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1 K. Mulqueeny, S. Boniacio, and J. Espenilla. 2011. Asian Judges, Green Courts, and Access to Environmental Justice: An Asian Judges Network on the Environment. Journal o CourtInnovation. 3(1). pp. 277303.

2 ADB. 2011. Environment Program: Greening Growth in Asia and the Pacifc. Manila.3 ADB. 2011. Asian Judges Symposium on Environmental Decision Making, the Rule o Law, and Environmental Justice: The Proceedings o the Symposium. Manila.4 ADB. 2009. Technical Assistance or Strengthening o Judicial Capacity to Adjudicate Upon Environmental Laws and Regulations. Manila.

Environmental Governance and the Courts in AsiaAn Asian Judges Network on the Environment

Law and Policy ReformBrief No. 1 June 2012

Asia has an amazing wealth o ecological diversity. Asian countriescollectively hold 20% o the worlds biodiversity, 14% o the worldstropical orests, and 34% o global coral resources and the greatestnumber o sh and aquaculture in the world.1 Signicant improvementsin the standards o living or its people have been seen, with 521 millionpeople being lited rom extreme poverty through industrial andagricultural production.2

However, environmental changes in the region have been dramatic.These changes have been ueled by growing populations and coupledwith rapid economic and industrial development to service the needs

o burgeoning populations. Degraded natural resources and threatenedecosystems, natural disasters, water stress and scarcity, air and waterpollution, and vulnerability to climate change are pressing challengesaced by the region (ootnote 2).

Many o the developing member countries (DMCs) o the AsianDevelopment Bank (ADB) have accepted international obligations undernew or amended international environmental laws. However, thesecommitments have not been translated into national legislation. Eveni there are national laws, eective implementation and enorcementare still lacking.

Central to many o Asias environmental challenges is weakenvironmental governance. Institutions dealing with the environment areoten weak, lack nancial and human resources, and do not coordinate

well. Institutions involved in upholding the rule o law (law enorcementocers, prosecutors, and courts at all levels) lack sucient knowledgeon environmental and natural resource problems. Poor management onatural resources and corruption throughout law enorcement systemshave a large destructive impact on the regions ecological systems:deorestation caused by illegal logging, illegal wildlie trade, and illegal,unreported, and unregulated shing all refect rule o law breakdownsin the context o the environment and natural resources.

ADB and Environmental GovernanceADBs long-term strategic ramework, Strategy 2020, recognizesthe environment as a core operational area, and good governanceand capacity development as drivers o change. Moreover, ADB has

committed to strengthen the legal, regulatory, and enorcementcapacities o public institutions on environmental considerations.3

Chie justices and the senior judiciary shape normative interpretationso environmental law. They can also issue precedent-setting decisions,or rules and directions to lower courts that change the way thoselower courts carry out their role. The senior judiciary also playsa role in inluencing the direction o judicial education. Thus,the judiciary infuences the courts, the way the legal system operates,

and the way that environmental and natural resource lawyers, the privatesector, and the public understand the legal ramework and how it shouldbe enorced.

ADB has also recognized the unique and distinct leadership rolethe judiciary plays in the environmental enorcement chain. Basedon this recognition, ADB has conducted work at the regional level(in Asia), the subregional level (in Southeast Asia and South Asia),and at the national level (in Indonesia, Pakistan, the Philippines,and Thailand, as well as starting work in Malaysia).

Asian Judges Symposium on Environmental Decision Making,the Rule of Law, and Environmental JusticeIn 2010, in response to requests rom several o its DMCs, ADB approveda technical assistance grant to provide inormation on developmentsand good practices on environmental adjudication and governance inAsian and developed countries.4 ADB conducted research investigatingenvironmental jurisprudence, and environmental courts and tribunals inIndonesia, the Philippines, Thailand, and several other countries to providelessons or other countries in the region.

In addition, the Asian Judges Symposium on Environmental DecisionMaking, the Rule o Law, and Environmental Justice was held in Manilain July 2010 in cooperation with the United Nations EnvironmentProgramme (UNEP) and other development partners. It brought

together 110 judges, environmental ministry ocials, and civil societyrepresentatives rom Asia, Australia, Brazil, and the United States. It isunderstood to be the largest gathering o judges and legal stakeholderssince the 2002 Global Judges Symposium on Sustainable Developmentand the Role o Law in Johannesburg, South Arica.

