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“People suing officials” may promoteadministrative rule of law, which includes environmental administration and ishelpful for administrations to better make environmental information known tothe public so that law can be practiced and profits can be protected as well.
Reporter:Yan Yixin
Reporter: The environment is a globalissue. What characteristics do international treaties and agreements have onthis issue?
ZhuShudi: International environmental treaty is very different from internationaltrade treaty in that it pursues international public interests, while tradetreaty pursues an individual member’s own profit on the basis of followinginternational rules. Take antidumping agreement, anti-subsidy agreement, intellectualproperty agreement related to trade of WTO for example, if action taken by onecountry may directly influence other countries’ profit, for instance, Chinaexports products to America, and America puts forward antidumping and anti-subsidyinvestigations, and if the result is that there exist dumping and subsidiesthey have something to do with substantial damage or threat on same kind ofproduct in America, it can increase custom duty. Partiesof pacts care more about their private interests, while internationalenvironmental treaty requires participants to mutually pursue improvement ofglobal environment without restriction of nationality, yet it may needparticipants to pay certain cost, economic cost perhaps or change of lifestyle,and it is why America may not be willing to practice international treaty whichis good for global environment, for example, the Bush government announced toquit Kyoto Protocol on March, 2001, and its greenhouse gas emission in 2010increases 3.2%. Canada also announces to quit Kyoto Protocol on December, 2011.
Reporter: You just mentioned that theprocess of coordinating mutual profit may involve other profits includingeconomy?
ZhuShudi: That’s right. Environmental problem is a very complex one involvingeconomy, cultural tradition, life style, etc. We can only do from legalperspective, especially from administrative legal perspective, to first promoteopenness of governmental environment information, and thus enhance publicparticipation in this field, restrict power of administrative body and try toprotect citizens’ environment right through diverse mechanisms.
Reporter: Do we need NGO or internationalsupervision to guarantee and promote governmental environment informationopenness?
ZhuShudi: We do need the public, especially pressure of public opinion for supervision.Some countries and regions have already developed ENGO(Environmental Non-governmentOrganization). Nowadays, we have international organizations and manyinternational treaties as well. However, except organizations such as the WTOwhich have forceful restriction, many other international organizations do nothave very strong restriction force, and therefore their pacts are relativelysoft. On environmental issue, even WTO has not reached agreement, which may berelated to leading powers, especially America, the big power causing manyenvironmental problems. There are bilateral, multilateral, and internationalorganizational pacts, and people who make great efforts to promote public goodalso work to improve environment, and it should be better to have internationalrestriction.
Reporter: Many international pacts are softand do not have enough restriction, then what do you think of national law’srestriction power and practicability?
Zhu Shudi: There is a layered structure inChina’s legal system. The result is that laws are narrowly defined by NPC orSCNPC, administrative regulations, regulations and other legal files. China hasalready completed its pyramid structure of government -information-law andbasic system of general evaluation, yet there are still problems. I havementioned in my research report that from legislation perspective, basicproblems should follow norms and basic principle of good law, which is toreflect objective regularity from content, to be scientific in form, and to bejust. On such a foundation, we can carry out unified governmental environmentinformation openness regulation through National Environmental ProtectionAdministration, and in this way, the extent of regularity and standardizationwill be very high, and thus be more comprehensive and much better than the currentsystem. Legislation of NPC is framework legislation, and the operability isrelatively weaker.
In conclusion on the forum, I put forward aquestion that whether we should use international resources or nativeresources, and what is the relationship between environment and law? My pointis that if we look at the issue with an open view, we can see that environmentalculture and ecological culture issues are both very complex, and rule of law isan important systemic guarantee of them, and we should learn to combineinternational resources with native ones. For example, we should learn advancedenvironmental evaluation mechanisms from foreign countries, and in ancient China,we can also gain wisdom in dealing with relationship between man andenvironment. Additionally, no matter where we stand, we should admit that ruleof law is key to environmental issues because they are not only environmentalissues, but involve economic development, appraisal of local government’spolitical performance, etc., and there is a profit allocation issue. Inenvironment field, public, as social supervision power and law governancepromoter, should allocate profit and control power. In order to guaranteepublic participation, we need guarantee of legal system.
