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    Judges Agree: LAC Bench Needs Jurists Better Prepared for Environment Cases

    By Keith R | January 25, 2009

    Topics: Environmental Justice | No Comments »

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    The Fifth World Forum of Judges just concluded against the backdrop of the annual World Social Forum (WSF) in Belem, Brazil.  Since the site of this year’s WSF, Belem, sits at the mouth of the Amazon River, the Judges Forum prominently featured sessions on the role of the bench in protecting the Amazon.

    The Judges Forum was started by the São Paulo-based Association of Judges for Democracy (AJD) at the 2002 WSF held in Porto Alegre, Brazil, as a means for judges from around the world to get together and discuss the role of the bench in tackling social, human rights and environmental problems.  The fifth edition of the Judges Forum was organized by Brasilia-based Association of Federal Jurists (Ajufe), the Brasilia-based National Association of Labor Magistrates (Anamatra) and the Association of Judges of Rio Grande do Sul (Ajuria).

    The Judge’s Forum was opened on 23 January by Minister Carlos Ayres Brito of Brazil’s Supreme Court (STF).  While Forum attendance was heavily Brazilian, there were many notable international participants, including Chilean judge Juan Guzmán, who spearheaded the prosecution of former President Pinochet, Rome’s well-known judge and prosecutor Giancarlo Capaldo, the head of the Association of European Magistrates for Democracy and Liberties (MEDEL), and Colombian judge Luis Ernesto Vargas Silva, vice-president of the Interamerican Judges Network (REDJA).

    Although the agreed topic was protecting the Amazon, much of the discussion actually focused on general critiques of the preparation and performance of Brazilian judges regarding environment-related cases.  What interests me, though, is that many of the points made by the panelists at this Forum echo past public critiques by Latin American and Caribbean (LAC) jurists of their colleagues throughout the region.   In other words, it is not just a Brazilian problem and not a new issue.

    One panel member was retired magistrate Vladimir Passos de Freitas, ex-president of Ajufe, co-founder and current President of the Brazilian Institute for Administration of the Judicial System (Ibrajus), author or co-author of 18 law texts (including “Crimes Against Nature”) and current law professor at Pontifical Catholic University of Paraná (PUC-PR).  One problem, he said, is that most of today’s siting judges, whether in Brazil, Argentina or India, are being called upon to decided questions of public policy when their training and experience centers mostly on cases involving individual rights.  “The modern judge must concern himself with the collective.  However, we do not have a code of collective rights and do not have preparation” handling such questions. In Brazil, “the code of civil procedure is all geared to the individual right.”

    Another problem, said Freitas, is that even judges with some experience in environmental issues are not well prepared for the diverse and complex environmental issues coming into courts today.  “Currently, we are faced with cases involving issues such as waste disposal, air quality, protection of traditional populations, water theft, theft of sand from the beach, invasive species.  We also have some complex cases to come, such as environmental refugees.  Look at the case of the Maldives, a country that is in danger of being swallowed by the ocean as a consequence of global warming: what is the legal status of its people?  Environmental problems are complex.  Are judges prepared to deal with that?”  The judge of today handling environmental cases needs a more interdisciplinary background.

    He pointed out that most judges on the bench today did not study environmental law in law school.  In fact, even in an age when everyone talks about global climate change, many law schools still do not offer a full program on environmental law.

    Some law schools have professors teaching courses as if law practice was unchanged since they were studied law, when in fact they need to be training future jurists in such things as technology-based proofs.  The judge of today needs to be open to different and creative forms of proof, he said, such as Google Earth.  Many judges do not know how to intelligently use a computer.  Learn it, he urged, even if you do it with the help of your child or grandchild.

    He expressed dissatisfaction with Brazilian environmental justice.  “It’s behind the times and timid.”  He noted that too few Brazilian state judiciaries have special chambers devoted to environmental questions.

    Frietas suggested that greater use of conciliation procedures could be tried in environmental cases to cut down the long timeline needed for normal adjudication.  “Many cases can be resolved with conciliation,” but cautioned that it needs to be done with a view toward achieving environmental recovery, not simply covering basic costs.

    Federal magistrate of the Federal Regional Court for the Third Region (TRF3, which covers São Paulo) and professor at Pontifical Catholic University of São Paulo (PUC-SP) Consuelo Yoshida agreed that judges need more training in handling cases involving environmental public policy.  She also raised the problem in the Brazilian context (although it probably holds equally true in Argentina) of jurisdictional conflicts between state and federal courts.  Finally, she urged that judges revise their approaches to social-environmental issues.  “The concept of formal judicial equality needs to be considered in light of socioeconomic inequalities.  Judges need to adopt a triple and holistic vision, that takes into account economic, environmental and social aspects of the questions they analyze.”

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