Role of judiciary in environment cases


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Role of judiciary in environment cases

  1. 1. Brain Storming Judiciary Symposium on Illegal Trade of ODS Paris 9-10 June 2011 THE ROLE OF JUDICIARY IN ENVIRONMENTAL CASES by Manjit Iqbal UNEP Consultant
  2. 2. ROLE OF JUDICIARY <ul><li>Judiciary is a key mechanism for ensuring legal effectiveness of environmental law and institutional regimes. </li></ul><ul><li>A judiciary well prepared and informed of the rapidly expanding environmental law, plays a critical role in the implementation and enforcement of environmental law: </li></ul><ul><ul><li>through the successful conclusion of environmental cases particularly cases of transnational crimes providing a strong disincentive to non-compliance of environmental laws. </li></ul></ul><ul><ul><li>enforcement of environmental rights including right to information. </li></ul></ul><ul><ul><li>by providing access to the public and civil society to judicial procedures. </li></ul></ul><ul><ul><li>through coherent networking among judiciaries and exchange of judgments and sharing information on environmental cases and international jurisprudence. </li></ul></ul>
  3. 3. ENVIRONMENT DISPUTES <ul><li>Environment Disputes are often brought to courts as tort law cases claiming compensation for damages. Under tort law, victims must burden risk and cost to establish: </li></ul><ul><li>Illegal act or misconduct of the defendant. </li></ul><ul><li>Intention or negligence of the defendant </li></ul><ul><li>Cause- effect relationship </li></ul><ul><li>Detail of damages </li></ul><ul><li>Large sum of trial cost is required to file litigation (Court fees) </li></ul><ul><li>Other costs such as cost of investigations,lawyer fees etc </li></ul><ul><li>It takes a very long time to reach the final decision and even the final decision of the court does not solve all the issues of dispute. </li></ul>
  4. 4. PRECAUTIONARY PRINCIPLE <ul><li>scientific uncertainty should not be used as a reason not to take action with respect to a particular environmental concern; </li></ul><ul><li>those engaging in a potentially damaging activity should have the burden of establishing the absence of environmental harm; and </li></ul><ul><li>a state may restrict imports based on a standard involving less than full scientific certainty of environmental harm. </li></ul><ul><li>In Indonesia, a court asserted that although the precautionary principle had not been explicitly adopted in national legislation, it had been recognized as a principle and included in various international declarations to which Indonesia is a Party. </li></ul><ul><li>{MANDALAWAANGI LANDSLIDE CLASS ACTION CASE} </li></ul>
  5. 5. POLLUTER PAYS <ul><li>Historically, pollution control costs have been borne by the community at large, rather than by those who pollute. The polluter pays principle has changed this by obliging the polluter to bear the costs of pollution control.  </li></ul><ul><li>Court case </li></ul><ul><li>The Indian Supreme Court has said that once an activity carried on is hazardous or inherently dangerous, the person carrying on that activity is liable to make good the loss caused to any other person by that activity. (Indian Council for Environmental Legal Action v.Union of India, AIR 1996 SC 1446 (1996), 2 SCR 503, 3SCC 212 (1996). </li></ul>
  6. 6. LOCUS STANDI or RIGHT to SUE <ul><li>Any person may bring an action for the protection of environment even though he / she is not directly affected by the activity or omission. </li></ul><ul><li>While enforcement action and criminal prosecutions are most commonly brought by public authorities, many jurisdictions now allow citizen complaints to be filed. </li></ul><ul><li>Traditional locus standi rules require a party bringing suit to have a sufficient or personal stake in the outcome of a case to distinguish the individual from other persons or the public at large. </li></ul><ul><li>The plaintiff must have experienced a distinct injury traceable to the alleged conduct of the defendant.. </li></ul><ul><li>  </li></ul>
  7. 7. LOCUS STANDI CONT. <ul><li>Expanding legal standing provisions to include NGOs and the public is one way of improving access to judicial proceedings. </li></ul><ul><li>Court Case </li></ul><ul><li>In this landmark case in Philippines, the court ruled that the Plaintiffs who in this case were minors accompanied by their parents had the right to sue on behalf of succeeding generations because every generation has a responsibility to the next to preserve the rhythm and harmony of nature for the full enjoyment of a balanced and healthy ecology. { OPOSA Vs. FACTRON} </li></ul>
