The Access Initiative

Topics: Laws and Regulations

Best Practices- Access to Justice

Published: 2008
Agenda for Public Interest Law Reform

 

This is a memorandum authored by Professor John E. Bonine. The best practices regarding access to justice include removal or modification of two major barriers: (1) restrictions on “standing to sue” and (2) the high costs of going to court. The first of these is a legal barrier. It determines which persons or organizations are allowed to file lawsuits in the courts against public authorities (governmental bodies). The second barrier can be either a legal barrier or a practical one. Lawyers and lawsuits can be expensive. Citizens and their organizations usually lack the resources to bring such cases to court.

Barriers to access to justice can be imposed by either national legislation (or in just one country by a national constitution) or court interpretations and practices. They can be overcome by national constitutions, legislation, and court interpretations.

Standing to sue

In countries with the most restrictive policies on “standing to sue,” a person cannot file a lawsuit unless he or she can demonstrate that a “legal interest” or “legal right” will be affected by the action of a public authority. This is sometimes phrased as requiring that a person show a “direct and individual concern,” that he or she is part of the public that is legally “concerned,” or even that he or she must be able to prove an “injury” that is satisfactory to the courts. All of these formulations of standing requirements impose definite barriers to access to justice.

In many countries, which have better practices, the “standing to sue” requirement has been softened by requiring only that a “sufficient interest” be shown. A similar softening occurs in countries that allow any person to start a court case to defend a “diffuse interest” or the “public interest.” These types of progress have taken place in countries in Latin America, Asia, Africa, and Europe. In several countries, particularly in Europe and nearby regions, registered nongovernmental organizations (NGOs) with a concern for protection of the environment are granted standing to sue without need to show either a legal or “sufficient” interest.

The best practice, however, is to abolish entirely the requirement for “standing to sue.” In such countries or jurisdictions, the courts do not look at who is bringing a lawsuit, but only at whether a public authority has violated its constitutional or statutory duties. This “open standing” (or actio popularis) can be granted by legislation or a national constitution. It can be granted explicitly or through judicial interpretation in court decisions. Such open standing has been recognized in parts of Asia, the Americas, and Europe.

Economic barriers

The most obvious economic or financial barriers to access to justice involve the high cost of lawyers and the high costs imposed by courts as a condition of filing lawsuits. These costs obviously consist of paying a person’s own lawyer. But in some countries a party who loses a lawsuit must also pay the costs of the opponent’s lawyers and experts, which can dramatically increase costs and raise barriers even higher.

With regard to a person or NGO having to pay lawyers to bring a case, the best practice is for government programs to provide steady funding for individuals or NGOs that are dedicated to the protection of the environment. Funding from private charitable foundations is crucial as bridge funding, until such time as governments recognize the value of public interest litigation and their obligation to support it. Relying on the voluntary efforts of private lawyers is necessary in many countries at the present time, but it is sporadic and uncertain. This results in unequal justice because business interests have the resources to pay for their own lawyers and the pressure of threatened lawsuits coming from only one side can lead government officials to lean in their direction.

With regard to being ordered by a court to pay the costs of the lawyers and experts on the other side of a case, when the individual or NGO brings a case but is not successful, countries that have such a “loser-pays’ policy have erected a particularly high barrier to justice. The best practice is to eliminate such a policy entirely. This can occur through either legislation or court decisions rejecting this policy. Such court decisions can be based on constitutional, human rights, or pragmatic grounds. A good practice is at least to create an exception for public interest cases, or for all cases in which a public authority is on the other side of the case.

In the process of abolishing the loser-pays requirement as it is applied against individuals and NGOs, some countries provide for courts to award costs to individuals and NGOs when they win. Such “one-way attorney costs” is a best practice, giving citizen enforcers of environmental law the best of both worlds.

Stimulus or Environment – Must We Choose?

