The Access Initiative

Topics: Human Rights

The Best and Worst Countries for Environmental Democracy

By Jesse Worker (Posted: May 20, 2015)

The environment and human well-being are inextricably linked. When governments, businesses and others make decisions about land and natural resources, they inevitably impact the health, livelihoods and quality-of-life of local communities. So it stands to reason that the public should have a right to be involved in environmental decision-making—specifically, to know what is at stake, to participate in the decision itself, and to have the ability to challenge decisions that disregard human rights or harm ecosystems. These three fundamental rights are known as environmental democracy—and not all nations provide it to their citizens. The new Environmental Democracy Index (EDI) is the first-ever online platform that tracks and scores 70 countries’ progress in enacting national laws that promote transparency, accountability and citizen engagement in environmental decision-making. The analysis, based on 75 indicators, identifies the best and worst countries for environmental democracy. The results may surprise you.

The Top Countries with Strong National Laws for Environmental Democracy

The top three countries are all former Soviet states—Lithuania, Latvia and Russia. Many of their relevant national laws were enacted as part of democratization reforms in the 1990s and the United Nations Economic Commission for Europe’s (UNECE) legally binding Aarhus Convention on access to information, public participation and access to justice in environmental matters. Lithuania and Latvia have both ratified this convention and strengthened their legislation after doing so, such as Lithuania’s amendments to its Law on Environmental Protection and Latvia’s passage of its Environmental Protection Law. Russia in particular may stand out to some as surprising, especially in light of several environmental activists recently fleeing the country out of fear for their freedom and safety. Therein lies a powerful lesson: Countries’ national laws may be quite progressive on paper, but the enforcement of those laws is oftentimes weak or subject to corruption. All of the top 10 performers have statutes to support the public’s right to access government-held environmental information such as forestry management plans or mining permits, and all of them require at least a majority of government agencies to place environmental information like air and drinking water quality information in the public domain. While public participation scored the lowest across the index, all of the top 10 countries provide the public with the right to participate in major, national environmental decisions, such as infrastructure projects, forest management planning, pollution permitting and more. Lithuania stands out for having the highest score on the justice pillar. Its Civil Procedure Code and Law on Environmental Protection provides for communities to bring environmental cases in the public interest. What’s also interesting about the top 10 performers is that wealth is not necessarily the defining factor of strong environmental democracy laws. Panama and Colombia are resource-strapped nations, and South Africa is an upper middle income country; nevertheless, they’ve committed to enacting strong environmental laws.

The Lowest-Scoring Countries for Environmental Democracy

Haiti, Malaysia and Namibia scored lowest on the index. Of the bottom 10 countries, some had right-to-information laws, but most lacked provisions requiring that government agencies proactively make environmental information public. In countries like Philippines, Republic of Congo and Pakistan, citizens need to go through time-consuming or expensive information requests to obtain crucial information like statistics on air or drinking water quality. The government may or may not honor these formal requests. Many of the bottom performers also lacked requirements on collecting environmental information and monitoring compliance. National governments in Ethiopia, Nicaragua, Guatemala, Bangladesh and Thailand do not actually ensure that factories, mines and other facilities aren’t harming people or the planet. And requirements for public participation in these countries are almost always limited to environmental impact assessments, leaving out other important decisions such as the development of forest management plans, protected area policies or environmental protection laws. One positive note is that even at the bottom of the list, Saint Lucia, Nepal, Sri Lanka and the Republic of Congo allow an individual to file lawsuits in the public interest. Otherwise, the right to challenge or appeal government or private sector decisions is not as well established in these countries.

There’s Room for Improvement Across the Board

Even in countries that scored relatively well, there’s still room for improvement. Almost 50 percent of the countries assessed, for instance, are not making real-time air quality data available online for their capital cities. And while nearly half of the countries require agencies to monitor environmental compliance, 64 percent of those with laws on the books do not release any information to the public on emissions or wastewater discharges, pollutants that can impact human health and the environment. And even if countries have strong laws on the books, it doesn’t mean that they are adequately enforced. EDI measured countries based on the existence of national laws, not implementation. However, supplemental to the legal index, EDI includes 24 indicators on environmental democracy in practice. These indicators are not comprehensive, but they do provide some key insights to allow some comparison with legal scores. National laws aren’t the only way to improve environmental democracy, but they’re an important first step. EDI can help governments who want to promote transparent, inclusive and accountable environmental decision-making by providing an index to benchmark progress, as well as examples of good practices from around the world. It’s time to give citizens a voice—for the good of the planet, and for the good of communities around the world.

