NIBGE-901; and

ix) IR NIBGE-3; and

b) Fifteen cases of application of commercialization of Bt cotton varieties made on the written request of the Textile Industry Division, namely:

i) VH-1; ii) CIM-599; iii) CIM-602; iv) FH-118; v) FH-142; vi) IR NIBGE-824; vii) IUB-222; viii) CEMB-33; ix) Sayban-201; x) Sitara-11M; xi) A-555; xii) KZ-181; xiii) Tarzan-2; xiv) CA-12; and xv) BH-178.

2) The recommendations of the 18th TAC meeting with regards to the nine cases of application for commercialization of Bt cotton were minuted as under:

9. TAC recommended cases for commercialization of Bt cotton for a period of two years evaluated by the TAC Sub-Committee for Commercialization of Bt Cotton to National Biosafety Committee with following observations:

i. Pakistan is heading towards commercialization of GM crops which needs

strong regulatory system in place with well trained staff and equipped laboratory. National Biosafety Center (NBC) was established in 2006 as a project for regulation of GMOs in the country. Since the project will end on 30th June 2014, TAC strongly recommends National Biosafety Centre (NBC) may be transferred to non-development side.

ii. Keeping in view the dire need of independent laboratory for quantitative

and qualitative testing of GMOs, National Biosafety Laboratory may be established on project basis.

iii. A proper refugia and buffer zone mechanism (pack in bag) must be

adopted to address issues of gene flow from Bt to non Bt plants avoiding development of pests resistance. Awareness programs should be initiated for farmers in this regard.

iv. Gene pyramid (double or triple genes) to slow down the process of development of pest resistance and safeguarding economic loss due to cotton crop may be encouraged.

v. Labeling of bags containing Bt cotton with prominent colors and coding

along with tag as GM Cotton Seed is necessary absolute. vi. No studies related to animals feeding of cotton seed cake (Binola) yet

conducted locally to assess the impact of Bt cotton on animal & human health. There is dire need to conduct these studies to asses health risks if any.

vii. TAC directed applicants to submit their cases as per prescribed

Procedures/Proformas given in National Biosafety Guidelines, 2005 and to present cases in TAC in accordance to the prescribed format which would be circulated by the secretariat of the National Biosafety Center.

3) The recommendations of the 18th TAC meeting with regards to the fifteen cases of application for commercialization of Bt cotton were minuted as under:

11. The TAC made following recommendations:

i. Considering the same event i.e. MON531 the TAC recommended referring cases at S. No. 1-7, 9-13 and 15 would be forwarded to National Biosafety Committee subject to observations made at Para 9 and provision of data of toxin level by all four designated laboratories along with other relevant data. The cases with double genes at S. No. 8 & 14 would be forwarded to TAC Sub-Committee for Commercialization of Bt Cotton for further evaluation.

ii. As per decision of sub-committee the Environmental Approval for

commercialization will be issued for a period of two years. iii. Cotton Commission showed his satisfaction on the efficacy of the above

mentioned varieties and data submitted by the applicants. 4) It is these decisions of the 18th meeting of the TAC that the Petitioners impugn in the present petition, for reasons set out in paragraph D. Grounds below. 5. Impugned Office Memorandum and Impugned Direction 1) Vide letter dated 6 August 2013 (Annex E/1), the Chief Minister of Punjab wrote the Federal Minister of Climate Change informing him that (i) eight varieties of Bt cotton seed approved by the Punjab Seed Council 16 February 2013; and (ii) fifteen varieties of Bt cotton seed approved by the Punjab Seed

