X hits on this document





3 / 19

of judges. Even without being a fully sub- scribed member of the Realism School of American Jurisprudence, it is clear that where there are numerous precedents, many conflicting with each other, there is no automatic wrong or right answer to a legal dispute. There are simply a variety of answers from which the judge has to choose one. In addition to the numerous precedents, there are also numerous tech- niques for interpreting those precedents and indeed, statutory enactments. It may therefore be unrealistic to expect judges to be machine-like and totally neutral. The good faith exercise of best judgment, as assisted by counsel, is all that can reason- ably be asked or expected of the judiciary.

It is in this sense, then, i.e., within the margin of discretion that the way in which judicial decision-making has been exercised that environmental organizations and environmentalists have sometimes expressed concern with the judiciary’s role in ensuring environmental enforcement and compliance. A perception exists, whether real or imagined, that many of our judges place a higher value on economic development than environmental protection and that this influences their selection of the final decision from the variety of possi- bilities that exist. This perception has been strengthened by several environmental law decisions. The anecdotal reports of the undisguised anger of a Trinidad and Tobago Magistrate when asked to try a man for contravention of the Wild Birds Protection Act whose only crime was, in the words of the Magistrate, 'trying to feed his family.' The fact that the first three attempts by Caribbean nationals to have the courts review official decisions that, allegedly, caused unlawful harm to the environment, were dismissed on the ground that the applicants lacked standing. The fact that the first judicial comment upon the work- ings of an administrative body established under the modern umbrella-type legislation was widely cited in the Jamaican Press as



evidence of the Court’s preference for com- merce over the environment.

Lest any Caribbean judge in atten- dance here should be tempted towards a citation for contempt, the present writer hastens to add that the perception of lack of judicial zeal towards environmental pro- tection is not confined to the Caribbean judiciary. At the international level, persist- ent criticism on this score led to the estab- lishment of an Environmental Chamber to the International Court of Justice, staffed by judges with particular expertise or interest in the field. It is therefore somewhat ironic that the first ruling of the Chamber in the Gabcikovo-Nygamaros Project case (Slovakia and Hungary), between was widely decried by the same critics as huge- ly disappointing for being anti-environment. In commenting upon the role of American Courts in the Search of Environmental Quality, Professor Joseph Sax of the University of Michigan Law School, wrote in 1970 that:

  • Anyone who enters a courtroom with a conservation case can first expect resist- ance from the court itself. The Judge’s principal thoughts are almost sure to be, "Why did you come to me? Why don’t you take your troubles to the legislature? What do I know about all this? This is not a matter for judicial consideration. What reasons can you possibly give for suggesting that I – a judge – should sub- stitute my judgment for the expertise of an agency whose business it is to make the kinds of decisions you are challeng- ing? Aren't you asking me to serve as a super-planning agency? And, in any event, what law was broken by the defendants?

  • I am not here to enforce the good, the true, and the beautiful, to be the fount of ultimate wisdom and social conscience. I am here to enforce the law. What rule is violated by this highway plan, this dam project, or this proposal to spray elm trees with DDT?

Document info
Document views67
Page views67
Page last viewedSat Jan 21 22:10:24 UTC 2017