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

Environmental Justice vs. Justice The difference was highlighted in the first South Asia Judges Roundtable on Environmental Justice, held in Bhurban (Pakistan), nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

 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. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

THEREFORE, keeping in view the space and expertise required for environmental issues, Bhurban Declaration, 2012, inter alia, resolved: TO ESTABLISH green benches in (existing) courts for effective dispensation of environmental justice. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

After the Bhurban Declaration, 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. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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 pending.  2363 cases filed before the Environmental Tribunal pending. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

Working of the GREEN BENCHES Pakistan’s experience 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

 Friday has 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) 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

 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. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

 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. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

Taking ENVIRONMENTAL JUSTICE to the next level some suggestions 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

 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 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

Helping develop effective environmental governance. Multidisciplinary flavour. Long term perspective 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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

ADR MECHANISMS Alternative Dispute Resolution (ADR) or Environmental Conflict Resolution (ECR) have a slightly broader meaning in the environmental context. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

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. 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

Caution ADR has to be cautiously applied to environmental cases. Mediation or 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 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013

Thank you 2 nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, August, 2013