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Implementation of Environmental Justice: Through Dispute Settlement

  1. Implementation of Environmental Justice: Through Dispute Settlement Preeti Kana Sikder Assistant Professor Department of Law & Justice Jahangirnagar University
  2. Pillars of Environmental Rule of Law Access to information Access to public participation Access to justice in environment al matters
  3. The third “pillar” of access rights – access to justice – as articulated in Principle 10 of the Rio Declaration and refined in the Bali Guidelines is now seen as the primary driver of new ECTs.
  4. UNEP guide for Policy Makers Environmental Courts and Tribunals
  5. Elizabeth Mrema, Director, Law Division at the UN Environment “The Rule of Law lies at the core of a just administration of justice and is a prerequisite of peaceful societies, in which environmental obligations, equality before the law and the adherence to the principles of fairness and accountability are respected by all. Law coupled with strong institutions is essential for societies to respond to environmental pressures and crucial for the international community to address the environmental challenges of our time.”
  6. Justice Antonio Herman Benjamin, High Court of Brazil “Environmental conflicts require quick action or response, which is incompatible with the slow pace of the court system that, due to its bureaucracy and technical rituals, eventually becomes an obstacle to effective protection of the environment and to economic progress.”
  7. On-going “Explosion of ECTs” The “explosion” in the number of ECTs since 2000 is astounding. Today, there are over 1,200 ECTs in 44 countries at the national or state/provincial level, with some 20 additional countries discussing or planning ECTs. This continuing explosion is being driven by the development of new international and national environmental laws and principles, by recognition of the linkage between human rights and environmental protection, by the threat of climate change, and by public dissatisfaction with the existing general judicial forums.
  8. Improving the environmental rule of law, access to justice and environmental dispute resolution is essential for achieving the UN’s 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs), particularly SDG Goal 16 – “to provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” Specialized Environmental Courts and Tribunals (ECTs) are now widely viewed as a successful way to accomplish this important goal.
  9. An ECT is different from general courts because it specializes in environmental cases and has adjudicators trained in environmental law. The decision-making process often incorporates both lawyers and scientific/technical experts, and relies on alternative dispute resolution, open standing, streamlined case review and sophisticated use of information technology.
  10. “The judiciary has a role to play in the interpretation, explanation and enforcement of laws and regulations. … Increasingly, it is being recognized that a court with special expertise in environmental matters is best placed to play this role in the achievement of ecologically sustainable development.” Justice Brian Preston, Chief Judge of the Land and Environment Court of the State of New South Wales, Australia
  11. Debate on Pros and Cons of ECTs
  12. Why ECTs are needed (Pro-argument) Expertise: Expert decision makers make better decisions. Efficiency: Greater efficiency, including quicker decisions. Visibility: Shows visible government support for the environment and sustainability and provides an easily identifiable forum for the public. Cost: Can lower expenses for litigants and the courts. Uniformity: Greater uniformity in decisions, so litigants know what to expect.. Standing: Can adopt rules that expand standing, for individuals, environmental related NGOs and public interest litigation (PIL). (China has recently adopted legislation expanding standing for environment NGOs and public interest litigators in their ECs, as have other nations.) Commitment: Effectuates government’s commitment to the environment and sustainability.
  13. Why ECTs are needed Accountability: Greater government accountability to the public. Prioritization: Ability to prioritize and move on cases that are urgent. Creativity: Can adopt rules allowing for innovative and flexible procedures and remedies. Alternative Dispute Resolution: Broadens ability to use ADR and other non-adversarial dispute resolving processes, including restorative justice, to provide win-win enforceable agreements. Issue Integration: Can deal in a more integrated way with multiple laws, particularly if the ECT has civil, criminal and administrative jurisdiction. Remedy Integration: Can combine civil, criminal and administrative remedies and enforcement under one roof.
  14. Why ECTs are needed Public Participation: Involvement of the public can be increased, reinforcing one of the critical access pillars to justice. Public Confidence: The public’s confidence in the government and the judicial system can be increased, so that members of society are more likely to bring concerns to the system. Problem Solving: Judges can look beyond narrow application of rule of law (“right-wrong”) and craft creative new solutions. Judicial Activism: Can apply new international principles of environmental law and natural justice as well as national/local law. Investigation: May be authorized to undertake investigations of environmental problems on its own initiative without a case being brought.
