Problems in enforcing environmental
law and ensuring environmental rights for legal aid beneficiaries
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, representation 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 dependent on local
natural resources) to increase use of natural resources, causing
over exploitation 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 supplement 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 sufficiently 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:
1. The Criminal Code should be revised
so that penal liability is borne by the head of the company/organization.
2. 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.
3. 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.
4. Fines should be increased for
persons who commit violations despite understanding the negative impacts of
polluting the environment
5. 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.
6. 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.
7. 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