1 / 25

2 nd South Asia Judicial Conference on Environmental Justice, Bhutan, 30-31 st August, 2013 ACCESS TO ENVIRONMENTAL

2 nd South Asia Judicial Conference on Environmental Justice, Bhutan, 30-31 st August, 2013 ACCESS TO ENVIRONMENTAL JUSTICE AND ALTERNATIVE DISPUTE RESOLUTION MECHANISM Pakistan’s Perspective Justice Syed Mansoor Ali Shah Lahore High Court Pakistan .

halona
Download Presentation

2 nd South Asia Judicial Conference on Environmental Justice, Bhutan, 30-31 st August, 2013 ACCESS TO ENVIRONMENTAL

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. 2nd South Asia Judicial Conference on Environmental Justice, Bhutan, 30-31stAugust, 2013 ACCESS TO ENVIRONMENTAL JUSTICE AND ALTERNATIVE DISPUTE RESOLUTION MECHANISM Pakistan’s Perspective Justice Syed Mansoor Ali Shah Lahore High Court Pakistan

  2. Environmental Justice vs. Justice The difference was highlighted in the first South Asia Judges Roundtable on Environmental Justice, held in Bhurban(Pakistan), 2012. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  3. Conventional Justice system: • an inter party dispute, arising out of violation of law. • cast in an adversarial setting. • Cost-benefit analysis limited to the parties. • in the end, invariably, one party succeeds.   2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  4. Environmental Justice system has much more • ”Nature” (environment) is the silent necessary party in Court. • Legal principles plus a fair understanding of the environment and environmental science is required to decide an environmental case. • Proceedings shift from adversarial to an inquisitorial setting 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  5. Judicial philosophy requires resetting – the court has to zoom out of the inter-party dispute and judge the issue on a broader level (e.g., community, provincial, national, regional or global level) • Judgment does not simply protect the rights of the parties but actually protects the systems of nature and evolve a sustainable solution keeping in view the interest of the future generations. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  6. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  7. THEREFORE, keeping in view the space and expertise required for environmental issues, BhurbanDeclaration, 2012, inter alia, resolved: • TO ESTABLISH green benches in (existing) courts for effective dispensation • of environmental justice. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  8. After the BhurbanDeclaration, on the directive of the Hon’ble Chief Justice of Pakistan. • Green Benches were established in all the 5 HIGH COURTS and 133 DISTRICT & SESSIONS COURTS of Pakistan. • This was in addition to the Environmental Tribunals constituted under the law. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  9. Increase in access to environmental justice can be gauged from the cases filed in Punjab since the Bhurban Declaration : • 249 cases were filed before the Green Bench at the Lahore High Court – 96 are still pending. • 1976 cases were filed before the District Judiciary in Punjab - 875 pending. • 2363 cases filed before the Environmental Tribunal- 1621 pending. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  10. Working of the GREEN BENCHES • Pakistan’s experience 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  11. Fridayhas been earmarked as a Green Day to hear Environmental cases. There is no other cause list on the said date. • Green Bench has a list of amici curiae (policy, scientific, financial and environmental experts, academics, International NGOS e.g. WWF, IUCN, etc) 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  12. For effective dialogue and resolution – setting up COMMISSIONS (e.g. River Ravi Commission, Fire Safety Commission, etc) • Rolling review or continuous mandamus. Try to mediate a solution - No rush to adjudicate but to arrive at a consensual policy resolution. • Never forgetting that environment must win in the end. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  13. Up to date/quality information – use of Freedom of Information law. • Backed by strong and efficient research centre. • Proceedings are not adversarial but more inquisitorial, consultative, participatory, inclusive, mediational, & negotiational. • Court looking for policy level solutions. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  14. Taking ENVIRONMENTAL JUSTICE to the next level • some suggestions 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  15. PREPARING A GREEN JUDGE • MUST APPRECIATE NATURE- HAVE AN ‘ECOLOGICAL CONSCIENCE” • A judge today must be conscious and alive to the beauty and magnificence of nature, the interconnectedness of life systems on this planet, and respect for all life forms. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  16. REALIZE THAT ENVIRONMENT IS NOT A LOCAL ISSUE. • CONSTANTLY INNOVATE AND ENERGIZE ENVIRONMENTAL RIGHTS. • Weave international principles (e.g., Intergenerational equity, sustainable and equitable use of natural resources, Integration of environment and development, Precautionary Principle, Polluter Pays principle and Principle of common but differentiated responsibility) into our jurisprudence. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  17. Mandatory, structured & meaningful public hearing. • with freedom & access to updated information. • preparation of environmental policy addressing public objections and concerns through an open public policy document. • recourse to negotiations. • Independent body to conduct public hearing • Media coverage 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  18. Preventive rather than reactive approach • command and control doesn’t work unless solutions and alternatives first given. • Learning to deal with scientific uncertainty • Balancing DEVELOPEMNT & ENVIRONMENT i.e., by Development in an environmentally sustainable way 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  19. Helping develop effective environmental governance. • Multidisciplinary flavour. • Long term perspective 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  20. EXPERTISE & CONTINUING TRAINING FOR JUDGES • Judges need to trained in the art of dealing with Environmental cases – training in non adjudicatory solutions and tools • CAPACITY BUILDING OF EPAs • Propose homegrown solutions • Lacks advisory and consultative role. • Capacity building 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  21. REGIONAL COLLABORATION STILL LACKING • Specialized judicial training • Exchange of innovative judicial techniques-case law • Judicial Green Portal or Discussion Group. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  22. ADR MECHANISMS • Alternative Dispute Resolution (ADR) or Environmental Conflict Resolution (ECR) have a slightly broader meaning in the environmental context. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  23. Public hearing, public consultations, free access to information, alternative solutions proposed by EPA, negotiations at the EPA level are all part of participatory justice or ADR . • Appointment of Commissions by the Court is also a form of ADR. 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  24. Caution • ADR has to be cautiously applied to environmental cases. Mediationor a mutual agreement between the parties cannot overshadow or marginalize the adverse affects on the environment. • Hence, the mediated solution between the parties must pass the sustainability test. • Environmental inequity cannot be promoted. Disproportinate environmental solutions cannot be encourgaed 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

  25. Thank you 2nd South Asia Judicial Conference on Environmental Justice, TajTashiHotel, Thimpu, Bhutan, 30-31 August, 2013

More Related