New law would restrict the right to file pollution-related lawsuits to the government-affiliated Environmental Federation, trampling on the rule of law and exacerbating pollution in China, says chinadialogue's Liu Jianqiang
Proposals for a new environmental protection law which is currently under discussion will, in the name of the law, send the Chinese people back 40 years when there was no rule of law in China.
This law reminds me of the dismal 1970 draft revision to the Constitution, which declared in its Preface: "Vice-chairman Lin Biao is Chairman Mao's close comrade-in-arms and successor and deputy commander of the nation and of the army."
To name someone as leader or successor as leader is a flagrant violation of the spirit of the Constitution. The revised environmental protection law is similar in this regard.
The main stipulation of the proposed law so far as filing environmental lawsuits is concerned states that in cases of polluting the environment, destroying ecology and damaging shared social rights, the All-China Environmental Federation and member associations at provincial, autonomous region and self-governing city level can sue in people's courts. It totally excludes other environmental organisations and individual citizens from suing.
Filing environmental lawsuits basically means when that when environmental interests are damaged the law allows individuals or social groups to sue in order to protect public interests. For example, if a factory pollutes some land and the relevant government departments do not have the power to deal with it, environmental organisations or individuals can take the chemical factory or the government to court. Unlike in ordinary civil lawsuits, environmental litigants do not have to have a direct connection with the case they are suing over.
But according to China's Civil Procedure Law, in order to have the right to sue one must have "a direct connection with the case". This means that to instigate a civil dispute one must be someone whose personal or property rights have been directly damaged by illegal behaviour. This stipulation puts the affected person at a great disadvantage because environmental damage is mainly indirect or intangible, as in the case of the many "cancer villages" caused by chemical pollution, where those affected find it difficult to come up with clear proof that the disease is related to the pollution from a particular factory. This is even more the case for the majority of damaged rivers, animals and forests which do not have so-called "directly affected people" who can speak on their behalf.
Environmental rights are a form of public right, and we need structures to represent public rights and individuals to act as mass defenders of these rights, so we must urgently establish clearly a place for public interest lawsuits. This being the case, some people are happy with the proposed law and say it has "opened the door for public litigation."
This law in fact amounts to rolling back history.
First of all, it negates the aim of the law which is to control pollution, and in fact exacerbates pollution. Pollution is everywhere in China and has reached a historical crisis point but to rely solely on the government to combat it is far from sufficient. Apart from the government passing and implementing laws and promoting discussion, the most important way of dealing with pollution is public participation, and this amounts to ending the government monopoly in environmental protection, so that everyone participates.
Public interest lawsuits are one of the most effective means of public participation. But the proposed law hands over the right to public litigation entirely to the All-China Environmental Federation which has extremely close ties to the government, casting aside thousands of grassroots environmental organisations and individuals, putting public litigants who are cropping up all over the country in an "illegal" position. Under the guise of "public rights" this would result in implementing a monopoly, so that many polluting companies would not be effectively monitored and pollution would continue to flourish.
Secondly, it violates legal principles. When the Civil Procedure Law was revised in 2012, it included rules for "public litigation": in cases of polluting the environment, violating consumers' legal rights and other behaviour that damages social and public interests, legally stipulated bodies and related organisations can launch litigation in people's courts. But the proposed law does not stipulate the scope or conditions for these "bodies and related organisations" but simply nominates a certain environmental protection body. This is making a joke of the law.
When the 1970 revision to the constitution was being discussed the veteran social reformer Liang Shuming (1893-1988) said constitutions are created to prevent a single person having too much power, and no individual should be placed above the constitution. So when an individual was named in the preface to the constitution, with Lin Biao as Mao's successor, this was "not such a good idea."
Forty years later there are still people who want to use the law monopolistically to bestow certain rights on particular government bodies and insist that these represent the public interest, but the result is that they cast doubt on the progress made over the last thirty years in establishing a legal system.
The idea of the All-China Environmental Federation as a defender of this law is utterly absurd. When you think of Deputy Commander Lin Biao being written into the Constitution, do you sleep easily at night? Those who make light of the law will be taken advantage of by the law. If you are happy at the thought of a monopoly, you should be aware that the monopoly will destroy you, just look at the Chinese Red Cross for example. (The Chinese Red Cross has been immersed in scandal after accusations circulated that some officials were embezzling donations intended for victims of the 2008 Sichuan earthquake and purchasing unnecessarily expensive tents and vehicles - added by translator).
It may not be clear to you but the public are beginning to become aware of this. You may accept membership fees paid by big polluters or the vast amount of fines levied by the Ministry of Environmental Protection. But if this proposed law which tries to roll back history is passed, those responsible for huge pollution incidents will not be tried or punished and the All-China Environmental Federation will be the target of public anger and its good reputation will be dragged in the mud, just as happened to Lin Biao.