The greening of the judiciary

HC to have a green bench dedicated to the Fourth Druk Gyalpo and devoted to environmental cases 

Environment: To hear and settle disputes on environment cases, the country’s highest appellate body, the Supreme Court, is working on constituting a green bench in the High Court, and allowing public interest litigation for environment issues.

Supreme Court Chief Justice Tshering Wangchuk said the green bench would be established in honour of the Fourth Druk Gyalpo, who has been a champion of environment, and chaired by the chief justice and high court justices.

Despite being known for its environment conservation policies, all courts across the country have to date not received a single landmark environment case.

“But since Bhutan is a champion of environment, I’m thinking of allowing public interest litigation, which means that even people, who aren’t affected, can file a case,” the chief justice said.

The Supreme Court is targeting to open the bench on June 2, the Fourth Druk Gyalpo’s coronation day, which is also celebrated as social forestry day.

As part of the green bench’s establishment, the Supreme Court is also planning to draft a bench book that would explain the rationale of setting up a green bench, and sign a memorandum of understanding with the National Environment Commission (NEC).

NEC, as the authority on all matters relating to the protection, conservation and improvement of the natural environment, will be asked for its comments when a public interest litigation case is filed with the green bench, the chief justice said.  Following NEC’s comment, the bench will decide on whether to admit or dismiss a case.

NEC secretary (Dr) Ugyen Tshewang said the commission welcomes the move to establish a green bench.

He said that, while the commission has not taken anyone to court for not complying with the provisions of the national environment protection Act, they have penalised many projects.

Of the 164 active projects the commission’s compliance monitoring division monitored from July 1 to December 31 last year, 21 projects were non-complying, for which a penalty of Nu 855,666 was imposed.

Most of the non-compliance comprised activities being commenced without environmental clearance (EC), late renewal of EC, operation of mines and quarry not as per the approved mine plan, and especially the dumping of overburden without check dam.

“For industries, the major non compliance was operating the furnace with low load with minimal emission without prior approval from NECS, when the industries had problem with gas cleaning plant,” an environment officer said.

(Dr) Ugyen Tshewang said that the commission also has a system of incentivising those complying projects by renewing their environmental clearances for longer period, while those who don’t comply are given three to six months time to renew the clearances. “We also don’t renew the environment clearance, if they haven’t taken corrective measures,” he said.

While the green bench may encourage people to file cases, observers said that it could also open avenues for environment issues to be politicised, and a case filed in the court, for instance, the construction of the Shingkhar-Gorgan road.

Although the Shingkhar-Gorgan road construction has spilled onto the 11th Plan, its construction has not progressed, mainly because a stretch of the road will run through a core area of Thrimshingla national park, claimed to be a habitat for the royal Bengal tigers.

Conservationists have long maintained that construction would still be in violation to the nature and forest conservation rules, 2006, which does not permit any kind of construction within the core area.

But should this reach the court, the green bench should be able to settle this issue once and for all, observers said.

That the bench will be chaired by the chief justice and the four justices of the High Court would assure that the case be studied thoroughly, the chief justice said.

“We’re the only Constitution in the world to have article 5, section 3, and the green bench will be formed to open an avenue for environment cases,” he said.

By Sonam Pelden

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