  15. Specialization does not, by itself, guarantee any of these potential positive characteristics will automatically occur. However, ECT architects can include special design features to ensure some or all of these features – features which are not typical of and may not be possible in the traditional judicial institutions.
  16. Opponents of specialization in general and ECTs in particular raise “con” arguments Competing Needs: There are other areas of the law that arguably need specialization as much or more. Marginalization: Takes environmental cases out of the mainstream and may mean less attention, less qualified judges, less budget, and limited opportunities for judicial advancement. Fragmentation: This fragments the legal system and isolates important environmental issues and judges. Internal Reform: It’s better to reform within the existing general court system.
  17. Opponents of specialization in general and ECTs in particular raise “con” arguments Insufficient Caseload: Not enough environmental cases to justify an ECT. Cost: The cost of creating a new institution isn’t worth it. Confusion: Potential public confusion about what is defined as an environmental case and determining in which of several forums to lodge a complaint. What’s “Environmental”?: Difficulty in defining what is an “environmental” case and how to handle cases with both environmental and non-environmental issues.
  18. Opponents of specialization in general and ECTs in particular raise “con” arguments Capture: Special interests will be able to more easily influence and control a small ECT outside the general court system. Generalist Judges: Some feel generalist judges with a broad perspective and experience will focus on the forest not the individual trees and decide cases better than “specialists.” Judicial Bias: Specialist judges may be advocates and biased in favor of environmental protection, not balanced and comprehensive in their analysis. Judicial Activism: An ECT will encourage the judges to overstep their judicial authority and act like legislators and policy makers.
  19. Opponents of specialization in general and ECTs in particular raise “con” arguments Training Gap: Not enough judges or lawyers exist with the needed expertise. Judicial Careers: The narrow focus will be a “dead end” for a judge’s career. Inferior” Courts: Risk of creating a court with lower status than the general courts and “lesser” judges with consequently less power
  20. Function of ECTs: ECTs can be designed to: promote the environmental rule of law at the national level and international levels and ensure equal access to justice (SDG target 16.3) develop more effective, accountable and transparent institutions at all levels (SDG target 16.6) ensure responsive, inclusive, participatory and representative decision- making at all levels (SDG target 16.7) ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements (SDG target 16.10) and especially promote and enforce non-discriminatory laws and policies for sustainable development (SDG target 16.b).
  21. Type of Forums  ECTs can be either courts (judicial branch) or tribunals (executive or ministerial branch), both reflecting the social, economic and environmental characteristics of the host nation.  ECTs’ existence, jurisdiction, powers, budget, accountability mechanisms, etc., may be defined by (1) legislation, (2) rules of their parent branch of government, or (3) the ECTs’ own rules.
  22. Environmental Courts 1. OPERATIONALLY INDEPENDENT EC (separate, fully or largely independent environmental court) 2. DECISIONALLY INDEPENDENT EC (within a general court, but separate and free to make its own rules, procedures, and decisions) 3. MIX OF LAW-TRAINED AND SCIENCE-TRAINED JUDGES (may be either model 1 or 2 above with the 2 types of judges sharing decision making) 4. GENERAL COURT “DESIGNATED” JUDGES (assigned environmental cases in addition to their regular docket, often without necessary interest, expertise or training) 5. ENVIRONMENTAL LAW-TRAINED JUDGES (who may or may not therefore be assigned environmental law cases from time to time).