By Seema Kumar (Posted: February 6, 2009) 

The American Recovery and Reinvestment Act of 2009, the infamous stimulus package that is regarded as the much needed bandage to the ailing U.S. economy, is locked in Congressional tension. If passed, the Act would inject an almost $900 billion into federal programs and projects, with the explicit purpose of creating jobs, investing in infrastructure, advancing energy efficiency, and restoring credit confidence. Amendments to the bill have been aggressively tossed back and forth in the name of urgency and relevance to stimulation, and one in particular has enraged environmentalists.

U.S. Republican Senator John Barrasso of Wyoming, in a February 4, 2009 press release, depicted the National Environmental Policy Act (NEPA) as a red-tape inhibitor, which is hindering the implementation of “shovel-ready” projects that are otherwise prepared to proceed with construction, but for a NEPA mandate that requires the environmental impacts of federally-funded projects be reviewed and mitigated. Senator Barrasso’s amendment specifically seeks to “streamline” the NEPA process with a 270-day deadline to complete an environmental review for stimulus package projects. Under the current NEPA provisions, environmental reviews are not subject to such deadlines.

The U.S. Chamber of Commerce along with a band of business representatives have endorsed Barrasso’s amendment. In fact, the U.S. Chamber of Commerce has been a long-time advocate to revise NEPA, as evident from a Comment of its Initial Findings and Draft Recommendations on improving NEPA it submitted to the NEPA Task Force on February 6, 2006. The Comment characterizes NEPA as a “weapon to delay and eventually terminate, through attrition, proposed projects that some people oppose.”

According to Steven Biel, Greenpeace’s global warming campaign director, NEPA “is an absolutely essential review to ensure public involvement in public works decisions… There are more than enough shovel-ready projects out there that have already undergone NEPA reviews. There is absolutely no reason why this process needs to be waived.”

In response to Barrasso, Senate Environment and Public Works Committee Chairwoman Barbara Boxer (Democrat-California) quickly retorted with an amendment of her own, which would require that any project that is not in compliance with NEPA either finalize its review or be replaced by another project that has a final review.

As the Senate readies to vote on the stimulus package, for the sake of the economy and the environment, it is crucial that President Obama emphasizes the purpose of this bill – jobs, infrastructure, energy efficiency, and credit confidence – and asks Congress some probing questions:

How is it logical to argue whether projects that have not conducted a proper environmental assessment should violate existing law while projects that are truly “shovel-ready”, worth millions in dollars and job creation, can benefit from stimulus funds right now?

How does curbing NEPA promote to energy efficiency when the potential consequences of such actions could threaten public health and energy independence?

How can America invest in solid infrastructure without prescribing to the necessary procedures and assessments (including environmental) needed to ensure public safety and durability?

Struggle Over Information in Kenya

By David Heller (Posted: January 16, 2009)

The Kenyan government’s power to undermine the press’ essential role in providing and interpreting access to information has been reaffirmed and strengthened by President Mwai Kibaki, who rang in the New Year by codifying a series of amendments to the controversial 1998 Communications Bill.

“While Press Freedom is a cardinal pillar of democracy,” the President explained, “this is a right that carries with it special duties and responsibilities. Press freedom must therefore be counterbalanced with other freedoms and must at all times take into account the overriding interest and the safety of Kenyans.”

The original Communications Bill liberalized and regulated the fledgling Kenyan communications sector. An early balancing act, it also reflected an unwillingness to fully cede control over the media’s content to private entities.

Section 88, the target of much disdain, empowers the Minister responsible for Internal Security “to take temporary possession of any telecommunication apparatus or any radio communication station or apparatus within Kenya,” upon “the declaration of any public emergency or in the interest of public safety and tranquility.”

This section also grants Kenya’s government the power to intercept, detain, and dispose; any telephone call, email, or letter, being transmitted at such a time.

Since being passed, the government has not been hesitant to exercise this power and wrest control of credible media outlets.

As The Standard reported,

At the height of the chaotic 2007 general election, the government deployed paramilitary personnel at [a] KICC media centre who flushed out journalists, sealed off the facility then switched off live transmission feeds. The government also banned live coverage of violent chaos across the country immediately [after] President Kibaki was sworn in late in the evening.

