Justice Lucky said that the Â‘right to life and not to be deprived thereof except by due process of law' provision, is enshrined in most if not all democratic countries constitutions.
Addressing last week's 21st annual Stetson International Environmental Moot Court Competition at the Stetson University of Law, Florida, Justice Lucky, who is based in Hamburg, Germany, said that such a Â‘right to life provision', should be read as a right to each individual to protect himself from the acts of others which will destroy the environment or the right to biodiversity.
Lucky threw out this constitutional proposition before a panel of other judges and participants of the moot competition, which saw countries as far as India and the Phillipines participating. He made reference to a case in which he sat as a judge in Trinidad that involved persons who were planting rice in the Nariva Swamp and were stopped from encroaching onto protected wet lands.
The rice farmers had sued the State for depriving them of their right to earn a livelihood. Lucky said that the rice farmers had planted their rice in some of the lands which were part of the largest freshwater swamp in Trindiad. The State intervened when the residents began to bulldoze the lands that were part of the protected area. In other words, Lucky told the international audience which included Judge William Burns who is a professor as well at the University of California, and Justice Nancy Daves.
Justice Lucky went on to say that the farmers had claimed they were given licenses to farm, but the State countered that they were trespassers and that they were also endangering the environment and flouting the law. Lucky told the audience that he ruled against the Â‘swamping for rice' and ordered the farmers be evicted. The international court judge referred to similar cases in other countries of acts of encroachment into the ecosystems, saying that the issue that is developing in the world for judges, is how do they adjudicate private rights against public interest concerns.
There is one environment-related case currently engaging the attention of the local High Court - the Highway Re-route Movement versus the State - over construction of the Mon Desir leg of the highway to Point Fortin. The Anti Smelter group against construction of the Almunium Smelter plant in Chatham is pending in the High Court. However, it may merely be relagated to an academic exercise because the plan to build the plant has been shelved.
But as countries of the world become more aware of the need for the courts to intervene in biodiversity issues, Justice Lucky said, there is a need for judges to be more mindful of the importance of biodiversity and the protection of the environment in their decisions.
He noted that already, some jurists hold the view that such an approach will encourage judicial bias in favour of the environment.
Others, he added, hold the view that reading and interpreting laws with protection of the environment in mind, display a greater appreciation of the need to ensure the environment is protected for the sake of man's survival. He said, "Put bluntly, it means ensuring that the court protects man from destroying himself by depleting and exploiting the resources upon which he depends for his survival." Therefore, Justice Lucky said, the right to use of the environment by people wherever they live, must include the right of the environment to protection in order to exist for the survivial of man.
TRINIDAD Y TOBAGO: Environment has constitutional rights, too
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