The court seminar heard about the rising environmental challenges brought by climate change including the recent flooding incident in Chiang Rai province. Credit: The Judicial Training Institute

Environmental rights need to be translated into new laws to facilitate judicial procedures

The recent seminar on judicial roles in environmental justice has extensively discussed on the roles of judicial bodies as much as challenges and opportunities in providing environmental justice to Thai society

The seminar, organised by the Judicial Training Institute and Konrad-Adenauer-Stiftung, Thailand Office, has recently received over a hundred participants from judicial offices as well as legal advocacy organisations and the media, who shared their views and knowledge about the issue.

The seminar heard about the increasing roles of the judicial bodies including the Court of Justice as well as challenges and opportunities for them to help address and provide environmental justice to Thai society during the time when the environment has become increasingly critical following emerging challenges including climate change.

According to the key speakers on the panel, Thailand has not yet had an Environmental Code nor the environmental judicial procedures law in place to facilitate the judicial procedures. Environmental rights and related rights including the right to a healthy environment or an environmental human right, which are fundamental rights supposed to be addressed in a Supreme Law, are not yet specifically addressed in the country’s Constitution either.

These, they said, have caused an obstacle in delivering full-fledged environmental justice in court as judges need to rely on related written law content to proceed with cases.

According to the senior judges on the panel, the Judicial Branch seriously got involved with environmental cases after having participated in the 2002 World Summit on Sustainable Development in Johannesburg, where roles of a judicial branch and legal systems were discussed. The meeting agreed that an independent judicial branch had a crucial role in promoting and enforcing laws to promote sustainable development. 

The Justice Court then decided to come up with a pilot environmental case division in Rayong province following a high-profile Map Ta Phut pollution case in 2004. It then officially set up the first division of its kind a year later. In 2006, another similar division was also set up in the Civil Court. In the Administrative Court, such a division was also introduced. 

Despite the environmental case divisions being put in place, the Judicial Branch has not had an Environmental Code and an environmental judicial procedures law to straightforwardly proceed with incoming cases. Instead, the courts have had to rely on over 50 laws, several of which are not directly related to the environment, or do not meet the core principles, including environmental protection. They are, for instance, the agricultural land reform law, the control of animal slaughter for the distribution of meat act, and others.

Environmental cases are generally handled separately in the Court of Justice (criminal and civil cases with three tiers of courts: courts of first instance, appellate courts, and the Supreme Court) and the Administrative Court. Most cases are related to forest encroachment, which bears hefty penalties. It is just in recent years that pollution cases have been increasing in courts following the economic growth and they are more about liability.

In order to keep up with the increasing environmental challenges, the Judicial Branch has been aggregating those scattered environmental-related laws into an Environmental Code and developing the environmental judicial procedures law to support its work. There are two versions of the environmental judicial procedures law developed by the Justice Court and the Administrative Court. They were submitted to the Cabinet Secretariat in late 2023 and are still pending for the Cabinet approval to be proceeded further in Parliament.

“The courts are waiting for them to be proceeded (by the Cabinet),” said one of the judges on the panel.

At the same time, the courts are considering overhauling the court system to support the work. So far, there have been three proposals proposed by judges and legal experts.

The first proposal suggests a justice court for specialised cases be set up as a one-stop-service court under the Justice Court and all environmental cases be transferred for deliberation and ruling under this specialised court. The second proposal suggests that a new committee be set up to initially screen and forward cases for both the Justice Court and the Administrative Court following their jurisdictions.

The last proposal suggests an establishment of a separate court system for environmental cases as “The Environmental Court”, similar to an idea of a parallel court system in other countries in Europe. In Germany, in particular, five separate court systems run independently following their different jurisdictions. They include the Court of Justice, the Administrative Court, the Labour Court, the Fiscal Court, and the Social Court.

However, if environmental rights, especially the right to a healthy environment or environmental human right, are not specifically addressed in the Constitution, all these efforts would not be easily materialised as definitions of terms concerned, such as “environmental protection” or even “environmental cases”, could not be clearly provided and proceeded with under the courts’ jurisdiction. 

They would not be addressed as fundamental rights, which are supposed to be protected by and under the Constitution and therefore committing the state and concerned bodies to protect these rights, according to the panel.

So far, the Justice Court has laid a standard of practice by ruling in one pollution case, under which hundreds of residents sued a factory they claimed had released toxic gases and carbon dust that affected their health. The case was brought to a general meeting of the Supreme Justice Court for the first time, which considered all concerned laws and international laws and principles including the UN Right to a Healthy Environment before ruling in favour of the affected residents last year. 

“This is a precedent in our society (under which recognition of the right to a healthy environment was taken into account in court). It can be applied to our environmental crises, be they pollution or climate change.

“The court has already set a vision about society and the environment apart from its role in enforcing the laws. Everyone should be able to live in a healthy environment. This is a fundamental right that should be protected by the state,” said one of the judges on the panel.