The new amendments do little to prevent such events from recurring. While their stated purpose is to euphemistically “help streamline and introduce regulatory provisions in electronic transactions and broadcasting,” they utterly fail to address Section 88 and in fact erect additional barriers to the free flow of information. Now, the government can control the press’ output without requiring the pretense of emergency.

As International Freedom of Expression eXchange reported,

The amendments… grant the Information Minister sweeping powers to control what can be broadcast, when and in what form. The Minister will also appoint the government-dominated Communication Commission, which is charged with licensing broadcasters and ensuring the broadcasts are of “good taste.” Among other provisions, penalties for press offences – fines and jail time – have also increased.

President Kibaki justified codifying these restrictive measures by referring to the amendments’ goal of initiating economic growth.

“The enactment of the new law,” he says, “would enhance investor confidence and lead to more jobs and economic benefits especially for our youth.”

He also took some parting shots at the Kenyan media – who’ve recently been very critical of Members of Parliaments’ inflated salaries – saying that the press must “recognize that freedom must go hand in hand with responsibility.”

Despite his ostensible commitment to democratic principles, President Kibaki misunderstands the relationship between freedom and responsibility. It is the responsibility of the press is to report the truth. Kenya has stacked the deck against its media so much so that it has undermined the ability of the press to uphold this responsibility and report even innocuous truth. What good is the press’ freedom then when their ability to fulfill this purpose is being co-opted?

Furthermore, Kibaki underestimates the supreme value of truth for democracies. Citizens’ knowledge of their governments’ true actions – made possible through their access to information – is an ideal of fundamental importance. It ought to always trump a state’s fleeting and capricious desires for prosperity, happiness, and even security or so-called interests.

Implicit in the President’s remarks is his desire for a balance between the ideals of a secure state and his peoples’ right to a free press. While the oft legitimate tension between societal safety and freedom of information is at the heart of many struggles over media censorship, he would do well to take a step back and see just how unbalanced his new laws have made these competing goals become. As they say, the truth hurts. Let’s hope there are enough courageous journalists left in Kenya to make him feel its sting.

The Calabash Project

Published: 2005
Tools for Effective Participation in the EIA Process

 

Environmental Impact Assessment (EIA) has existed for 30 years. During its evolution, public involvement in the EIA process has become a key criterion that distinguishes EIA as a participatory decision support tool. Consequently, EIA is a suitable and appropriate platform from which to build participatory decision making approaches for the southern African region. Environmental Impact Assessment is one window through which the public has the opportunity to engage a government in decision-making.

However, in southern Africa, there is insufficient public access to information and there are inadequate or weak mechanisms for public participation in decision-making. The Southern African Institute for Environmental Assessment (SAIEA), through support provided by the World Bank TFESSD (Trust Fund for Environmentally and Socially Sustainable Development) and Canadian CIDA, undertook 2-year project to develop a process to enhance participation in decision-making in the SADC region Africa. Calabash was not designed to actually do public participation, but rather was structured so that regulators, private sector, practitioners and civil society had the capacity, knowledge and tools to better undertake respective public participation programs on individual projects and programmes.

Governance in its simplest forms describes the relationship among institutions, processes and ideas. It is about the exercise of power, accountability and relationships in pursuit of an organization’s mission or a nation’s goals. In Africa, achievement of a country’s goals are severely challenged due to such issues as resource degradation, HIV/AIDS, water scarcity and conflict. EIA of projects and Strategic Environmental Assessment (SEA) of policies plans and programmes, are evolving rapidly to address wider sustainability objectives beyond biophysical concerns. The evolution of these planning tools is recognizing that the public has a significant role to play in the EIA or SEA process to assist a government to achieve its objectives, while at the same time advancing democratic reform and good governance practices. How a respective government engages civil society with respect to decision-making is one measure of how a government is reforming its governance and democratic reform processes. The recent Commission for Africa report concluded that governance is one of the key issues to be addressed by Africa if poverty reduction is to occur.