Any lawunder PRC’s legal system has restriction power, and local laws and regulationsmay have stronger practicability than laws drew by NPC.
Reporter: Do you support the saying that “peoplesuing officials improves rule of law” in governmental environment informationopenness?
ZhuShudi: “People suing officials” is a common expression, and its normal name is “administrativelitigation system”. Its most direct function is to solve disputes, and fromindirect angle, it can put laws drew in governmental environment informationopenness field into real practice. If administrative organizations think thatthey do well while interested party don’t think so, there should be an arbiter-- court, the most authoritative judicial inspection body. Courts will inspectadministrative action in environment field according to judicial inspectionpower. “People suing officials” is possible to promoteadministrative legal governance, which includes environmental administrativelegal governance as well, and is helpful for administrations to better makeenvironmental information known to the public so that law can be practiced andprofits can be protected as well.
Reporter: What kind of relationship do youthink is between people and officials, cooperation or competitor?
Zhu Shudi: Both. Normally, privateindividual, enterprises and organizations are weak parties in administrativemanagement. For example, if administrative actions done by environmentalprotection administration all depend on supervision within administration,officials’ shield of one another and self-protection of administration are hardto avoid. If individual or enterprises resort to court for help and pursuelegal protection and remedy, people can gain equal status with officials andcourt is the leading party, and there is surely a relationship of competitor.
However,judge gives verdict as representative of court, and he/she needs to depend onlaw not matter which party wins. Through verdict, law in particular field, forexample environmental protection field can be effectively practiced, and bothparties accept legal education together. More often, defendants win the case,which means that administrative action of officials are justified while someaccusers, individual or enterprise, especially some economic organizations alsotry to maximize profits, and may take action that is harmful to environment andpublic profit. In that case, judge practices legal education to both parties,and people will form administrative cooperation with officials. Some placeseven carry out administrative agreement, for example, an environmentalprotection administration sign agreement with an enterprise, and if theenterprise can achieve a certain amount of emission reduction or well follownational laws and regulations, the administration can give administrative awardto it. The reason for promoting relationship between people and officials firstlies in that judge enables both parties to be sure about their right and dutyin environmental administration legal system, and then to set up preconditionof cooperation for them.
Reporter: You just said that there may be officials’shielding one another, is it a restriction of governmental environmentalinformation openness? Are there any other restrictions?
Zhu Shudi: From citizens’ own angle, theirright to know about environmental issues has not been widely recognized. Manypeople do not know the governmental environment information openness system,and do not know that they have right to let environmental protectiondepartments to release related information. Popularity of law culture is stillinsufficient because of imbalances in our development. Secondly, publicparticipation in environmental protection is not enough. Many people lack suchspirit of doing public good, and thus weaken supervision power to informationopenness of environmental protection departments. People should have strongsense of environmental protection, and we may promote information opennessthrough media in order to form strong pressure of public opinions. Thirdly,from government’s angle, it bears thought that “try not to open” because ofinfluence of the confidentiality tradition. Law is only a large framework, andthere is free discretion within the framework. Influenced by confidentialitytradition, administrations try to narrow scope of openness using freediscretion, which restricts content of information openness.
Also, judicial inspection mechanism is notperfect enough. Though there is certain progress after carry out of judicialexplanation of Administrative Litigation Law, the inspection scope is stillrather narrow for China’s whole judicial inspection mechanism. Court in manycountries with mature law governance will inspect abstract administrativeaction, yet China regulates that court has no right to inspect abstractadministrative action. Apparently, from judicial inspection and administrativelitigation angle, the scope is relatively narrow, yet very often, many illegalactions are resulted from the fact that some red heading documents themselvesdo not accord with host law, and thus cause damage to related person’s profit.Currently, China gives such inspection right to NPC, not to court. Court hasstrict judicial inspection, and should be the last guarantee of social justice,and therefore, narrow scope is another obstacle for governmental environmentinformation openness.
Introduction of Zhu Shudi:
Professor in LawSchool, Fudan University, Fox International Scholar of Yale University, memberof Chinese International Economy Law Society, consulting and evaluating expertin Shanghai’s People’s Congress and municipal government’s administrative law
