Problems in enforcing environmental law and ensuring environmental rights for legal aid beneficiaries
30 December 2012 | Article
Rights of legal aid beneficiaries and environmental rights: Article 34 of Decree No. 7/CP dated 12/1/2007 on guidelines for implementing 2006 Law on legal aid stipulates: poor people, policy supported groups and other marginalized groups are entitled to legal aid services in eight fields, including environmental law.
Legal aid beneficiaries are entitled to, represention by counsel in order to lodge a complaint, to conduct negotiations or during legal proceedings. All of these activities shall be provided at no cost, and be followed-up, monitored by the state legal aid center, lawyers, or legal counselors.
The aim of providing legal aid services for the poor and marginalized groups is to protect their rights and interests, and to improve their legal knowledge. It also aims to avoid needless loss of business. Thus, legal aid plays an important role in raising people’s awareness on environment, and poverty eradication. Environment is closely linked with poverty, thus poverty can induce vulnerable communities (who are heavily dependant on local natural resources) to increase use of natural resources, causing overexplointation and the exhaustion of these resources. Poverty will lead to the lack of investment on environment. In additions, the growth at no costs strategy and population boom in Viet Nam will suplement to this, causing the serious environmental problems.
However, statistics on legal aid cases reveal that the number of environment-related matters is quite small, and none of them are successful. Although a large amount of water, air and noise pollution happen every day – affecting the lives of large numbers of people, and leading to many diseases – people are often not suffiiciently aware of their environmental rights or their right to legal aid to protect these rights. Even when they are aware of their rights, there is no mechanism to support the complaints process such as assisting with inspection, testing or collecting evidence.
“Environment” is a very broad field, and is the topic of more than 300 international conventions and thousands of agreements and treaties. Vietnam has joined nearly 20 important international conventions on the environment. The 1992 Constitution states: “All State offices, units of the armed forces, economic establishments, social organisations, and every citizen must observe State regulations on the appropriate use of natural resources and on environmental protection. All acts resulting in depletion and destruction of the environment are strictly prohibited”. The 1993 Law on Environmental Protection of Vietnam (amended in 2005) provides a comprehensive but still abstract definition of environment: “The environment comprises closely inter-related natural factors and man-made material factors that surround human beings and affect life, production, the existence and development of man and nature…” (Article 1). Hence, the word “environment” herein refers to the living environment of human beings. Humans have the right to live in a safe and clean natural and social environment. “Environment” is also the condition and measure of the quality of people’s life, a label used for promoting tourism, and a factor for social development in general. The law also prescribes Responsibilities of the State for protecting the national environment, including promulgating regulations to avoid/prevent the degredation of the environment, and rehabilitate degraded areas, prevent pollution, and deal with criminal and administrative breaches stipulated in other Laws (Laws on mineral resources, Law on oil and gas, Maritime Code, Labour Law, Land Law, Law on forest development and protection, Law on protecting people’s health; Ordinance on dykes, Ordinance on protecting aquatic resources, 2009 Law on urban planning, etc.).
The Government has promulgated many legal documents on handling administrative infringements to the Law on Environmental Protection, including Decree No. 72/2010/ND-CP dated 8/7/2010 on regulations for preventing and combatting crimes and other violations relating to the environment. This was the basis for creating the Environmental Police Force.
Vietnamese legislation gives individuals, organizations, and households the right to file complaints and to denounce the violations of environmental law rights and the right to seek compensation according to the Civil Code.
Thus there exists a contradiction: if we already have an adequate set of environmental laws with functionally assigned forces, why do violations still occur frequently and at a large scale, but with no successful criminal or civil lawsuits? The gap between promulgating and enforcing laws can be explained as follows:
First, the understanding of laws in general and environmental laws in particular by the public is limited. This is partly because environmental laws are written using complicated language that is very difficult for the public to understand. Meanwhile, local people are both polluters and victims of pollution. They are not fully aware of the consequences of their actions. Second, many communities, organizations, and companies still operate for short-term gains, without consideration of long-term targets or impacts on the environment, society or future generations. Third, in terms of public administration, even though the government claims that environmental protection is an important concern, when conflicts between economic and environmental benefits arise, economic growth is still prioritized. Fourth, the awareness and capacity of authorities to handle violations of the law is weak with cumbersome procedures to enforce the law. Detection of violations does not always lead to action. When penalties are issued, fines are often low and there is no requirement for the defendent to take steps to restore the breach. Although companies may pay the fine it may be cheaper than investing in modern sewage discharge technology to prevent further breaches. The lack of follow-up means that one violation may be repeated many times. Fifth, there are various factors that deny local people access to justice in order to protect their rights. Primarily, local people lack the resources to bring proceedings. While criminal cases need the responsibility of competent agencies, in civil cases, plaintifs may have to provide adequate evidence by themselves. The high cost of equipment for testing for pollutants (and the delay in obtaining results) makes is a significant challenge for local people wanting to bring civil proceedings. In addition, local unemployment sometimes means that polluting companies are not requested to close. Similarly, provinces eager to increase employment and income may not always conduct environmental impact assessments (EIA) before issuing operating licenses.
Realizing the importance of a clean environment for the life of present and future generations, our legal aid center has conducted many communication activities including circulating leaflets, organizing law briefing meetings, club’s meetings, providing explanation of laws, and supporting the preparation of dossiers and other requried procedures for filing complaints. Only when local people have the chance to detect violations, make requests for handling them, ask for compensation and when authorities settle these problems in a strict and uncompromised manner, will environmental infringement be addressed, and pollution be mitigated.
In our opinion:
- The Criminal Code should be revised so that penal liability is borne by the head of the company/organization.
- The Environmental Law should be amended to be easier to understand, and more detailed. Measures should be identified to promote the participation of agencies, organizations, households and individuals in environmental protection.
- A reward mechanism should be implemented to encourage business, organizations and local people to detect violations, and take action to address pollution at the local level.
- Fines should be increased for persons who commit violations despite understanding the negative impacts of polluting the environment
- It is imperative to examine cases in which the concerned state agencies administer inappropriate and improper legal measures, particularly to investors, state economic groups, etc., or in granting licences to steel, cement, chemicals mills, etc.
- Make personnel who grant licences to environment-damaging businesses accountable, as well as the chairmen of People's Committes in localities that violate environmental law.
- Give residential areas more rights to have their voices heard, and to protest the licencing of construction and investment projects.
Dr. Ta Thi Minh Ly - Former Director Department of Legal Aid, Ministry of Justice, Chairperson of Viet Nam Legal Aid Association for the Poor