Hello, everyone. Now we are into our fifth subsection discussing environmental right, administrative litigation, and regulatory state. I would like you to recall now about what we have been learning. In the first section, we introduce you to the ROC Constitution Bill of Rights. It's very brief, it's very concise. It does not contain many rights. Because of that, in the second section, we invite you to learn about the ways in which we can expand this list of rights through interpretation or through legislation, through in cooperation of international human rights. Then we provide you with third section and fourth section of two examples: one is physical freedom, personal freedom, the other is free speech, freedom of assembly. These examples are listed rights in ROC Constitution. But the distinction between them, one being very elaborate, fundamental freedom of physical protection in Article 8. The other being very concise, very brief, free speech, and freedom of assembly. But in both category of rights, you see courts providing very extensive protections to individuals. In the fifth section, we want to discuss with you how about those unlisted rights, rights that are not recognized in the ROC Constitution, nor they have been supplemented or added through international human rights conventions or through constitutional interpretations. For example, environmental rights. There's no list of environmental rights protection in the ROC Constitution. Over the years, you don't see Constitutional Court of Taiwan interpreting environmental rights through international conventions or through any other mechanisms. How we are going to deal with this kind of rights that is not listed, and that is not supplemented through the previous mechanisms? The ROC Constitution does not guarantee environmental rights, but there are many other constitutions in the world protecting environmental rights. For example, the Constitution of France in the Charter for the Environment of 2004 protecting such rights. In our neighboring countries, Republic of South Korea, Article 35 of their constitution guarantees environmental rights. "All citizens shall have the right to a healthy and pleasant environment. The State and all citizens shall endeavor to protect the environment." Further away, you see Republic of South Africa. The South African Constitution probably is the constitution that protects most extensively environmental rights. It ensures that everyone has the right to a environment that is not harmful to their health or well-being and everyone has a right to have the environment protected for the benefit of the present and future generations through reasonable legislative and other measures. Also, further away in Constitution of Spain, environmental rights is protected. You see all the examples of environmental rights in shy in the constitution but in Taiwan, the ROC Constitution does not guarantee environmental rights as fundamental freedoms of people. The only added in Article 10, paragraph 2 of additional articles of the ROC Constitution says that "Environmental and ecological protection shall be given equal considerations with economic and technological developments." In other words, environmental protection is a kind of interest that would be balanced with other economic and technological developments. It's not the fundamental rights. Environmental rights are not given the weight that is necessary for sustainable environmental developments. There is no environmental right guaranteed in the ROC Constitution. But that does not to say that there's no environmental protection done in Taiwan. Starting in 1980s, many statutory developments has been ongoing in Taiwan. In 1986, you see Enactment of Toxic and Concern Chemical Substance, the Control Act. You see all these basic environmental act. You see the greenhouse gases reduction and managements so a lot of statutory progress has been made. But I would like to invite you to think, given there is no constitutional protection of the environmental act, what are the ways in which we can take to implement environmental rights, to protect the environment through the law, through the constitutional court, through the constitution? Are there ways to do that? If there's no way to do that, then to implement or to argue for those environmental protections. The environmentalists, environmental NGOs will have to be staging all these protests on street. How can they move from street to the court? Can they do that? If you recall, in the earlier section, we discussed interpretation number 445. It was a interpretation, not as a result of political protests, but actually was a result of environmental movement. Those environmentalists and environmental NGOs, they tried to block the waste disposals from one city to another city and they violated the relevant act and was fined. They took their case all the way to the court and then earn the victory of protection of freedom of assembly. Given the fact that environmental rights is not protected under the constitution, are there any other ways that we can protect environmental rights? We can assure environmental rights without constitution, but then we don't need to risk those environmentalists or environmental NGOs on street or in jeopardy. One way to do that again, is through legislation. Beginning 1990s, we see in many environmental statues, there's addition of one very important clause we see, and we call citizen-suit clause. Like for example, in the Air Pollution Control Act, the citizen-suit clause was added and stating that when public and private premises violate the act or relevant orders determined pursuant to the authorization of act and competent authorities at levels are negligent in enforcement, victims or most importantly, public interests groups may notify competent authorities at all levels in writing all details of the negligent enforcement. These are legal language it may sound not familiar to you but if we use plain language, this is to say, if there's any environmental law