At the symposium, judges discussed innovations in environmentaljurisprudence in Asia. Several Asian jurisdictions had introducedinternational environmental law principles rom the Stockholm andRio declarations and other innovative approaches, including theprecautionary principle (Indonesia), intergenerational equity and thewrit o continuing mandamus (Philippines), and the public trust doctrine(Sri Lanka). Judges also discussed improving environmental decisionmaking and dierent approaches to environmental specialization within

the judiciary: environmental benches within generalist courts, specializedenvironmental courts, environmental tribunals, and certication that

judges have specialist environmental expertise.At the inal session o the symposium, the Chie Justice o the

Philippines and senior judges rom Bangladesh, Sri Lanka, and Thailandgave a call to establish an Asian Judges Network on the Environment(AJNE). They also agreed that judges play a key role in the environmentalenorcement chain and that regular meetings were needed to enable

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a suit was led on behal o marine mammals (dolphins) whose habitathas been aected by underwater blasting and drilling.

In the Philippines, then Chie Justice Reynato Puno designated

117 rst-instance generalist courts environmental courts in January 2008.

While signicant capacity-building work will continue to be required, the

Philippine Judicial Academy has given judicial training on environmental

law or these judges. As part o Chie Justice Punos legacy, just beore hisretirement, the Supreme Court o the Philippines also adopted the Rules

o Procedure or Environmental Cases, which seek to improve the ability

o plaintis and prosecutors to le environmental cases and have themdetermined. The rules eature many best practices in environmental

adjudication, including the adoption o the precautionary principle,

provisions preventing Strategic Action Against Public Participation (SLAPP)

suit, the writ o continuing mandamus (institutionalizing the rule earlier used

by the Supreme Court to clean up Manila Bay), and the writ okalikasan

(or the writ o nature, which allows individuals or groups to le an action

compelling the perormance o lawul act(s) or preventing an unlawul act

involving environmental damage o such magnitude that it prejudices the

lie, health, or property o inhabitants in two or more cities and provinces).

The Supreme Court very recently issued a writ okalikasan preventing the

eld trials o genetically modied eggplants in the Philippines.9 ADB assisted

with development o the Rules by acilitating their review by ADB experts, the

United States Environmental Appeals Board, and the Queensland (Australia)Planning and Environment Court. Moreover, ADB has conducted research

in relation to the developments in the Philippine judiciary as a oundation

to assist other countries considering urther work on environment.

Thailand

The Supreme Court o Thailand has established environmental divisions(or green benches) at the supreme court, the appellate court, and the trialcourt level. The Thai Supreme Administrative Court has also establishedgreen benches at all levelsnine at the trial court level, and one each atthe Central Administrative and Supreme Administrative Court. Both courtsadopted special rules or the environmental divisions which provide orthe use o the precautionary principle and expert evidence.

The role o Thai courts in environmental law has evolved over the past20 years as the Thai government enacted environmental legislation and

passed constitutional amendments recognizing individual and community

rights to participate in the management and preservation o the environment.The Thai Administrative Court decided the controversialMap Tha Phutcase,

which ound that the constitutional requirement o suciently rigorous

environmental impact assessment had not been complied with. In doing

so, it granted an injunction on 65 o 76 industrial development projects in

the Map Tha Phutindustrial estate. Politicians challenged that the decision

raises a range o development versus environment issues, and threatened

to have it overturned. However, the decision currently stands.

ADB has completed a study investigating Thailands environmentaladjudication and the establishment o its green benches, which iscurrently being prepared or publication.

Malaysia

In late 2011, the Chie Justice o Malaysia indicated his intention toestablish green benches. They would cover cases that all within the

jurisdiction o subordinate courts and would be established in stateswith numerous environmental cases. Malaysia also plans to hold an

environmental workshop or judges in the third quarter o 2012 andto urther investigate the appropriateness o green benches or courts.Malaysia is hosting the roundtable in December 2012, and ADB issupporting its environmental programs.

