CJs from SAARC region and Environmental Law experts meet in Colombo:

'Going green' Laws to be executed in SAARC region - CJ

By Manjula Fernando

Chief Justices from the SAARC region and Environmental Law experts from around the globe arrived in Colombo last week to discuss the new environmental rule of law and the creation of required machinery to ensure that it is is effectively executed within the SAARC countries.

“The underlying objective is for the region to stay green while achieving the feats of technological developments enjoyed by the West,” Chief Justice Mohan Peiris who took a lead role in the round table discussions organised in Sri Lanka in an interview with the Sunday Observer said. Experts will review the judiciary's role in environmental protection.

The theme of this year's conference was ‘ Sustainable development within a green environment'. Held from August 8 to 9, this is the third consecutive gathering of SAARC Chief Justices, an initiative backed by the Asian Development Bank. The first initiative was held in Bhurban, Pakistan in 2012 and the second in Thimpu, Bhutan in 2013.

The gathering included a rich combination of top legal luminaries and environmental experts from across the continents who joined in the deliberations in an effort to devise a Colombo Declaration over two full days of discussions at the Central Bank's John Exeter Conference Hall.

The Chief Justice said, “What we are trying to develop is a new concept titled Environmental rule of law, taking the concept of ‘rule of law’ a little further. Recent developments within the UN provide direction and guidance in this regard. “

“It clarifies that governments and people are accountable for environmental laws, that are publicly promulgated and openly and transparently applied. When you put up a factory today in a village in a remote area, the owner must know exactly what the compliance mechanisms he has to adhere to. A regulator too must know his limitations and every one must have an understanding of what the expectations needs to be.”

The series of ADB backed conferences has been organised keeping in mind that South Asia is a region that is historically endowed with ample ‘natural capital’ and is increasingly facing challenges of climate change and therefore needs to effectively respond to deal with this issue.

Chief Justice Peiris said that the law is only one of the key instruments of social regulation.

Regulation is achieved through the establishment of norms, standards and conduct. The creation of required machinery for ensuring that such norms are effectively complied with.

“A political mechanism cannot work, in the guise of an environmental reason.

You cannot shut down a factory that has been there for years just to put up 100 houses. We need to always maintain that balance. Then the law should be clear, even handed, implementable - What is the point in having a very pure law which you cannot put into practice? “

“It should also be enforceable. If I say don't discharge chemicals into this river, I must have an administrative mechanism in which I can enforce that order. No court should make an order which it cannot enforce or fairly enforced.”

Likewise the affected stake holders should have access to independent, fair and responsive dispute resolution mechanism. If there is a dispute that must go before a tribunal, the tribunal should be competent and must have the capacity and knowledge to decide. So that it will look at the case without personal biases.

Their should be accountability for any action. Even in a court of law the judge must explain himself. Why I want a particular factory to work from 8 am– 10pm. You cannot arbitrarily enforce law.

Corruption too can obstruct environmental protection, getting interested in an environmental issue purely for personal gain cannot be accommodated. For instance, a politician taking up an environment issue all of a sudden can have a different objective than the preservation of the environment– he is not interested in thousands of workers who are benefited by the factory or the residents. He makes use of the law as a tool to achieve something totally different.

Local and foreign experts were ready to discuss ways in which the ‘judges’ will handle the new situation. These discussions will shape the development of the relevant aspects of the environmental rule of law for the foreseeable future.

“At the end of the conference, a Colombo Declaration and Memorandum of Understanding between the SAARC partners as to

how they take this to the future is expected to be signed,” joining in the interview prior to the conference, the Chief Justice said.

The initiative looks into capacity building for environmental prosecution, adjudication, dispute resolution, compliance and enforcement in Asia. Environmental law is comparatively a new branch of law that has evolved mainly over the last three or four decades.

Therefore, he says that this is yet in the formative stage, currently undergoing a process of rapid development. Now at this state it depends heavily on the judiciary, pretty obviously. The direction it takes, the situations that are presented to the courts are often without precedent.

Each case has its own nuances and peculiarities, which are not often duplicated in other cases. Every one of them pose a different challenge.

So environment issues in the modern context of sustainable development encompasses the physical and the social factors of the surroundings of the human beings and include land, water the atmosphere, climate, sound, odour, taste and biological factors of animals and plants as well as cultural values, historical sites and the monuments and the aesthetics of our own environment.

“We are going to discuss several themes; Is the legal system adequate, what are the measures we need to take to improve, are our laws adequate to meet this global challenge”, are some of the issues that were taken up for deliberations.

In addition to dignitaries from the eight SAARC countries, top judges and environment law experts from other states took part in the deliberations as resource persons.

Among them were Supreme Court Judge Lord Robert Carnwath from UK, President of US Court of Appeal Judge Clifford Wallace, Chief Justice of Malaysia Tun Arifin Bin Zakaria, Former President of UNEP Bakary Kante, President UNEP Elizabeth Mrema, Deputy Chief Justice of Egypt Dr.Adel Omar Sheriff and UN Environment Agency's top expert Scott Fulton who is also an advisor to White House.

He said it was opportune for Sri Lanka to host this conference, since after 30 years of conflict and five years of rapid development after the end of the conflict, the country had a lot to showcase to the world. “Our urban development has been fantastic and statutorily we have environmentally friendly laws that can be compared with any part of the world.”

“The question will be how do we keep up with global development while contributing to save the planet, while keeping it green and clean so that human kind can live in a healthy environment. In other words, how can we match the tremendous technological leap the West has achieved, while keeping this part of the world green? Should we get the polluter to pay for our fuel for obliging their call not to exploit cheap coal power or nuclear power?”

“If Asia must preserve the climatic balance, shouldn't there be a mechanism for the polluter to compensate the countries that make the sacrifice?” is a vital question that will surface at the conference.