Freedom of Association

Published: 2008

The objective of these memos is to provide helpful informational research to further populate the available materials on access rights issues.

The information memos are commissioned by the TAI Secretariat. They represent the ideas and thoughts of their respective authors and do not represent the official position of the Access Initiative or the TAI Secretariat. While the secretariat does its best to ensure the quality of these memos they are essentially the work of their respective authors who take full responsibility for their content. Please contact the TAI Secretariat if you have ideas for topics which are not covered in the current research.

THE INDIGENOUS PEOPLES AND SMALL FISHERS OF SOUTHERN PALAWAN: A CASE OF LOCAL COMMUNITIES’ EXCLUSION FROM THE MANAGEMENT AND UTILIZATION OF MUNICIPAL FISHERIES AND AQUATIC RESOURCES

Published: 2008

Locked up, hungry and confused, the two young men from the Molboc Tribe were finally released. They do not regret what they did. They will likely do it again if they have a chance to do so… just to put food on the table, as how their ancestors, as native fisherfolk in Balabac, Palawan, had done before.

For over two decades, members of the Molboc tribe, as well as local communities in the southern Palawan of town of Balabac, have had to endure harassment and ill-treatment from the security forces of a pearl farm corporation, which was prohibiting them, unjustly, and without any legal basis, from fishing in their traditional fishing grounds.

Calls for the local government unit (LGU) to mediate and facilitate a system for the peaceful co-existence of the pearl farm and the fisherfolks were ignored. Instead, in early 2005, the Municipality of Balabac enacted an ordinance declaring the entire municipal waters as a “Protected Eco-Region”, where fishing activities are prohibited but pearl farming is allowed.

The Ordinance came to pass notwithstanding the constitutional mandate of substantive and procedural due process, and the various legal provisions of guaranteeing citizen’s right to informed and meaningful participation in the formulation of policies concerning the management and conservation of their community’s natural resources.

In 2005, TAI – Philippines conducted a case study following the TAI Methodology that focused on (a) public access to information on the grounds for the Subject Policy, and (b) the opportunities for participation extended to the public in the enactment of the Subject Municipal Ordinance. Primarily, the actions of two government agencies – the LGU of Balabac and the Sangguniang Panlalawigan (Provincial Board) of Palawan, which reviewed and approved the Subject Municipal Ordinance – were evaluated. A total of 43 indicators (20 for access to information and 23 for opportunities for participation) were examined.

TAI – Philippines also conducted a re-assessment of the case focusing on access to justice as one of the pilot case using the Poverty Tool Kit. It was written from the point of view of the poor groups, small fishers and indigenous peoples in the Balabac case.

The importance of access to information and opportunities for participation cannot be overemphasized in this case. Given the affected communities’ history of disenfranchisement and repression, any environmental measure that would have the effect of depriving them of their traditional fishing grounds, or restricting their use of the same, requires intensive social preparation.

Widespread information dissemination and extensive community consultations must be undertaken not only to ensure that the proposed policy will be understood and well received by the individuals and communities affected, but also to make sure that substantive rights are not run over rough shod, and equity in access is ensured.

In this case, not only did the Municipality of Balabac fail to observe the foregoing processes, it also adopted a policy, purportedly for environmental protection purposes, that goes against international principles, Philippine statutory provision and established coastal resource management practices (i.e., it allowed pearl farming in a core or strict protection zone). The confluence of these circumstances has given rise to a public perception, whether rightly or wrongly, that the Subject Policy was adopted solely to accommodate Jewelmer’s Co. (the pearl farm) interests and to legitimize the prohibition that it has, for many years, foisted upon the affected communities without the sanction of law.

As things stand, it appears that the court case is the affected communities’ last remaining legal remedy. However, given the existing realities, resort to judicial action has not proven to be a speedy and adequate remedy. To date, the case remains pending, almost one year since its inception, and the Affected Communities continue to languish in poverty as they await its resolution.

