In many common law jurisdictions, such as the UK and Australia, the concept of ‘legal personhood’—whereby businesses and corporations can be subject to not only similar rights, but also similar liabilities, as individuals—is an inherent element of any comprehensive criminal enforcement regime. In contrast, in many code-based jurisdictions the criminal liability of legal personhood is a relatively new concept. For example, France introduced corporate criminal liability in 1994, followed by Italy in 2001, and Spain in 2010.
Against that background, the sweeping revisions to Vietnam’s penal code, approved by the National Assembly in November 2015 and which will become effective on 1 July, are notable, indicating Viet Nam’s strong commitment to protecting its environment.
Vietnam’s new penal code strengthens provisions specifically targeting environmental crime. The code now stipulates that legal entities, as well as individuals, can be prosecuted for a range of environmental crimes including intentionally causing pollution, non-compliance with environmental remediation and protection regulations, and breaching hazardous waste management regulations. Companies can also be found liable for illegal logging and wildlife trade, damage to aquatic resources, causing harm to endangered species, and importing or dispersing foreign species harmful to the environment.
Viet Nam is a country rich in biodiversity, but is also facing rapid economic growth, with a resultant increase in environmental threats. Viet Nam has already experienced a number of significant environmental problems, the most devastating often being the result of corporate—rather than specific individual—activity.
The landmark Vedan Case is frequently cited to illustrate the disastrous environmental effects of large-scale industrial operations in Viet Nam. In this case, the food additive producer was found to have been discharging untreated wastewater and sewerage into the Thi Vai River. It had been doing this for over ten years, with the first claim made against the company in 1994, and the most recent investigation into further incidents of pollution occurring in 2008. Vedan was responsible for some 89% of the total pollution in the river, before administrative enforcement action was taken. Although Vedan was required to pay compensation to those impacted by the pollution, criminal action could not be taken against the company, as the penal code at that time did not allow it.
When targeting environmental crime, it is essential that those who are most culpable can be prosecuted and sanctioned. Viet Nam’s criminal enforcement agencies, including the courts, now have the legislative framework to ensure this is the case, by imposing a range of penalties against legal entities for environmental crimes. These are in addition to the usual monetary fines and can include temporary or permanent shutdowns of the company’s operations, restrictions on its access to funds, and court-ordered remediation measures.
ADB has been helping the Ministry of Justice of Viet Nam with the penal code amendment process, and now the implementation of the amended code through ADB’s Law and Policy Reform Program, which aims to help developing countries in Asia build the legal systems needed for sustainable development – including protecting the environment.
As part of that, ADB has co-hosted workshops with the Ministry of Justice (the most recent was held in late March in Hanoi) for the purpose of building understanding of the implications of the new code across environmental ministries, enforcement officials and those tasked with drafting guiding regulations as well as legislative refinements.
Participants at the workshops, including prosecutors, court officials, police officers, NGOs, ministerial officials and international environmental criminal law experts, focused on topics such as criminal sentencing of legal entities (specifically, effective remedies for environmental crime), and commencing criminal proceedings against legal entities, including investigative processes and the role of special rules of procedure or prosecution guidelines. These are ongoing topics of discussion in jurisdictions where more established environmental enforcement regimes are in operation, as well as in countries where there remain significant challenges to the environmental rule of law.
In approving the new penal code of 2015, Viet Nam’s actions show the growing momentum across Asia in tackling environmental challenges and protecting biodiversity.