  23. Environmental Tribunals 1. OPERATIONALLY INDEPENDENT ET (separate, fully or largely independent environmental tribunal) 2. DECISIONALLY INDEPENDENT ET (under another agency’s supervision, but not the one whose decisions they review) 3. CAPTIVE ET (within the control of the agency whose decisions they review)
  24. Environmental Tribunals 1. Ombudsman 2. Prosecutor 3. Commissions
  25. Environment Court Act, 2010 Analysis and Recommendations
  26. Objectives of Environment Court Act, 2010 Speed up justice against environmental offences Setting up, jurisdiction and working module of of Environmental Courts (sections 4, 7, 14) Setting up, jurisdiction and working module of Special Magistrate Courts (sections 5, 6, 9, 10) Investigation into Environmental Offences (section 12) Appeal (sections 19 and 20) Settlement of Disputes: ADR (section 18) Who files the cases/complaints? (DG/ authorized officer –Section 6 (1); written report of Inspectors-sections 6 (3); 7 (4); individuals )
  27. Special Magistrate Court Section 5: One in each district; Metropolitan Magistrate/1st class Judicial Magistrate Sections 6 and 9: Directly in the SMC or Filing of GD in Police Station (1); offences that can be penalized with 5 years imprisonment or fine of taka 5 lakh or both Section 10: Process for trial (180+90 days)
  28. Environment Court Act, 2010 • Section 4 - Establishment of Environment Courts  One in each district  One Joint District Judge  Trial of offences under the ECA and any other law specified by the government for the purposes of this law  Trial of cases referred to it by the SMC  (presently 3 such courts functioning in Dhaka, Chittagong and Sylhet)  Compensation suits to be filed directly at the ECs • Section 7 - Jurisdiction of Environment Court - impose penalty; confiscate equipment, transport or article; pass order or decree for compensation; issue direction not to do the act or to make omission; issue direction to take preventive or remedial measures • Section 14 - Powers and functions of Environment Court • Provisions of CrPC (section 14 (1)) and CPC (section 14 (6)) • Total days: 180+ 90 days
  29. Ambit of Power (Definition : Section 2) BECA, 1995 BECR, 1997 ECA, 2010
  30. The Real Face?
  31. Environment Case No. 4 of 2003 • Sirajul Islam and Md. Nazrul violated Sec 6A of BECA by the way of storing and selling banned polythene bags
  32. Environment Court Act, 2000 Sec: 7 Procedure for investigation  (1) An offence under an environmental law shall ordinarily be investigated by an Inspector, but the Director General may, by a general or special order, authorize any other officer subordinate to him to investigate any particular kind of offences or a specified offence.  (2) The said Inspector or other officer, hereinafter referred to as the investigating officer, shall on the basis of a written complaint or other information, initiate proceedings under this section after obtaining approval of the officer authorized in this behalf by the Director General.
  33. Sec: 7 Procedure for investigation  (3) The investigating officer shall, before initiating a formal investigation of an offence, inquire into and collect information about the offence, prepare a preliminary report thereon and present it to a higher 3 officer authorized by the Director General in this behalf, and the officer secondly mentioned shall, upon consideration of the relevant facts and circumstances, give his decision within 7 (seven) days as to whether a formal investigation may be initiated or whether no action at all is necessary, and accordingly next actions shall be taken.
  34. Sec: 7 Procedure for investigation (4) If a decision is taken to initiate a formal investigation under subsection (3), the investigating officer shall present the said preliminary report to the concerned police station, and it shall be recorded in the police station as a first information report or ejahar of the offence and thereafter the said investigating officer or, as the case may be, another officer authorized by the Director General shall conduct the investigation. (5) The investigating officer while investigating an offence shall, in relation to that offence, be competent to exercise the same powers as an officer in charge of a police station and he shall, subject to this Act and the rules, follow the Criminal Procedure Code.
  35. Sec: 7 Procedure for investigation (6) Any statement recorded, any article seized, any sample or other information collected at the inquiry stage held before formal investigation may be considered and used for the purpose of investigation. (7) The investigating officer shall, after completion of the investigation, obtain the approval of an officer authorized by the Director General in this behalf and submit one copy of the investigation report and the original or attested copies of the supporting documents directly to the environment court or as the case may be to a Special Magistrate if the case is triable by such Magistrate, and shall also keep one copy at his office and present another copy to the police station; and such report shall be deemed to be a police report under section 173 of Criminal Procedure Code.
  36. Sec: 7 Procedure for investigation  (8) Notwithstanding the provisions of sub-section (3), where the investigating officer has reasons to believe that any document, article or equipment involved with an offence is likely to be removed or destroyed, he may, even before a decision for formal investigation, seize the document, article or equipment, and if the investigator has reasons to believe that the offender is likely to abscond, he may also arrest the offender.