South Asia Conference on Environmental JusticeSouth Asia also possesses signicant ecological diversity and naturalresourcesbut that diversity is signicantly under threat, with weak

governance and law enorcement as a key actor. The Indian Ocean is

perhaps the worlds most poorly protected coastline: UNEP gave SouthAsia the lowest ranking among regions worldwide in terms o marine

and coastal protected areas.10 About 6% o the worlds coral rees are

ound in South Asia, including the worlds most complex ree system in

the Maldives. South Asias threatened bird and mammal species have

increased in number, despite an increase in the number o protected

areas. The illegal trade in wildlie is one cause or the signicant loss o wild

auna and fora: no custom controls or trade policy deal with the export

o endangered wildlie and illegally harvested timber (ootnote 10). South

Asia has a range o other environmental and natural resource challenges

that aect development, including water scarcity and contamination, land

degradation, and ood and energy security.

Given the signicance o South Asias environmental and environmental

governance challenges, ADB agreed to support the oer by Pakistans ChieJustice Chaudhry to host a chie justices round table or South Asia. Asplanning or the roundtable evolved, the Pakistan judiciarys commitmentwas signicant enough to enlarge the work, and so the South AsiaConerence on Environmental Justice was convened, as a combinedeort o ADB and the Supreme Court o Pakistan, supported by UNEP andthe International Union or Conservation o Nature. The Chie Justice oPakistan constituted the Committee or Enhancement o EnvironmentalJustice (CEEJ). The CEEJ consists o two judges rom the Supreme Courtand one judge rom each provincial high court. The Chie Justices visionwas to continue the work begun during the conerence to ensure thatenvironmental adjudication and enorcement is strengthened enough todeal with all environmental issues. The conerence was held in Bhurban,

Pakistan, on 2425 March 2012. It brought together chie justices andjudges rom supreme courts and high courts o Aghanistan, Bangladesh,Bhutan, Brazil, Jordan, the Maldives, Nepal, Pakistan, and Sri Lanka, as wellother stakeholders rom the South Asian legal community.

At the conerence, about 150 national11 and 30 internationalparticipants discussed challenges relating to environmental justice, andspecically the role o the judiciary in promoting environmental justice.

The sessions covered environmental law and policy, environmentaleducation and capacity building, and the environmental challengesshared by South Asian countries: biodiversity loss and deorestation;climate change and foods; and urbanization. The conerence concludedwith joint recommendations and actions which were laid down inthe Bhurban Declaration 2012, adopted by the conerence, includingproposals to change the Constitution o Pakistan to recognize the rightto a healthy environment as a undamental right, and establishing greenbenches at all levels o judiciary. The South Asian judiciaries in attendancealso agreed to sign a memorandum o understanding or the coordinationand collaboration on enhancing environmental justice in the region,which is expected to take place at the next conerence, which the ChieJustice o Bhutan agreed to host.

9 See Greenpeace Philippines. 2012. Writ o Kalikasan granted against Bt Talong eld trials. Available at www.greenpeace.org/seasia/ph/press/releases/Writ-o-Kalikasan-granted-against-Bt-Talong-eld-trials/; The Philippine Star. 2012. SC issues writ vs. GMO eggplant. Available at www.philstar.com/Article.aspx?articleId=807126&publicationSubCategoryId=68

10 United Nations Environment Programme and Development Alternatives. 2008. South Asia Environment Outlook 2009. Nairobi.11 Participants rom the Ministry o Environment; Attorney General; advocate generals; judges o the Supreme Court, provincial high courts, district courts, and environment tribunals;

advocates; members o academia; and civil society.

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Pakistan

In the past, the senior judiciary in Pakistan has decided some progressiveenvironmental law cases. It has been decided in several cases thatthe constitutional right to lie includes the right to a clean andhealthy environment,12 and procedural rules involving public interestenvironment cases are permitted liberal standing.13 Moreover, rst-instance environmental tribunals have been established in our provincesalong with an environmental magistrate who has jurisdiction to hearcriminal and other oenses at the district court level.