Source: JTI’s presentation/ SZ-Zeichnung: Michael Holtschulte

Lesson learned from climate change cases in Europe

One of the main speakers, Sompop Prathum, currently Judge of the Mae Hong Son Juvenile and Family Court and a key researcher of the latest judicial research launched early this year, Environmental Justice: Judicial Procedures and Climate Change related cases, the study on legal and judicial procedures and systems from notable cases in Europe and worldwide, shared the key findings from the study, which provides a critical lesson learned for Thai society in dealing with the growing need for a new environmental legal system and related supportive mechanisms.

According to Judge Sompop, an environmental legal system is ultimately aimed at achieving environmental protection, which generally embraces a pollution pay principle, sustainable development, and especially a precautionary principle. Increasing threats from climate change and rising court cases in Europe have proved that the judicial system and procedures are increasingly needed alongside despite the separation of power. 

The courts, he noted, perform to protect the environment as well as keeping those in power and their authorities in check through both criminal and civil laws.

According to his study, court cases about climate change in Europe were initially to raise public awareness, but later on, the cases have focused more on the states’ mismanagement as well as inefficient legal enactment and enforcement. Fundamental rights as addressed in the Constitutions are often referred to as the basis for legal complaints, and this has prompted them to become constitutional related cases.

In several countries in Europe, including Germany, France, and the Netherlands, where a number of cases were taken for citation in the study, domestic laws to facilitate the work of the judges are in place. In some countries, the right to a healthy environment is clearly addressed as a fundamental right in their Constitutions. In Germany, in particular, the Constitution even addresses the rights of future generations, under which one of the most notable cases in the country, Klimaklage, involving at least nine youngsters filing the case in 2018 to the Constitutional Court to protect their generations’ rights secured under the Constitution, has met with a major victory.

Beyond that, there are also legal and judicial systems and procedures over the state, which lie with the European Court of Human Rights to help ensure this right of the people. As their cases are finished in their countries, they can still have a chance to file a complaint to the court to help look into it again, as happened to three critical cases from France, Portugal, and Switzerland. 

Source: JTI’s presentation/ Greenpeace Schweiz

The case from Swtizerland, Verein KlimaSeniorinnen Schweiz and others v. Switzerland, in particular, has seen a major victory in court after a group of over 2,000 senior citizens along with other environmental advocacy organisations filed a complaint to it in 2020 for consideration after failing to win the case in the country. 

The group had filed a complaint in 2016 against the Parliament and related government agencies to enforce more of the country’s commitment to reduce greenhouse gas emission to protect their right to life and uphold the principles of environmental protection and sustainable development secured in the Constitution, but failed in court as the court ruled that they were not specifically affected by climate change as claimed.

The European Court of Human Rights, however, ruled in their favour and ordered the Swiss government to enforce more of its commitment to reduce GHG commission to protect its citizens’ fundamental right. The court viewed that climate protection is a fundamental human right and this commits the country to adhere to, although that could mean that the Swiss government must go back to its related domestic laws and comply with them.

Judge Sompop noted that Thailand has not directly addressed such the rights in the Constitution yet, and these, especially the right to a healthy environment or an environmental right, should be addressed specifically to help facilitate the judicial system and procedures.

Aside from the judges’ awareness of the challenges brought by environmental crises as well as legal hurdles, civil society and the public at large can also have a role in advancing environmental justice by empowering themselves so as  for them to keep up with similar challenges in court. Last but not least, he agreed that the country’s environmental legal system needs to be reformed or overhauled to facilitate the judiciary.

“The judiciary will then work much more easily to address the problem and deliver justice,” said Judge Sompop.

Distributive Justice

Dr. Suntariya Muanpawong, Judge of the Court of Appeal, Region II, acting as Judge of the Court of Appeal, said worldwide it’s widely acknowledged that the planet is facing a critical Triple Planetary Crisis, under which pollution, biodiversity loss, and climate change are identified.

While the challenges are becoming more and more critical, environmental cases are still treated with a corrective approach, or corrective justice, rather than distributive justice, under which the judiciary can play a role in helping balance between human needs and the ecosystems or the environment.

In some countries like China, it’s about the visions of the leaders, who can help set a course for distributive justice and other relevant tools. China’s leaders, she added, have come up with the so-called concept of Ecological Civilisation, reflecting a vision that deeply embraces the health of the ecosystems into humans’ civilisations. In Bhutan, the leaders including King Jigme Khesar Namgyel Wangchuck have also embraced a similar vision, declaring to protect the forest areas up to 60% in the country’s Constitution in an attempt to strike this balance, she further added.

The challenge that remains is whether concerned bodies can see this kind of justice through the existing human-centric lens to encompass distributive justice and environmental ethics, Judge Suntariya remarked.

“The Courts need to be more open-minded and open a space to work with other sectors to deliver this. Environmental cases are a delicate issue. Humanity is delicate, and so are the ecosystems. This is something that the Courts need to be sensitive to and weigh before slashing their swords,” remarked Judge Suntariya.

According to Judge Suntariya, who also took part in the country’s major reforms some years ago, there was an attempt to overhaul an environmental legal system, especially the work of the Courts. Over the years, the idea of creating a one-stop-service court has been shrunken to an enactment of an environmental judicial procedures law. 

Judge Suntariya agreed that the environmental legal system needs to be put in place so that justice could be delivered completely, and concerned parties need to come together to help accomplish this task.