Many African countries have well written EIA statutes that require the involvement of the public or civil society in the project decisions that affect them. To date, the application and success of public involvement in EA has been most variable due to lack of capacity, information, knowledge and networks in many stakeholder groups. Regardless, EIA presents a very effective and practical tool for African governments to show to the international investment community and the African democratic review teams that democratic principles at the project/programme level are being applied. EIA is one big “window” through which democratic reform can be realized by more participation.

Furthermore, while democracy has been widely embraced by many African governments, regional bodies and international gatherings, it is difficult to assess the extent to which democratic practices have genuinely taken root One fact is clear – a county’s citizens rather than outsiders are best placed to undertake a comprehensive and critical identification of the challenges confronting their country on the path of democracy development and consolidation. And their participation in decision-making is key to democratic reform. Citizens, informed and active EIA can act as advocates for its use in decision-making processes affecting their lives to their political leaders who will then require it of regulatory bodies. Sustainable development can hardly be achieved without stakeholder involvement in the EIA process. EIA with public consultation is an essential part of the process and system needed to make sustainable development happen.

The Calabash project is one step of many to assist the SADC region to move forward on democratic reform by using EIA as a catalyst for participatory decision-making by providing appropriate tools, knowledge and networks to regulators, civil society, practitioners and industry of the SADC region.

THE INDIGENOUS PEOPLES AND SMALL FISHERS OF SOUTHERN PALAWAN: A CASE OF LOCAL COMMUNITIESÂ’ 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.

Access to Environmental Information in Uganda

Published: 2008

Access to environmental information is becoming increasingly important, especially in countries where people rely heavily on natural resources. International norms can make a significant difference in this respect, by pushing public authorities towards better environmental governance. FIELD is committed to the progressive development of international law and its effective implementation at the national and local level. FIELD has been involved in environmental law reform projects in different African jurisdictions as well as the international negotiations on climate change, biodiversity and trade. The report draws on these diverse experiences and analyses the Ugandan law and its implementation in the wider international context. It takes into account lessons learnt in other jurisdictions and uses a set of universally applicable indicators. We hope it will generate further discussions between civil society organizations and government – not only in Uganda.

Joy Hyvarinen Director, FIELD

Let Justice Flow – A TAI Success Story

Posted By Lalanath de Silva (October 2, 2008) 

This is a story about how community leaders activated the Supreme Court of Sri Lanka to intervene and save a river the Deduru Oya. If you cannot view the video from the video frame below you can do so by clicking here

The Deduru Oya river bed had been mined for years for sand. Sand is used in buildings and road construction. Over exploitation of the river had lead to major environmental damage river bank erosion, lowering of the water table, salt water intrusion, poor water quality and habitat destruction.

The Supreme Court acted on a human rights case brought by community leaders. Led by Chief Justice Sarath N. Silva, the Court banned sand mining in the river and ordered the Geological Survey and Mines Bureau to stop issuing mining permits. The Court galvanized the Police to arrest and prosecutes illegal miners. The issue received wide publicity in the press.

Mining operations have been stopped for about two years now. As a result natural recovery has begun. Additionally the community leaders have been able to obtain funds through the UNDP and commence rehabilitation of the river bank in two critical areas.

The case was made possible through financial and legal aid given to community leaders by the Green Movement of Sri Lanka. The green Movement is part of The Access Initiative Coalition of Sri Lanka.

New Regulation for Public Participation in Ecuador

Published: 2008

In October 2006, the environmental movement welcomed the adoption of the regulation on public participation and consultation in decision making. This fact generated great expectation by the implications in environmental management.

However, in May 2008, President Correa issued a new regulation that governs the mechanisms for social participation in environmental management. In the view of Manolo Morales, President of CEDENMA, “what –the new regulation- pursues is to facilitate the process and make it more expeditious manner that does not become an obstacle to development”.

