Unit 4 & 5

Unit 4 and 5 NEPAL’S JUDICIARY AND ENVIRONMENTAL PROTECTION

Role of judiciary • What happens to the conflicts that are related to the environmental issues? • What is the role of judiciary/courts in handling the conflicts related to environmental issues? • How effective has the role of Nepalese judiciary been in tackling the environmental issues? • Has the Nepalese judiciary contributed significantly to the improved environmental quality or human health?

The Nature of conflicts Sources of conflicts • Conflicts due to lack of information and scientific uncertainty, different interpretation and opinions of the same information, • Conflicts over values arising from different cultures, ways of life, morals and ideologies • Conflicts over Interests of parties- such as involving benefits and losses of an issue • Conflicts over relationships where strong emotions are mixed up with merits/demerits of an issue • Structural conflicts that arise due to unfair balance of power such as in funding, resources distribution

Environmental conflicts and judiciary • Constitution of Nepal 1990 does not distinguish the presence of ‘Environmental court’ in Nepal. Although, Nepalese judiciary has exhibited concerns about enacting more Environmental Acts in Nepal. • The conflicts related to environmental issues are presented to the “concerned authority”- such as District Forest Office for conflicts related to the use of forest resources in a community. • Nepal’s supreme court looks after conflicts related to environmental issues on the basis of Public Interest Litigation (PIL).

Incidences of PIL on environmental issues • Ministry of Forests and Soil Conservation (MOFSC) regarding Forest fire and deforestation: Action was ought from MOFSC by a petitioner. Complain rejected because no constitutional and legal right of the petitioner were violated. • Right to information about the Arun-III hydropower project: Petition filed because the activities and the impact of the project were not transparent. Petition rejected because the petitioner was not specific about the demands. • The Medical College case: Government's decision to lease land to the Medical College was quashed because the land was of national, religious and archaeological importance. The government was made to consider options.

Incidences of PIL on environmental issues • Godawari Marble case: Complain accepted by the court and locus standi was issued to the petitioner based on the spirit of EPA 1997 and recognition that “right to clean environment is the right to life”. However, no remedy to the petitioner as the petitioner failed to specify clear legal provisions. • Mid-Regional Police Building at Rani Pokhari case: petition was filed because the construction was a threat to natural and historical heritage. But the building was approved because the impact due to vehicular emission and movement without the building was more significant than its construction. • Shree Distillery Case: Petition made citing the pollution it caused. Court directed the DAO to make the company implement the written commitments to environmental protection.

Incidences of PIL on environmental issues

• The plastic bag case in Kathmandu: Supreme court ordered the MOPE to carry out and investigate the impact of plastic bags onto the human health and the environment. • Pollution tax on fuel: Supreme court ordered the government to collect 50 paisa on every litre of fuel sold for environmental protection.

Courts and Environmental Disputes Merits • Independence and integrity of the judiciary is maintained • Reliability of evidence can be tested • Compliance to the law Demerits • Presentation is more important than the facts; uses powerful statements and arguments • Scientists cannot put their arguments to each other but through lawyers who are not scientific experts • Gives rise to win and lose situation (because of competition between/among parties) which is not always fair in environmental conflicts • Costly and time-consuming

Conflicts and outcomes Principles of successful outcomes of conflicts: • The results are fair and consider the interests of the parties • The agreement is reached quickly, at low cost, is acceptable and legally enforceable • The decision-making process provides the basis for future correspondence in case of conflicts of similar nature  There is no single universal dispute resolution technique applicable in all cases of conflicts

Alternative Dispute Resolution (ADR) ADR is a structured but less formal (than the courts) approach to (environmental) dispute resolution that aims to; • achieve settlements and satisfactory resolutions of disputes through mediation and negotiations  you don’t get what you deserve; you get what you negotiate • reduce costs and delays, and increase simplicity and efficiency  Applicable to situations/conflicts where cause and effect relationship and the stakeholders are not as obvious

Approaches to ADR • Arbitration: dispute is submitted to a third party that has expertise in the subject matter. Parties select the arbitrator and bound by his/her decision that are made after reviewing the evidence. The parties cannot withdraw from the process once it commences. • Mediation: a structured and confidential process involving a mediator who assists to derive the parties a compromised agreement. Mediator is not empowered to impose any decision but only facilitates the process. Parties may ‘walk away’

Approaches to ADR

• Mediation-arbitration: combines Mediation & arbitration. The med-arbitrator first acts as a mediator and then as an arbitrator. • Independent Expert Appraisal: Use of a third party with expertise on the subject matter of the dispute who reviews the case with additional research on the issue. The decision is non-binding and provides parties with a basis for further negotiation

Advantages/disadvantages of ADR Advantages: • A quicker and less expensive process relative to the courts • Produces results where each party is a winner • Relationships of parties are enhanced • Greater range of remedies can be explored • Parties can formalize their own procedure- less formal Disadvantages: • ADR erodes the rule of law, • Unjust outcomes may emerge if there is a power imbalance between/among parties • Efficiency of ADR has not been demonstrated

Courts and ADR compared Judiciary (Courts) •Rights-based •Circumstances based •Strict and more formal •Outcome is right or wrong (win or lose situation) •Strong role of the law and lawyers

ADR • Mostly interests-based •Focuses on the source of the conflict •Flexible and less formal •Fair outcome (win-win situation) •Strong role of parties in the conflict