Following the recent constitutional amendment in Pakistan, however,the environment has now become a subject over which the provincehas jurisdiction instead o the ederal government. The previous ederal-level Pakistan Environmental Protection Act (PEPA), 1997 will need to bereplaced with provincial laws or each province, with the best outcomebeing the adoption o a uniorm environmental law code in each provincethat starts with the laws in the PEPA but introduces new provisions to llits gaps. The PEPA will continue until new provincial laws are enacted,but it is unclear whether new provincial laws will include all provisionso the PEPA, such as maintaining the existing tribunals.

Despite the lack o legislative clarity, the judiciary has constitutedgreen benches at the Supreme Court level and within all provincial highcourts. ADB is working on this issue with the Government o Pakistan

under another technical assistance project.In the meantime, since the mainstream judicial structure is not

aected by the PEPA, ADB is working with the Pakistan Supreme Courtin improving environmental adjudication by conducting a needsassessment or providing training modules or the capacity building o the

judges in environmental adjudication. ADB is also assisting in enhancingjudicial capacity to adjudicate on environmental issues by developing anenvironmental law curriculum that will be taught in judicial academiesand possibly law schools, and seeking to provide some environmentaltraining o judges.

Asian Judges Network on the EnvironmentAsian chie justices and judges recognize that they have much to gain by

exchanging experiences with judges across borders. Their proessionalties with ellow judges are oten strong, given their shared proessional

challenges. At the symposium, the senior judiciary proposed that this

common knowledge and experience be shared and exchanged through

an Asian Judges Network on the Environment (AJNE).

Moreover, the judiciarys duty to be independent required thenetwork to be proessionally distinct, rather than combined with anetwork that included other government ocials, such as legal andenvironmental proessionals.

In late 2010, ADB approved a technical assistance to establish the AJNE,supported by work at the subregional and national levels. Moreover, theCommon Vision on Environment or ASEAN Judiciaries and the BhurbanDeclaration 2012 conrmed the need to continue the cooperation and

engagement o judiciaries on environmental issues and to support thecreation o the AJNE.

As leaders o the legal proession and champions o the rule o law,the judiciary needs to take a central role in environmental governance

in Asia. This role demands that judges at all levels become expert inenvironmental challenges and their solutions, and the way that thelaw can best be used to ensure justiceand environmental justice.ADB is continuing to support the regions judiciary in acquiring theseskills and knowledge. The AJNE would be able to harness the collectivejudicial experience in environmental decision making in Asiabothits successes and ailuresand to strengthen judicial capacity in thisarea o the law. The AJNEs more important contribution, however, isto encourage judges to realize that they have a shared proessional

mission o advancing justice that extends beyond their nationaljurisdiction. Judges must realize that they are not only servants orrepresentatives o a particular government but are proessionalsin a proession that transcends national borders, and that they cancollectively contribute even more to solving many o the regions andthe worlds environmental challenges.

12 Ms. Shehla Zia and Others vs. WAPDA. PLD 1994 SC 693.13 General Secretary, West Pakistan Salt Miners Labour Union vs. The Director, Industries and Mineral Development. 1994 SCMR 2061.

Contact Persons

Marie-Anne Birken

Deputy General Counsel

mabirken@adb.org

Kala Mulqueeny

Senior Counsel

kmulqueeny@adb.org

Irum Ahsan

Counsel

iahsan@adb.org

ADBs vision is an Asia and Pacic region ree o poverty. Its mission is to help

its developing member countries reduce poverty and improve the quality o

lie o their people. Despite the regions many successes, it remains home to

two-thirds o the worlds poor: 1.8 billion people who live on less than $2 a

day, with 903 million struggling on less than $1.25 a day. ADB is committed

to reducing poverty through inclusive economic growth, environmentallysustainable growth, and regional integration.

Based in Manila, ADB is owned by 67 members, including 48 rom the

region. Its main instruments or helping its developing member countries

are policy dialogue, loans, equity investments, guarantees, grants, and

technical assistance.

Asian Development Bank

6 ADB Avenue, Mandaluyong City

1550 Metro Manila, Philippines

Tel +63 2 632 4444

Fax +63 2 636 4444

www.adb.org

Kala K. Mulqueeny, Senior Counsel and Sherielysse Bonifacio, Legal Research

Associate (Consultant) prepared this Law and Policy Reform brief.

For details, please visit www.adb.org

Printed on recycled paper Asian Development Bank. Publication Stock No. ARM124712 June 2012