It may be concluded that this predicament can be attributed to two main factors, namely: (a) gaps in existing laws; and (b) the failure of political will, the lack of a deep-seated orientation on, and capacity to implement, principles on access to information and opportunities for participation, on the part of the concerned government agencies.

It is hoped that policy reforms, enforcement actions and capability building measures, if implemented, will not only provide the affected communities with means for immediate relief, but will also prevent other IPs and fishing communities from being placed in a predicament similar to theirs, and render the processes involved less susceptible to manipulation to favor vested interests.

TAI – Philippines Case Study Writer: Atty. Jose Florante Pamfilo

See: TAI – Philippines Poverty Case Report
TAI – Philippines Case Study attached.

The Human Right of Access to Public Information Strengthens in Paraguayan Courts

Published: 2008

On Friday, May 2, the Third Division of the Civil and Commercial Court of Appeals of Asunción overturned a First Instance decision and ruled in favor of a petition filed by the Ombudsman – with the legal assistance of IDEA’s lawyers- representing citizen Félix Picco Portillo, who had previously requested to access public information at the Municipality of Lambaré, without success.

The Court of Appeals, through the opinion of Judge María Mercedes Buongermini Palumbo –to which Judges Neri Villalba Fernández and Arnaldo Martínez Prieto adhered-, held that “the appearance of the right of access to information in the catalog of fundamentals rights is relatively recent”. That, “this right founds its justification on the more generic right –essential to deliberative and participative democracies- of having the freedom to form our own opinion and participate responsibly in public issues; it contributes to the formation of our own opinion as well as public opinion, which is closely linked to political pluralism. It constitutes, thus, in an essential tool for the issues that matter for citizen and collective life, and it is a condition for participation in the management of what is “public”, that is, the system of relations and interrelations that constitute the basic scheme that supports the democratic coexistence”.

The Court of Appeals also held that “any denial to provide information related to a public organization’s structure – even its personnel- or the allocation of public funds, not covered by an exception clause, (…) it is an unjustified measure that infringes the right of access to information established in our Constitution”.

Finally, explaining that it was obiter dictum – that is, an argument that is unnecessary to the decision in the case and therefore not precedential-, the Court of Appeals stated that “the circumstance that the plaintiff hadn’t exposed the object or the finality of his request, that is, the justification of his interest on the information he asked for, it is not an obstacle for the delivery of that information. Such an argument is not proper and it is strange to the exercise of the right of access to information, since this right is justified by itself according to the generic objectives of participation and control in the democratic life, and not in relation to a specific motivation. Demanding a citizen to provide an explanation would be a transgression to this right, imposing requisites not established by the legal norm for its compliance; on the contrary, it would have a secondary effect: it would open the door for a public entity to evaluate the adequacy of the request’s reason, because no other objective would be deducible or attributable to that requisite”.

The Court of Appeals also imposed the court costs to the Municipality of Lambaré and, on Friday, May 16, Mr. Picco Portillo finally got access to the information he had requested.

Mr. Picco Portillo initiated the amparo action* that ended in this Sentence with the support of the Ombudsman’s Access to Public Information Center – APIC. The APIC was created by Resolution 160/07, in response to a request presented by of the Environmental Law and Economics Institute – IDEA, given its Spanish acronym- within the framework of the “Center and Window of Access to Public Information” Project, supported by the Information and Resources Center for Development – CIRD, given its Spanish acronym- and the financial assistance of the United States Agency for International Development – USAID.

The Ombudsman’s Access to Public Information Center was created to:

Canalize citizen inquiries of access to information that public agencies generate or obtain with public funds. Receive denounces and complains of denial of access to public information. Bring to Justice cases of unjustifiable denial of access to public information.

Attached you will find the Sentence of the Court of Appeals in Spanish. For further information, please contact Ezequiel F. Santagada (ezequiel.santagada@idea.org.py), Coordinator of the “Center and Window of Access to Public Information” Project. Environmental Law and Economics Institute – IDEA, Asunción, Paraguay. Tel/Fax (595-21) 614-619/20.

  • Its parallel in the common law system could be the writ of injunction and the mandamus combined.