Council on 23 May 2013 awaited the approval of the NBC and requested that a meeting of the NBC be convened at the earliest. 2) It is pertinent to mention that six of eight varieties of Bt Cotton approved by the Punjab Seed Council on 16 February 2013 have been conditionally approved by the TAC in its 18th meeting as per paragraph 5(2) above and the fifteen varieties of Bt cotton variety approved by the Punjab Seed Council were conditionally approved by the TAC in its 18th meeting as per paragraph 5(3) above. 3) Because of the devolution of the subjects of environment pollution and ecology through the Constitution (Eighteenth Amendment) Act, 2010 (the 18th Amendment), the Climate Change Division sought an opinion from the Ministry of Law, Justice and Human Rights as to whether the Pak-EPA can convene a meeting of the NBC under the NBC Rules having members of the Provincial EPDs/Agencies. The 18th Amendment raises the questions of whether the NBC, which is supposed to be chaired by the Secretary, Ministry of Environment, can convene in a meeting in the post-18th Amendment scenario. In an Office Memorandum on the subject of Applicability of Pakistan Environment Protection Act, 1997 after 18th Amendment in the Constitution dated 24 September 2013 (Annex E/2), the Climate Change Division was informed that after the 18th Amendment, the NBC could not convene a meeting under the National Biosafety Rules. 4) A meeting was convened by the Additional Secretary, Ministry of Inter Provincial Coordination on 2 October 2013 in which the Issuance of Bio-Safety Licences for BT Cotton Varieties in Punjab was discussed. The issue of the devolution of the subjects of environment pollution and ecology were discussed and the legal impediment of convening a meeting of the NBC pointed out. The minutes of the said meeting (Annex E/3) state the following recommendation was made:

9. After detailed deliberations, the meeting unanimously recommended that in order to resolve the issue, an Ordinance may be promulgated to provide legal cover for issuance of Bio-Safety Licences for BT Cotton Varieties.

5) Quite surprisingly, the Impugned Office Memorandum of 29 January 2014 has in partial modification of its opinion vide No. 600/2013-Law-1 dated 24 September 2013, stated that the Climate Change Division may convene the meeting of the National Biosafety Committee for the time being in The National Interest for the commercialization certificates of cotton seed varieties. It is pertinent to mention that the Impugned Office Memorandum was not in response to the query of the Climate Change Division but to the concerns of the Textile Industry Division. 6) The Impugned Direction follows from the Impugned Office Order and states that It has been desired that Climate Change Division may coordinate with

Textile Industry Division and Provincial Governments to convene a meeting of National Biosafety Commission for an early decision in the matter. It has further been desired that the Textile Industry Division will pursue the matter for its early resolution. 6. The Impugned Meeting of the NBC 1) Vide notice dated 6 March 2014 (Annex F/1) issued by the Deputy Secretary (Admin), Climate Change Division, the 12 meeting of the NBC was called at 12pm on 12 March 2014. During this meeting, it is reported (Annex F/2) that the NBC approved the commercialization licences of some 30 cotton and corn varieties.

D. Grounds 1. The 12th meeting of the NBC, Impugned Office Memorandum, Impugned Direction and entire proceedings of the 18th meeting of the TAC violate the 18th Amendment and are illegal, void ab initio and of no legal effect. In this regard, it is submitted: 1) Vide the 18thAmendment, the Concurrent Legislative List of the Constitution was abolished. The Concurrent List included the subjects of environment pollution and ecology. With the abolition of the Concurrent List, the National Assembly may not legislate on any subject not enumerated in the Federal Legislative List unless requested in terms of Article 144 of the Constitution. Article 144 of the Constitution states:

Power of Majlis-e-Shoora (Parliament) to legislate for one or more provinces by consent. (1) If one or more Provincial Assemblies pass resolutions to the effect that the

Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, it shall be lawful for the Majlis-e-Shoora (Parliament) to pass an Act for regulating that matter accordingly, but any act so passed, as respects in Province to which it is applies, be amended or repealed by Act of the Assembly of that Province.

2) The Office Memorandum dated 24 September 2013 issued by the Ministry of Law, Justice and Parliament Affairs correctly states as under:

1. The undersigned is directed to refer to Climate Change Divisions O.M. No. F.1(10)/2012(Legal) dated 3rd September 2013 on the above subject and to state that the subject of environment pollution and ecology was borne on Entry 24 of the erstwhile Concurrent Legislative List in the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan. Through the Constitution (Eighteenth Amendment) Act, 2010 (X of 2010), the aforesaid Concurrent

Legislative List was abolished and Environment Protection Act, 1997 has become provincial subject. However, by virtue of paragraph (d) of Article 142 of the Constitution of the Islamic Republic of Pakistan it still continues a valid law to the extent of Islamabad Capital Territory. Therefore, the Federation can administer the aforesaid Act within the limit of Islamabad Capital Territory whereas in Provinces it stands transferred to them and they have the executive as well as legislative authority with regard to Environment Protection Act, 1997 within their territorial limits. Since the mandate of the Federation regarding the Environment Protection Act, 1997 extend to Islamabad Capital Territory, it can very well administer the law within the aforesaid territory. 2. The issue at (ii) whether Pak-EPA can convene NBC meeting under the NBC Rules having members of the Provincial EPDs/Agencies is answered in the negative.