  37. Sec: 4 Establishment of Environment Courts  (1) For carrying out the purposes of this Act, the Government shall, by notification in the official Gazette, establish one or more Environment Court in each Division.  (2) An Environment Court shall be constituted with one judge and, in consultation with the Supreme Court, the Government shall-  (a) appoint an officer of the judicial service of the rank of Joint District Judge, and such Judge shall dispose of cases only under environmental laws; and  (b) if it considers necessary, appoint a judge of the rank of Joint District Judge for a Division or a specified part thereof to act as the judge of an Environment Court in addition to his ordinary functions, and the said judge shall, in addition to his ordinary functions, dispose of the cases that fall within the jurisdiction of an Environment Court.]
  38. Sec: 4 Establishment of Environment Courts  (3) Each Environment Court shall have its seat at the Divisional Headquarter; however, the Government, if it considers necessary, may, by general or specific order published in the official Gazette, specify places outside the Divisional Headquarter where the court can hold its sittings.  (4) If more than one Environment Court are established in any Division, the Government shall, by notification in the official Gazette, specify the territorial jurisdiction of each such Court.
  39. Sec 561A Saving of inherent power of High Court Division  Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
  40. Sec: 5A Penalty for violating court’s order  If a person – (a) violates a direction issued under clause (a) of section 5(2) by repeating or continuing the offence for the commission of which he has been sentenced, he shall be liable to be sentenced with the penalty prescribed for that offence, provided such penalty shall not be less than the one imposed on him at the time of issuance of the direction; (b) violates a direction issued under clause (b) or (c) of section 5(2), the violation shall be an independent offence for which he shall be liable to be sentenced to an imprisonment not exceeding 3 (three) years or to a fine not exceeding 3 (three) lac taka or to both.
  41. Sec: 5C Trial procedure in Special Magistrate’s Court (1) No Special Magistrate shall take cognizance of an offence except on a written report of an Inspector : Provided that, if authorized by the Director General in relation to the institution of a particular kind of case triable by such Magistrate, an Inspector may present a report on such offence directly to the Magistrate without following the procedure prescribed in section 7.
  42. Sec: 5C Trial procedure in Special Magistrate’s Court (2) A Special Magistrate appointed under this Act shall follow the procedure for summary trial as prescribed in the Criminal Procedure Code. (3) A case triable by the court of a Special Magistrate shall be conducted by an Assistant Public Prosecutor or a police officer specified by the Government or an Inspector of the Department of Environment on behalf of the State.
  43. Circular of 2002
  44. Can S.I. of Police be considered an Inspector?
  45. Implementation of Environment Court Act These courts are sitting idle due to lack of environment law related cases. According to Court sources it only received four cases in early 2017 and 54 in the preceding five years and the number of cases filed from 2007-11 was 276. Only seven cases, of which two of Dhaka Divisional Court and five of Chittagong divisional court are pending with the appellate court for hearing.
  46. Reasons for Poor Performance? • Lack of Leadership strength • Low Public demand – necessary to support the process and educate the community • Lack of Political support • Judiciary support and ownership – opposition of the existing judiciary to specialization can kill efforts or result in authorization but no establishment (an ABNE)
  47. Reasons for Poor Performance? Budget – a dedicated budget is necessary, even for minimalist models Opposition arguments – powerful opposition from the judiciary, the administration and business interests can torpedo ECT creation Changing the status quo – there may be a need first to modify existing institutional and environmental laws and regulations if they are weak or create significant barriers
  48. Reasons for Poor Performance? • Inadequate or corrupt enforcement agencies – without effective enforcement agencies, an ECT may be powerless • Lack of environmentally trained judges and decision makers – it is preferable for all initial appointees to be environmentally knowledgeable • Lack of environmentally trained attorneys – without a base of environmental lawyers the ECT may not get cases or have them presented well
  49. Reasons for Poor Performance? Inadequate judicial training capacity – judicial education is needed, through a judicial training academy, university, IGO or NGO with environmental education expertise and commitment •Literacy of the affected population – community education and awareness is the cornerstone of an effective ECT and an important element to develop in the planning process.
  50. Reasons for Poor Performance? Jurisdictional error: lack of integrated jurisdictions over the laws pari materia and insufficient penal policy under Section 15 of the Environment Conservation Act 1995. No priority by judges Non-cooperation of the DoE Technical experts not allocated No swift procedure Lack of skill from Special Public Prosecutors
  51. Way out?