2nd South Asia Judicial Conference on Environmental Justice, Bhutan,
30-31st 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), 2012.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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 - 875 pending.
 2363 cases filed before the Environmental
Tribunal- 1621 pending.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
Working of the GREEN BENCHES
Pakistan’s experience
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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)
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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
win in the end.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
must
 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, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
Taking ENVIRONMENTAL JUSTICE to the
next level
some suggestions
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
• REALIZE THAT ENVIRONMENT IS NOT A
LOCAL ISSUE.
• CONSTANTLY INNOVATE AND
ENVIRONMENTAL RIGHTS.
ENERGIZE
 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, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
• Helping develop effective environmental
governance.
• Multidisciplinary flavour.
• Long term perspective
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
REGIONAL COLLABORATION STILL LACKING
• Specialized judicial training
• Exchange of innovative judicial techniquescase law
• Judicial Green Portal or Discussion Group.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
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, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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.
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 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
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013
Thank you
2nd South Asia Judicial Conference on Environmental Justice, Taj Tashi Hotel, Thimpu, Bhutan, 30-31 August, 2013