Long way yet for true green courts

NEW Zealand, fresh from creating environmental history by declaring the Whanganui river as having the same legal status as a person, very recently hosted an international symposium titled "Environmental Adjudication in 21st Century".

The symposium attracted many distinguished members of the judiciary; most of them presiding over environmental or green courts in their countries. I was awestruck by the papers and topics that were being discussed; many involving new ideas, analyses and best practices related to environmental jurisprudence and adjudication advanced through such specialised courts.

Environmental courts functioning in a specialised capacity have been steadily gaining momentum at the turn of the century, with judicial activism on environmental matters increasingly on the rise.

Around the world, the judiciary is shifting the paradigm on the nature of judicial orders that it can dispense and approaches that it can employ in the pursuit of what one might call "environmental justice".

In 2015, a landmark decision in Pakistan had set precedent for the world too, when a sugarcane farmer brought the government of Pakistan to court (Asghar Leghari v Federation of Pakistan) for failing to implement its 2012 National Climate Change Policy.

The farmer argued that as a result, the government had violated his constitutional right to life and dignity by neglecting to undertake climate change adaptation measures.

The Green Bench of the Lahore High Court concurred and took the federal government to task on this "lethargy" and ordered the government to nominate focal persons to implement the policy and further ordered the establishment of Climate Change Commission to monitor implementation progress. Stupendous!

With such groundbreaking environmental adjudication unfolding, I can't help but provide my commentary on the nature of our environmental courts. Malaysian "environmental courts" have been in operation since 2012 but they are not specialised courts. In reality, they are essentially courts of general jurisdiction.

Environmental courts here are only designated as such through an administrative and procedural framework implemented through a practice direction issued by the chief registrar in 2012.

It entails a "temporary" designation of a magistrate's and sessions court as an environmental court when it presides over "environmental" cases.

A hodgepodge of various sections under almost 34 separate pieces of federal and state laws are subject to the environmental courts purview. No new laws, regulations, orders or institutional practices specific to the environmental courts govern their operation as far as I am aware.

The former chief justice, Tun Arifin Zakaria, was monumental in taking the first steps towards materialising an early concept of an environmental court.

At the heart of the initiative was to provide an administrative charter towards expediting environmental cases. This effort appears to have met with some success from a statistical viewpoint at least.

The chief justice reported in 2015 that 96% of environmental cases registered in the lower courts from 2012 to 2015 have been settled. I have no means of verifying whether the severity of the sentences have had a deterrent effect on environmental crime.

Quick disposal of cases is undeniably a desired component of legal justice but if we aspire to meet one of the objectives of the environmental court ie to "expand and improve access to environmental justice" we have a long way to go as the current structure simply does not facilitate this aspect.

Simply put, to fully mobilise an environmental court that serves the environmental agenda in its complex totality, we need to get back to basics.

By that I mean we need to develop a comprehensive policy document that outlines the vision, rationale and objectives of an environmental court in the Malaysian context.

Within it, the policy must proceed to outline the institutional framework for such a court; based on models from around the world that would best suit the local context given our form of legal jurisprudence, rule of law and political dichotomy.

Crucial to the policy document is to articulate how we hope to improve access to environmental justice in Malaysia. This is a complex and overarching concept and cannot be left undefined.

Whichever model is deemed feasible to pursue, a number of key characteristics is indispensable. These include the following:

>> It must operate separately and independently (freestanding) of the general courts with its own jurisdiction over environmental matters/cases ie the environmental mandate of such a court has to be clear.

>> Able to design and develop its own rules, procedures, the types of judicial orders the court can make and forms of relief it may grant in environmental cases.

>> the appointment of expert judges who are specifically and continually trained in environmental policy (international and national), law and some environmental science.

>> Prescription of environmental principles that guide the adjudication process.

>> Liberalise and relax the rules on locus standi to enable greater access to the judicial system on environmental matters. The prevalent strict rules on standing are probably the best example I can provide in relation to identifying a barrier to environmental justice.

Environmental courts cannot continue to exist in notion only. But striving for a better judicial green structure does not rest solely on the judiciary's shoulders.

Policymakers and decision-makers have to recognise the judiciary as being uniquely placed and integral towards attaining environmental goals and must initiate advocacy and rally support towards a more robust environmental court establishment in a joint effort. From fledgling to full-fledged environmental courts; the time is ripe.

Preetha is an advocate and solicitor. She has spent many years in the environmental conservation arena. Comments: letters@thesundaily.com