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February 29th, 2012:

China orders more accurate air-quality measure

Bangkok Post – 29 Feb 2012

China’s cabinet ordered on Wednesday new air-quality standards to measure the most dangerous form of particulate matter, following a public outcry over worsening air pollution.

A couple look across the Hong Kong skyline shrouded by smog, 2011. China’s cabinet ordered new air-quality standards to measure the most dangerous form of particulate matter, following a public outcry over worsening air pollution.

The State Council told 31 major regional capitals including Beijing and Shanghai to begin monitoring PM2.5 particulate, or fine particles measuring 2.5 microns in diameter, this year, the cabinet said on its website.

The new measure — which had been demanded by environmental campaigners — would be compulsory for 113 more cities in 2013, it said.

Authorities came under huge pressure to change the system last year after local governments routinely reported “slight pollution” when thick smog blanketed whole regions.

The new system could give a more accurate reflection of the true nature of pollution in China, activists say.

But the cabinet did not publish the indices on how the readings of the new standards would be interpreted. It also did not say when this year Beijing and Shanghai would adopt the new measure.

The state-run China Daily reported that if PM2.5 were used as China’s main standard, only 20 percent of Chinese cities would be rated as having satisfactory air quality, against the current 80 percent.

Most Chinese cities now base their air-quality information on particles of 10 micrometers or larger, known as PM10, and do not take into account the smaller particulates that experts say are most harmful to human health.

“Our nation’s pollution emissions are rather large, the air pollution problem in some regions remains prominent and the state of air pollution serious,” the cabinet said when announcing the new standard.

“We need more determination, higher standards and stronger measures to fully strengthen overall air pollution prevention and advance continued improvements in air quality.”

The meeting also called for the removal of outdated and polluting industrial technology, as well as pollution control improvements in major industries such as energy, steel, building materials and chemicals.

A doubling of coal consumption over the last decade and booming auto sales that have made China the world’s biggest car market have made air quality in China among the worst in the world, according to international organisations such as the United Nations.

Wang Qiuxia, an air pollution expert with Chinese group GreenBeagle, said last month that adopting new air-quality standards would not have an immediate impact on pollution.

“According to some assessments it will take 20 years before we see an improvement in Beijing’s air quality, provided that proper measures are adopted,” Wang told AFP.

a message for Donald Tsang and Henry Tang

29 Feb 2012

Above suspicion

Grenville Cross says that, as a government minister and prosecutor, the secretary for justice must be open about his decisions to bring to court – or not – cases involving top officials. Otherwise, he risks damaging the system

Injustice anywhere,” said Martin Luther King, “is a threat to justice everywhere.” In Hong Kong, prosecutions are not controlled by an independent director of public prosecutions, as in many major common law jurisdictions, but by the secretary for justice, a government minister appointed by the central authorities on the recommendation of the chief executive.

When the secretary for justice, Wong Yan-lung, was urged last year to follow the example of the attorney general of England and Wales, and withdraw from involvement in public prosecutions, he declined to do so, a decision that has now come back to haunt him.

The allegations of impropriety currently swirling around Chief Executive Donald Tsang Yam-kuen, which some legislators have now referred to the Independent Commission Against Corruption, place the secretary for justice in an invidious position. Since he reports to the chief executive, and acts as his legal adviser, his ability to discharge his prosecutorial functions in relation to any ICAC investigation is wholly compromised. Real problems of perception have now arisen in a series of cases, fuelled by the insistence of the secretary on wearing two hats, one as minister and one as prosecutor.

Although it was revealed last year that at least two of the secretary’s fellow ministers had allegedly allowed illegal structures to exist on their properties, which is an offence punishable with imprisonment, no one was prosecuted. The education minister, Michael Suen Ming-yeung, even apologised for having failed to remove an unauthorised extension on the ground floor of his home in Happy Valley for five years, and for having ignored a demolition notice issued in 2006 by the department for which he himself was then responsible.

However, no clear reasons were ever provided to the public, by the secretary for justice or anyone else, as to why these ministers all escaped prosecution. This, inevitably, fanned suspicions of cronyism. Recent events have only compounded the situation, and demonstrated, yet again, the need for an independent director of public prosecutions.

The news that chief executive hopeful Henry Tang Yin-yen and his wife, Lisa Kuo Yu-chin, are being investigated by the Buildings Department over an allegedly illegal basement at their property in Kowloon Tong, once again places the spotlight on the secretary for justice. His department will, at some point, need to decide whether to prosecute or not.

If, once again, no prosecution is instituted despite the evidence, and no satisfactory reasons are given for the decision, some people might despair at the state of local justice. All, however, may not be lost, as the law provides the public with some means of redress.

An aggrieved citizen may bring a private prosecution against a criminal suspect. This is an ancient right in common law, and it provides a remedy for the individual who wishes to see the law enforced, as the legislature intended that it should be, save for good reason. This right was invoked, for example, by legislator Emily Lau Wai-hing in 1998, against the director of the Xinhua News Agency, for an alleged failure to comply with a data access request.

The English judge Lord Wilberforce has called the right of private prosecution “a valuable safeguard against inertia or partiality on the part of authority”.

Although the secretary for justice may intervene to stop a private prosecution, he must be on firm ground. Reasons for stopping the case would have to be provided to the private prosecutor and the magistrate. If the grounds were not reasonable, the private prosecutor could challenge the secretary’s intervention in the higher courts by way of a judicial review.

A judicial review is also another means by which a decision of the secretary for justice not to prosecute could be challenged. Although this remedy is only rarely granted, it would be open to a citizen to argue that the decision contravened established prosecution policy, or that the decision was perverse. If the evidence assembled by the Buildings Department in the Kowloon Tong investigation turns out to be substantial, a court might not find it too difficult to conclude that the secretary for justice’s failure to enforce the law smacks of perversity.

In sensitive cases, involving members or former members of the government, the secretary for justice must be transparent with the public. If, in defiance of international trends, he insists on retaining the control of prosecutions, he must clearly explain his actions. If the public are to have faith in prosecution decisions, they must understand why important suspects are being let off.

As things stand, people with clout are seemingly able to flout the law with impunity, and this can no longer be tolerated.

If the secretary for justice does not account satisfactorily for prosecution decisions, this could gravely damage the image of the criminal justice system, which would be an unfortunate legacy for his successor.

Grenville Cross SC, an honorary professor of law at the University of Hong Kong, is the vice-chairman of the senate of the International Association of Prosecutors