  8. 8. RETROACTIVE EFFECT <ul><li>Judges in environmental crimes may face the issue of retroactivity of environmental statutes and regulations. Law is presumed to be prospective only, but environmental law that seeks to address an ongoing harm to the environment may need to apply to pre-existing activities and operations if it has to be effective. </li></ul><ul><li>In such cases, judges may infer the need for retroactivity in order to give effect to statutory objective. Retroactive operation of the law may sometimes be based on the “polluter pays” principle, reason being, that even if the condition resulted from conduct arguably lawful at an earlier time, it is more appropriate for the entity creating the harmful condition to pay for the cost of the pollution than impose the costs on the society at large. </li></ul>
  9. 9. CHOICE OF LAW <ul><li>Choice of law in environmental cases is mostly posed in transboundary matters, where the activity takes place in one state and the harm occurs in another. The court with jurisdiction will determine the choice of law. </li></ul><ul><li>Generally, courts apply the domestic statute but pre-emptive national laws, public policy concerns and the principle of non-discrimination may affect the choice. The latter contemplates that in no case should the plaintiff’s complaint be judged according to a rule less favorable than those that would be used to judge the matter in the state where the activities took place. (Art 3 (2) of the 1974. Nordic Environmental Protection Convention guides judges to apply foreign law when its substance is more favorable than the local law. </li></ul>
  10. 10. RESTITUTION AND REMEDIATION <ul><li> In many legal systems, including the international one, restitution is a preferred remedy if it is possible for the injury to be wiped out and the situation restored to its pre-injury state. In environmental cases, courts often order environmental harm to be cleaned up or the damaged ecosystem returned to a healthy state. Such orders which are closely related to injunctions in the sense that they compel action, may substitute for compensation and often produce a better result. </li></ul><ul><li>For example, where a defendant was found to have dumped wastes on a neighbor’s property, the High Court of Kenya ordered the wrongdoer to clean up the waste. See Paul K. Nzangu v. Mbiti Ndili (High Court of Kenya at Machakos, Case 8/1991) </li></ul><ul><li>. </li></ul>
  11. 11. EVIDENCE <ul><li>Long delays in investigations and trials result in the evidence not holding good in courts due to the loss of whereabouts of key witnesses or witnesses becoming hostile. </li></ul><ul><li>Difficult to procure evidence to prove guilt “ beyond reasonable doubt” </li></ul><ul><li>Poor count on convictions brings focus on reforms in investigation techniues & procedures,e.g., a single individual cannot be expected to be expert in both investigations and prosecution. Capacity building of investigators and prosecutors to enhance their skills is essential in this respect. </li></ul>
  12. 12. SANCTIONS and PENALTIES <ul><li>Courts are the most prevalent formal institutions for sanctioning the violation of environmental laws and regulations and ensuring compliance with environmental laws. In environmental cases the punishments have to be detterent to discourage environmental crimes. </li></ul><ul><li>In this case in Singapore the court in its judgment outlined the principle that the sentencing guidelines to be applied to prosecutions for pollution should be determined by the environmental gravity of the pollution. {JUPITER SHIPPING Pte Vs. PP} </li></ul>
  13. 13. Public Interest Litigation <ul><li>LEADERS Inc Vs. GODAVARI MARBLES </li></ul><ul><li>[Nepal] </li></ul><ul><li>The Court ruled that </li></ul><ul><li>“ As environmental conservation is a matter of public concern and interest, it does fall under public interest. Therefore, the petitioner undoubtedly has a meaningful relationship with the issue. As the constitution, under article 88 (2) 6, has established public interest as a fundamental right, whether the petitioner has a locus standing can no more be an issue.” </li></ul>