3) The Impugned Office Memorandum, in partial modification of the Office Memorandum of 24 September 2013, reasons as under:

4. However, since the Minister for Agriculture, Government of Pakistan and the Director-General, Environment Protection Agency, Government of Baluchistan vide their letters dated 09.01.2014 and 10.01.2014 respectively, have conceded to the jurisdiction of National Biosafety Committee constituted by the Federal Government, and the other to provinces have not so far finalized any legislation in this regard, therefore the Climate Change Division can convene a meeting of the National Biosafety Committee for the time being in The National Interest for the commercialization certificate of cotton seed varieties.

4) It is submitted that that the reasoning in the Impugned Office Memorandum is against the letter and spirit of Article 144 of the Constitution as no province has requested, through resolution passed by its Assembly, the Federal Government to intervene in the subject of biosafety. In this regard, the Seed Act, 1976 is referred to as is an example of how Provincial legislatures may request the Parliament to legislate on a subject not within the legislative competence of Parliament. Since this process has not been followed in the instant case, the reasoning of the Impugned Office Memorandum is legally flawed and cannot be sustained. 5) Following the 18th Amendment, changes were made to the Federal Government Rules of Business. As there was no longer a role for a Ministry of Environment, the same was changed into a Ministry of Climate Change and subsequently downgraded to a Climate Change Division. According to the Federal Government Rules of Business as of August 2012, the following are the duties of the Climate Change Division:

1. National Disaster Management Authority.

2. Pakistan Environment Protection Council. 3. Pakistan Environment Protection Agency. 4. Pakistan Environmental Planning and Architectural Consultants Limited

(PEPAC). 5. Global Environmental Impact Study Centre, Islamabad. 6. National policy, plans, strategies and programs with regard to disaster

management including environment protection, preservation, pollution, ecology, forestry, wildlife, biodiversity, climate change and desertification.

7. Coordination, monitoring and implementation of environmental agreements with other countries, international agencies and forums.

6) It is pointed out that administrative control of the NBC is not with the Climate Change Division. It is also submitted that nowhere does the Textile Industries Division have any responsibility over the approval of cotton seeds. The Ministry of Law, Justice and Parliament affairs cannot, via Impugned Office Memorandum, change the Federal Government Rules of Business. 7) Similarly, the Impugned Direction, in as much as it follows the logic of the Impugned Office Memorandum and calls for a meeting of the NBC, is violative of the 18th Amendment. 8) Since the Biosafety Rules were made in exercise of powers conferred by the Pakistan Environment Protection Act, 1997 and the regulation of the same has been devolved to the provinces, no meeting of the TAC can be summoned by the Federal Government, especially meetings in which issues outside the territorial jurisdiction of the Islamabad Capital Territory are to be decided upon. The 18th meeting of the TAC is, therefore, illegal and all its recommendations, in as much as they pertain to Btcotton seeds to be made available outside the Islamabad Capital Territory, are void ab initio. 2. The Pakistan Biosafety Rules, 2005 no longer remain in force after the notification of the Punjab Biosafety Rules, 2014 and any and all proceedings thereunder are illegal, without jurisdiction, illegal and void abinitio. In this regard, it is submitted: 1) Article 270AA(2) of the Constitution provides:

Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all laws including President's Orders, Acts, Ordinances, Chief Executive Orders, regulations, enactments, notifications, rules, orders or bye-laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day of October, two thousand and three (both days inclusive) and still in force shall, continue to be in force until altered, repealed or amended by the competent authority.

