ENVIRONMENTAL JURISPRUDENCE
Kathmandu, April 27
Supreme Court Justice Sapana Pradhan Malla said coordination and information exchange along with training of experts as well as of judges on environment issues was needed to advance environmental jurisprudence.
Addressing a regional symposium on 'Forest and Protected Areas Legislation and Jurisprudence: Bridging Law and Science,' Justice Malla said, "Judges, when presented with the issues of environment protection, do not just provide decisions but their decisions are also directed towards measures of problem identification and problem solving." Justice Malla further said, "Regional networks are thus an indispensable platform for environment education and information sharing to ensure that environment issues are dealt with utmost urgency and environment rights is not viewed as a 'less important right' and being against other rights, but rather as a prerequisite to all other rights."
Stating that the world had come a long way in the mission of environment justice since the 1972 Stockholm Declaration, Speaker Malla said laws, principles and jurisprudence had been evolving and at the same time environmental risks had also become more apparent and their assessment and management had become more complex.
Justice Malla said constitutional guarantee of environmental rights was founded upon the notion that 'any harm to the environment could adversely affect the enjoyment of a broad range of human rights.' "It has paved way for the judiciary from judicial activism towards constitutional activism," she added.
Speaker Malla said in the two most recent cases, namely Nijgadh forest judgement and Chure excavation judgement, the court elaborated on the notion of economic activities versus sustainability by stating that in the absence of one the other could not be achieved.
She said although there was a split decision on Nijgadh, both majority and minority opinions held that the cutting down of trees covering 8,000 hectare land would be disastrous and an appropriate alternative had to be sought for construction of Nijgadh airport. She further said, "The bench thus quashed all the decisions of the government in this regard, citing the importance of precautionary principle and the function of EIA in reducing the perils of development works."
"I want to reiterate here that making authority accountable in EIA is essential for environmental rule of law. However, many a time, there have been implementation challenges of these judgements, although we have judgement execution directorate which has been coordinating with the government, that has yet to get effective results."
Acting Chief Justice Hari Krishna Karki said ensuring right to clean environment was crucial as this right enabled the people to enjoy other fundamental rights.
Justice Antonio Herman Benjamin of the National High Court of Brazil, who is also the president of the Global Judicial Institute on the Environment, said environment jurisprudence was continuously evolving and judges ought to keep themselves abreast of new principles in order to protect people's right to clean environment.
Judges and civil society members from Asia, Europe and America are participating in the three-day symposium.
Justice Benjamin said new legal principles such as Principle of ecological function of property in dubio pro natura principle (when in doubt as to whether an activity harmful to the environment should proceed, the doubt should be resolved in favour of protecting the environment) and principle of the propter rem nature of environmental obligation (obligations where the debtor is determined by entitlement of real right) could be applied to protect the forest.