violation, if there's any pollution, and if the government has not done their job, victims, or environmental NGOs, or public interests group, they can take some actions to do that. Further on, you also see these clauses added in many other acts like Air Pollution Control Act, like the Water Pollution Control Act like the further enactments. With this citizen-suit clauses, environmental groups then, can take their cases to the court if the competent authorities have not done the job to enforce environmental laws, to guarantee environmental protection. But they also face another obstacles, because if they are not the victims, is not their rights being violated. They are just the NGOs, and remind you again, environmental rights is not insured in the constitution. Since it's not their own houses, is not their own lands, is not their own waters being polluted. How come these environmental NGOs can take their case to the court?? Is being also important for the Administrative Litigation Act to revise and to enact this article 9 into it in 1998. Here you can see, even though the matter is unrelated to his or her rights and interests, anyone in the matters unrelated to his or her rights and interests, they can still file a lawsuit with an administrative court based upon the illegal behavior of the administrative body, in order to safeguard the public interests. With this layer in the Administrative Litigation Act and recalling the previous environmental statues, if the government is not doing their job to protect the environment or is not enforcing the law and allowing all the industries to hamper the environment, then if not victims, the NGOs, the environmental groups, they can take these cases to the court. That's one way you can take actions to protect the environment without constitutional guarantee of environmental rights. Also to add on this, is a key decision by the constitutional court in J.Y Interpretation number 469. In this decision, the court has recognized some necessity for their rights are not violated, but they need to assure for other's rights or are assured for public interests. That's often the case in environmental protection. Recall that if it's not your houses, if not your lands, if not your rivers, not your mountains, their pollution is not your business. How come then the NGOs can take these cases to the court? That's through citizens suit clause, that is through the public interests litigation calls in a maturity of litigation Act also through the J.Y. Interpretation number 469. Here, the court states that if the law clearly stipulates that the identified person shall enjoy certain rights or if it grants the identifiable person who satisfy the legal requirements of the right of requests or certain action vis-a-vis administrative body or govern authorities, undoubtedly the purpose of the regulation lies in protection the interests of the individual. That's a clear case. When the law applies to somebody and somebody's interests, then this very somebody and they can litigate to the court for their interests. But, there are many situations where the laws are for public interests, for the environment enjoyed by everyone of us. Here the court for the very first time recognized that even though the laws are inactive for the public welfare or for the benefits of the general public, judging from the overall structure of the law, the applicable party, the intended regulatory effects, and factors of social developments, the laws intend to protect identifiable persons. In that situation, then the persons who claim his interests or her interests have been harmed as a result of the public servant's failure can have the recourse to the law. That was really the basis for environmental statute protecting the general welfare but still, when the lands, the mountains, the rivers, those of public interests are hampered, are harmed, some of the people environmental NGOs, then they can take a recourse to the law. This package of statutory enactments as well as a constitutional interpretation altogether constitute a very important mechanism for environmental rights protection, even though the Constitution does not guarantee environmental rights. Now let us see an important example. In recent years, we see there was this big project development in the Eastern Coastal area of Taiwan, Taitung beautiful bay and there was a litigation in which government planned to build a very fancy hotel on that beautiful beach without consulting to the local residents, without consulting to indigenous peoples who had lived for many, many years in the area. The citizens argues that their interests and their rights were not protected during the process and they argue that the plan to build a hotel along the beach in the area where indigenous peoples resided, in the area when all the residents have concerns should have been informed and the court agree with them. Here you see the victories these people earned through the court decisions that their right to be informed of the project, their right to be participating in the process when the government decide to build anything not just a hotel but anything along that beautiful bay along the area of their residence, they should be part of that. This has been done without constitutional protection of environmental rights. Even though we don't have a constitution protecting the right but through the mechanism of the statutory enactments, public interests clause, citizens who clause, and also constitution recognition of the public interests and location, all of these can generate and render and make possible of the protection of the environmental rights. For further readings, you can see few articles discussing on this important case and also I would like to invite you to reflect further what functions of these citizen suit clauses and what broadened standing to sue, who have been empowering citizens and the environmental NGOs and looking for how will you undertake any actions to implement these statues or these actions further.