Explanation:- For the purposes of clause (2) and clause (6), "competent authority" means,- (a) in respect of Presidents Orders, Ordinance, Chief Executives Orders and

all other laws, the appropriate Legislature; and (b) in respect of notifications, rules, orders and bye-laws, the authority in

which the power to make, alter or amend the same vests under the law. 2) The Pakistan Biosafety Rules, 2005 therefore remained in force until the notification of the Punjab Biosafety Rules, 2014 as the latter was issued in exercise of powers conferred onto the Government of Punjab by the Punjab Environment Protection Act, 1997 (the amendment to the PEPA 1997). 3) The NBC, being a creature of the Pakistan Biosafety Rules, 2005 accordingly, ceased to function (at least to the extent of the Punjab) as of the notification of the Punjab Biosafety Rules, 2014 and creation of the Bio-Safety Committee for the province of Punjab. All decisions, orders etc. of the NBC after the notification of the Punjab Biosafety Rules, 2005 are therefore, null and void, of no legal effect and incapable of creating any legal rights. 3. The proceedings of the 18th meeting of the TAC violate the provisions of the Cartagena Protocol and are illegal, void ab initio and of no legal effect. In this regard, it is pointed submitted: 1) The Objective of the Cartagena Protocol is to ensure adequate levels of protection in the field of safe transfer, handling and use of living modified organisms resulting from modern biotechnology. This objective is to be pursued in light of the Precautionary Principle. However, in none of the meetings of the TAC or NBC, especially the 18th meeting of the TAC, can observance of the Precautionary Principle or Objective of the Cartagena Protocol to be found. 2) In the 18th meeting of the TAC, some 23 applications for commercial licence of Bt cotton seeds were recommended to the NBC even though the TAC itself was of the opinion there was a dire need of independent laboratory for quantitative and qualitative testing of GMOs and that there were No studies related to animals feeding on cotton seed cake (Binola) yet conducted locally to asses the impact of Bt cotton on animal and human health. In the circumstances, it cannot be argued that the TAC was proceeding with the Precautionary Principle in mind. 3) With respect to the fifteen cases of commercialization of Bt cotton considered by the TAC on the written request of the Textile Industries Division, it is pointed out that nowhere in the minutes of the TAC meeting is it disclosed that these fifteen applications had followed the procedure set out in Biosafety Guidelines. In fact, the TAC has made the recommendation conditional on the provision of data and further evaluation, which is violative of the Precautionary Principle and the procedure the Cartagena Protocol requires for approval of commercial use of genetically modified organisms.

4. The proceedings of the 18th meeting of the TAC violate the Biosafety Rules and Biosafety Guidelines and the deliberations, decision and recommendations made and reached therein are illegal, void ab initio and of no legal effect. In this regard, it is submitted: 1) Chapter 12 of the Biosafety Guidelines provides a Format for Application for Commercialization of Genetically Engineered Organisms and Products Thereof and states:

When GMOs and /or products thereof have been adequately filed tested and enough data accumulated to show that the experimental organisms are free from any risk, an application may be made requesting the said GMO or its produce should no longer be considered as regulated material. The application/project proposal must contain, in sufficient detail, field performance data, as well as relevant molecular biology data, to ensure that the reader would be able to ascertain that the material poses no risk. The proposal/application may also include views/decision on similar product (not the same product) and the data obtained elsewhere (not necessarily by the applicant) whether favorable or unfavorable to the position of no risk status.

2) Chapter 12.1 of the Biosafety Rules provides for Instruction for the Preparation of the Application for Commercialization of Genetically Engineered Organisms and Products thereof and provides exhaustive details thereof. 3) The minuted proceedings of the 18th TAC reveal that none of the applications for commercialization of Bt cotton variety contained the information required by the Biosafety Guidelines and that the considerations of the TAC were unguided by the procedure and principles contained therein. The TAC, in its 18th meeting, observed weaknesses in the regulatory system related to ensuring biosafety; that more research was needed to assess health and safety impacts due to GMOs; and did not assess any of the applications on the basis of the risk posed by the use of such Bt cotton. The deliberations of the 18th meeting of the TAC suffer from arbitrariness and cannot be sustained. 4) The non-application of the TAC of the Biosafety Rules while considering applications for commercialization of Bt cotton varieties are therefore violative of the Biosafety Guidelines and the Biosafety Rules and are, therefore, illegal, void abinito and of no legal effect. 5. That the proposed meeting of the NBC to consider the 23 applications for commercial licence of Bt cotton is violative of the 18th Amendment and is illegal. In this regard, it is submitted that in terms of the Biosafety Rules, the Chairman of the NBC is to be the Secretary, Ministry of Environment. However, after the 18th Amendment and abolishment of the Ministry of Environment, no Secretary, Environment exists to chair a meeting of the NBC.