This new regulation sidelined several important criteria reflected on the previous, for example, consultation pre-implementation and monitoring of impacts generated by the laws, policies and strategies. This creates a gap again, and highlights the need that the processes of policy development involve citizen participation and especially the stakeholders who will be affected (positively or negatively).

At only include participation and consultation processes for environmental impact assessment, can be considered a regulatory setback. But there is also the perception that the previous regulation could not be implemented due to lack of resources, capacity of Ministry of Environment and information. This may have generated in the government the need for a more “real” and operational mechanism.

 

Nuevo Reglamento de ParticipaciĂłn en Ecuador

En octubre de 2006, el movimiento ambiental celebrĂł la aprobaciĂłn del Reglamento sobre ParticipaciĂłn Ciudadana y Consulta Previa. Este hecho generĂł gran expectativa por las implicaciones que tendrĂ­a en la gestiĂłn ambiental.

Sin embargo, en mayo de 2008, el Presidente Correa emitiĂł un nuevo reglamento que regula los mecanismos de participaciĂłn social en la gestiĂłn ambiental. A criterio de Manolo Morales, Presidente de CEDENMA, “lo que persigue –el nuevo reglamento- es facilitar el proceso y hacerlo más expedito de manera que no se convierta en un obstáculo al desarrollo”.

Este nuevo reglamento deja de lado varios criterios importantes que recogía el anterior, como por ejemplo, la consulta de pre-ejecución y el control de los impactos generados por las normas, políticas y estrategias. Esto último genera nuevamente un vacío, y resalta la necesidad que los procesos de desarrollo normativo cuenten con la participación de la ciudadanía y especialmente de los actores que se verán afectados (positiva o negativamente).

Al únicamente regular la participación y consulta en los procesos de evaluación de impacto ambiental, se puede considerar un retroceso normativo. Sin embargo también existe la percepción que el reglamento anterior no pudo ser aplicado en la práctica por falta de recursos, capacidad del propio Ministerio del Ambiente e información. Esto pudo haber generado en el gobierno la necesidad de contar con un mecanismo más “real” y operativo.

Freedom of Information Victory in India

By Lalanath de Silva (Posted: January 28, 2008)

For the first time in its ten-year history, the National Environmental Appellate Authority* (NEAA) has overturned a decision by the Government of India, quashing an environmental clearance granted by the Ministry of Environment and Forests. In its decision, the Appellate Authority cited a failure of public participation and access to information.

On December 19, 2007, the NEAA quashed environmental clearance for the Polavaram Multipurpose project granted by the Ministry of Environment and Forests. The project, which would have displaced close to 3000 families (totaling about 200,000 people) in the States of Andhra Pradesh, Orissa and Chattisgarh, was to have included a hydroelectric power component of 960 MW and irrigation facilities. The project was proposed by the State of Andrah Pradesh.

The project was opposed by civil society organizations on the grounds that the required Environmental Impact Assessment had been performed inadequately, and the Ministry of Environment and Forests had failed to conduct any public hearings in the affected States of Orissa and Chattisgarh.

During the hearing, both States contended that the legally required environmental clearance was granted by the Ministry of Environment without considering the opinion of the states though they were affected by submergence.

Immediately after the Appellate Authority’s decision, the State Government (Andrah Pradesh) filed a petition for the Andra Pradesh High Court (the highest court in the State) to review the case. The Court has now temporarily suspended the decision of the Appellate Authority and fixed a hearing for February 11.

The NEAA found that:

  • People to be affected by the project had no access to the executive summary in the notified place
  • People to be affected by the project had no opportunity to participate in public hearings and express their view on the likely environmental impact of the construction of the project

The Appeal against the clearance was filed by Dr R. Sreedhar of Academy for Mountain Environics and represented by Ritwick Dutta. Dutta is a leader of the TAI network in India, and is preparing to launch a formal, TAI assessment of access to justice, public participation, and access to information in Northern India.

*The National Environmental Appellate Authority is the only competent Authority set up by Parliament through an Act to hear appeals from aggrieved/ affected persons against the grant of environmental clearances by the Ministry of Environment and Forests to different projects across the country.

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