The impact on the quality of law enforcement by the existence of a court can never be underestimated. It is hard to measure because it has a qualitative nature, not a quantitative one.
Enforcement is shaped through the institution of a court because its profile as an inquiring institution promotes crime deterrence and prevention, accountability and the standards of enforcement. It unites the efforts of a fragmented system of enforcement, with around 17 agencies, departments and divisions that have a part in enforcing the vast body of environmental law.
The importance of the judiciary in environmental governance has been written about extensively in academia. There’s an environmental rule of law seen to be upheld only through the court as the ultimate authority that keeps government in check especially where government is one of the main culprits of environmental damage.
And having a full-time specialised court in environmental matters sends the message that the environment is a priority and that the courts are keeping up with social developments at ground level. It’s much greater than the question of caseload organisation and one that gives high visibility to the pro-environment commitment.
Converging environmental matters under the court also promotes the secondary objectives of researching cases in order to build appropriate policies especially with the online availability of judgements. It is something that can be done with traffic accidents, for example.
The need for a specialised environmental court is recognised by international conventions, especially in relation to the public’s access to justice. A 2016 UNEP publication estimated that around 1,200 environmental courts and tribunals exist in 44 countries around the world. The earliest were established in Australia in the late 1970s, but the bulk of the courts were established in the 1990s, at the height of the sustainable development debate. Sweden moved a step further by actually clustering all environmental laws in a single code in order to make enforcement more effective and efficient.
These are fully-fledged courts, not a court sitting held as required. A court that is instantly recognisable by the building housing in the same way that a police station, for example, signifies law enforcement. Crossing the building’s threshold turns the symbolism into reality, whether it’s the victim, witness, offender, prosecutor or defence.
The plus points of having a full-time specialised court are more positive than negative, especially if it is organised along the same lines of the Family Court, with both judges and a magistrate appointed to deal with the different competencies. There are enough civil cases to keep three judges focusing on family law full-time and it is probably time to have as many magistrates dealing with the different criminal aspects, including domestic violence, totally focused on such work all week.
Like the Family Court, an environmental court would help promote the idea of mediation in environmental cases wherever this can be explored – with the relevant changes in the law, of course. It could borrow the idea of a social contract, which is used in child safeguarding cases.
The range of environmental offences is so wide that a green court can have a triple jurisdiction: criminal, civil and administrative. Considering that environmental offences have a range of punishment that runs from a contravention of maybe €25 to €2.5m and life imprisonment according to the Environmental Crimes Act, makes it worthwhile to cluster such cases under one specialised roof.
Specialist knowledge is required in tackling offences in the spheres of dangerous waste disposal, natural resource protection, fisheries, air pollution, damage to the aquifer and climate change, for example. And then there’s the obvious: the nature of such offences is not the same as crimes against the person or against property: the effects of environmental damage can become visible after years, for example. That is a major paradigm shift in itself. There’s also the possibility of having class actions in this field more than in others, with the participation of environmental NGOs and local government.
The rate of offending in environmental crime is acknowledged in the law itself. In fact, littering contraventions for example, as much as damage inflicted on trees, rubble walls and fauna, account for punishment for the second and subsequent offence much unlike elsewhere in the law.
The problem with the EPRT is that, like in similar situations, persons are selected by a minister and the idea of a political appointment defeats the purpose of equity and impartiality. There is no other way of saying it and this was reiterated in the speeches marking the opening of the forensic year a few days ago. The environment needs a magistrate and one who sets standards in enforcement, keeps tabs on the efficiency of justice and upholds Malta’s commitments within the environmental rule of law.