2. Prayer

In light of the above, it is respectfully prayed that this Honorable Court may be pleased to: 1. Declare the National Biosafety Committee established under the Pakistan

Biosafety Rules, 2005 to be non-functioning after the 18th Amendment;

2. Declare the Impugned Office Memorandum of the Ministry of Law, Justice and Human Rights dated 29 January 2014 illegal, void ab initio and of no legal effect;

3. Declare the Impugned Direction dated 21 February 2014 of the office of the

Prime Minister of Pakistan illegal, void ab initio and of no legal effect; 4. Declare the meeting, deliberations and recommendations made by the TAC in

its 18th meeting held on 13 February 2014 to be illegal, void abinito and of no legal effect;

5. Declare any and all decisions of the NBC in its 12th meeting held on 12 March

2014 to be null and void and without any legal effect; 6. Declare any and all licences issued by the NBC in its 12th meeting held on 12

March 2013 to be null and void and of no legal effect; 7. Declare the Pakistan Biosafety Rules, 2005 to no longer be of legal effect

within the province of Punjab in light of the issuance of the Punjab Biosafety Rules, 2014

8. Pass any other such order as may be just and equitable given the facts and

circumstances of the case.

Through

Ahmad Rafay Alam Advocate of the High Courts

PLH CC 18857

Saleem, Alam & Company H 40, St 2, Sarwar Colony

Sarwar Road, Lahore Cantonment Lahore

Filed on: _______ April 2014 Note:

List of Books: (1) Pakistan Environment Protection Act, 1997; (2) Pakistan Biosafety Rules, 2005 (3) National Biosafety Guidelines, 2005 (4) Federal Government Rules of Business, as of August 2012 (5) Punjab Biosafety Rules, 2014 Certified that: (1) The Writ Petition has arisen from a violation of law on part of the Respondents; (2) There is no other alternate or efficacious remedy available to the Petitioner for the relief claimed herein; and (3) As per instructions from the client, this is the first petition on the subject on behalf of the Petitioner. Counsel

Before the Honorable Lahore High Court at Lahore

Writ Petition No. _____________ of 2014

Kissan Board Pakistan vs

The Federation of Pakistan and others

Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Affidavit of Ahmad Rafay Alam, Advocate of the High Courts, House 40, Street 2, Sarwar Colony, Sarwar Road, Lahore Cantonment, Lahore.

Respectfully Submitted: That I, the above named deponent, do hereby solemnly swear and affirm that the contents of the above captioned Writ Petition are true and correct to the best of my knowledge and belief and that nothing has been concealed therein.

Deponent Verification: Verified on oath on this _____ day of April 2014 that the contents of the above affidavit are true and correct and that nothing has been concealed therein.

Deponent

Before the Honorable Lahore High Court at Lahore

Writ Petition No. _____________ of 2014

Kissan Board Pakistan vs

The Federation of Pakistan and others

Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Index of Documents

Respectfully Submitted: No. Particulars Annex Page 1 Writ Petition with affidavit 1-21 2 Impugned Office Memorandum dated 29

January 2014 A/1 22-24

3 Impugned Direction 21 February 2014 A/2 25 4 Petitioners Certificate of Registration B/1 26 5 Authorization to file Petition B/2 27 6 Year-by-Year Cotton Production in Pakistan C/1 28-29 7 Ministry of Commerce and Textile Industry

Press Release C/2 30-31

8 Cartagena Protocol D/1 32-57 9 Pakistan Biosafety Rules, 2005 D/2 58-68

10 National Biosafety Guidelines, 2005 D/3 69-206 11 Punjab Bio-safety Rules, 2013 D/4 207-216 12 Chief Minister Punjabs letter dated 6 August

2013 E/1 217-218

13 Ministry of Law Office Memorandum dated 24 September 2013

E/2 219

14 Minutes of meeting of Ministry of Inter Provincial Coordination

E/3 220-222

15 Notice of 12th Meeting of NBC F/1 223-225 16 Newpaper report of 12th Meeting of NBC F/2 226-232 17 Stay Application with affidavit 233-235 18 Application for Production of Documents with

Affidavit 236-238

19 Application to dispense with certified copies of documents with affidavit

239-240

Through

Saleem, Alam & Company H 40, St 2, Sarwar Colony

Sarwar Road, Lahore Cantonment Lahore