  14. 14. Corporate Liability <ul><li>BANGKINANG LAND AND FOREST FIRES CRIMINAL CASE </li></ul><ul><li>[Indonesia] </li></ul><ul><li>This was the first criminal enforcement case in Indonesia to use the concept of corporate criminal liability by punishing the corporate leader as a functional perpetrator (vis a vis physical perpetrator ). </li></ul><ul><li>It has been suggested that the application of corporate criminal liability sends a message to all corporations and businesses that it is important to integrate environmental considerations/protection values into corporate management practices. </li></ul>
  15. 15. Right to Environmental Information <ul><li>MC Mehta v Union of India and others </li></ul><ul><li>Supreme Court of India, Writ Petition (Civil) No. 860 of 1991 </li></ul><ul><li>The Chief Justice GN Ray, J & As. Anand, J </li></ul><ul><li>The Petitioner filed an application in the public interest asking the Supreme Court to issue direction on ways to increase public environmental awareness in India via the Media </li></ul><ul><li>The Court held that cinema halls would be required to show slides with information on the environment, as well short films on environment and pollution to be provided by the government. </li></ul><ul><li>It was further held that India Radio and Doordarshan would take steps to make and broadcast interesting programmes on environment and pollution </li></ul>
  16. 16. HUMAN RIGHTS <ul><li>In Re: Human Rights Case (Environment Pollution in Balochistan) </li></ul><ul><li>Human Rights Case No: 31-K/92(Q) </li></ul><ul><li>A news report was published in a daily newspaper expressing concern that attempts were being made by certain businessmen to purchase coastal areas of Balochistan and convert them into dumping grounds for nuclear waste material </li></ul><ul><li>The Supreme Court then took note of the news item and acting upon the allegations, issued an order that the Court be provided with full information on all applications and licenses for allocation of coastal land and territorial waters. </li></ul><ul><li>The Court further held that a condition must be inserted in the allotment license disallowing the use of land for dumping or treatment of industrial or nuclear waste in any form </li></ul>
  17. 17. ENVIRONMENT COURTS <ul><li>Many developing countries have established specialized environment courts to adjudicate environment cases. Examples of environment courts. </li></ul><ul><li>Land and Environment Court of New South Wales: 1979 </li></ul><ul><li>Planning and Environment Court of Queensland : 1990 </li></ul><ul><li>New Zealand Environment Court: 1991 </li></ul><ul><li>Indian National Environment Tribunal : 1995 </li></ul>
  18. 18. Environment Courts Cont… <ul><li>Indian National Environment Appellate Authority : 1997 </li></ul><ul><li>The Kenya National Environmental Tribunal : 1999 </li></ul><ul><li>Bangladesh Environment Court: 2000 </li></ul><ul><li>Thailand: Green Bench in the Supreme Court. (2004) </li></ul><ul><li>Philippines: environment courts at the provincial and local levels.(2008) </li></ul><ul><li>Indonesia environment courts at provincial level 2008 </li></ul><ul><li>-India National Green Tribunal 2010 </li></ul>
  19. 19. ENVIRONMENTAL OMBUDSMAN <ul><li>Some Countries establish the office of an Environmental Ombudsman as a flexible, non-judicial or quasi-judicial mechanism for hearing public complaints or views on specific environmental issues and determine the scope of facts on the issue & recommend public action to redress the complaint. </li></ul>
  20. 20. JUDICIAL COOPERATION <ul><li>Judges, prosecutors and investigators have to coordinate their efforts for tackling the organized criminal networks which make huge and fast growing profits in environmental crimes while penalties imposed are inadequate. </li></ul><ul><li>Co-operation in judicial proceedings is important for the enforcement of environmental law that is transboundary in the illegal trade in ODS or endangered species. </li></ul><ul><li>Co-operation in judicial proceedings and procedures related to testimony, evidence and similar matters, including sharing information between the concerned countries   </li></ul>
  21. 21. <ul><li>CONCLUDING REMARKS </li></ul>It is evident that environmental awareness is increasing globally, resulting an influence on emerging environmental jurisprudence. The Courts appear to be ready to be proactive and deliver judgments that should result in greater environmental protection or reduced environmental harm. As environmental jurisprudence develops to provide the opportunity, members of the public are showing a willingness to take on the role of environmental advocates, notably through public interest litigation and therefore environmental jurisprudence appears to be moving in a positive direction
  22. 22. THANK YOU for your kind attention [email_address]