On 24 August,
2017, Constitutional Supreme Court of Brazil decided with 8 votes against 2
that the Brazilian state of São Paulo has the right to forbid the production
and selling of white chrysotile asbestos, a carcinogenic mineral fiber. As many
as 10 Brazilian states prohibit use of this mineral fiber because of the
incurable diseases caused by it. India’s Supreme Court and High Courts have
consistently expressed their serious concerns regarding exposure to these
carcinogenic mineral fibers and has asked the central and state governments to
update their laws as per fresh resolution of International Labour Organisation
(ILO), which has sought elimination of future use of white chrysotile asbestos
to safeguard human health. But the governments in India have not complied with
its directions so far.
Following the
verdict, Brazilian São Paulo state has withdrawn the controlled use of asbestos
law for the whole country. Brazilian Supreme Court has already said that the
production and the selling are unconstitutional. The President of the Supreme
Court observed, “In concern of the environment, if any doubts, it must be
prohibited so that the rights for us today and tomorrow won’t be lost for the
ones that come after us.” Indian courts too should adopt this universally
accepted precautionary principle and the inter-generational equity principle to
save the public health of Indians like the Brazilian Court.
It is clear
that the decision with regard to Brazilian São Paulo state has an “important
precedent” because the Court has excluded the law that allowed controlled use
of this hazardous mineral fiber. The law that allowed usage of asbestos has
been deemed moribund.
The Federal
Supreme Court (STF) is the highest level of judicial system in Brazil, which is
responsible for determining the constitutionality of laws. This Court has held
that the extraction, processing, use and marketing of all forms of asbestos,
including white chrysotile asbestos violate the Brazilian Federal Constitution.
Responding to
the verdict, Fernanda Giannasi from Brazilian Association of exposure to
asbestos (ABREA), a renowned leader of global anti- asbestos struggles said,
“There is no more legal support to the controlled use of asbestos in Brazil.
The important decision taken on 24 August means that there are no obstacles for
the states and municipalities to prohibit asbestos. The public entities cannot
give lame excuses for their failure to enact and enforce laws to safeguard
people from exposure to hazardous fibers of asbestos. Now that the
Brazilian Court has decided on the constitutionality of the matter, it is the
prerogative of the Brazilian Parliament to prohibit use of this carcinogenic
fiber.” She said, "The victory at STF is the result of extensive
construction of social movements in defense of workers' health.” Ban
Asbestos Network of India (BANI) has worked with Fernanda Giannasi since her
visit to New Delhi in 2002.
Notably, 10
Brazilian states and more than 35 Brazilian cities have valid laws banning
asbestos. This verdict paves the way for the other cities and states to
prohibit the toxic mineral fiber. No one can cite possibility of “safe and
controlled use” as a ground to continue its usage of asbestos.
The core issue
before the Court was the constitutionality of federal law which allowed use
with restrictions on the exploitation and the use of asbestos in the variety of
chrysotile, it’s adherence to rights to life, health and the environment.
The validity of
state laws and municipal authorities, who had banned white asbestos in their
respective territories while the federal law permitted was also before the
Court which required ascertainment of the distribution of legislative powers
between the federal government, states and municipalities.
The trial was
conducted in two stages. At trial regarding the federal law authorizing the
production and consumption of asbestos, the Court built a majority
pro-banishment, for five (5) votes against 4 (four). Due to the prevention of
two judges who had issued opinions on the cause before taking their seats in
Court, the quorum of 11 (judges) was reduced to only 9 (nine). Thus, it was not
possible to achieve the 6 (Votes) as required by the Constitution for a
declaration on the constitutionality of federal law have general effect and
binding.
A second phase
of the trial undertook to resolve this impasse, to define in practice to
achieve the banning of all forms of asbestos in Brazil. When examining the text
of the state law of São Paulo that banned asbestos on its soil, the Supreme
Court stated, by eight (8) votes against 2 (two), the full acceptance of the
legal force of this measure.
The range of
this pronouncement is not limited to a state. It is applicable for the whole
country because it has assumed a national character. By a vote of 6 judges of
the current composition of the Supreme Court, the validity of the ban approved
in state laws is based precisely on the unconstitutionality of permissible
federal law. As a consequence of a mere formal question to prevent the
participation of a judge in the main proceedings, the unconstitutionality was
not binding, although in practice this is what will happen.
After the
trial, the President of the Court, Justice Carmen Lucia, clarified, through its
press office that the decision effectively overturned the authorization of the
use of white chrysotile asbestos throughout the national territory. During the
trial, the President of the Court recalled that asbestos compromises the future
of coming generations and defended its banishment "By the principle of
precaution, in case of environment, in doubt whether to seal".
Justice Celso
de Mello, dean of the Court said, "The Supreme Court declares the
unconstitutionality of this provision which permitted the chrysotile asbestos,
by an absolute majority, cut off from the universe national law a rule that
permitted, even if through controlled use, the use of asbestos. The use of
asbestos chrysotile is now sealed". Thus, the use of this type of asbestos
is completely sealed in the country.
The lawyer
Roberto Caldas, Mauro MENEZES and lawyers who represented before the
Court the victims of contamination by asbestos, organized around the
Brazilian Association of exposure to asbestos (ABREA) and the National
Association of Attorneys of the work (ANPT) said: "It is ended the great
war by banning of asbestos. Now let's take care of the aftermath: measures of
achievement, service and repair just for victims."For the lawyer Mauro
MENEZES, also advocate the banning of asbestos in the gallery of the STF, the
decision "reaffirms the vocation Brazilian constitutional, to require that
the economic development note social guarantees and environmental
population". Mauro MENEZES concludes, “The situation reveals that the
federal law is moribund, it is in a terminal stage. When the Court declares its
unconstitutionality, this law is no longer efficient in the national judicial
order”.
In the
aftermath of this verdict, the states and to the federal districts are under a
logical and legal compulsion to bring bills for the banishment of asbestos in
the states which have no laws prohibiting the carcinogenic asbestos as yet.
Brazil’s
National Confederation of the Industrial Workers (CNTI) had initiated an action
with the aim to get the law on the prohibition of asbestos in the state of São
Paulo declared as unconstitutional and revoked. The Court did not heed the
request and has endorsed the prohibition of this mineral fiber.
Brazilian Court
found that the asbestos based products are not safe for people’s health and to
the environment, which was in contradiction to the Constitutional provisions.
The recent
estimate is that asbestos is causing 194,000
occupational deaths globally every year. Notably, South Africa
banned asbestos in 2008. Now that Brazilian court’s order has established the
illegitimacy of asbestos use, it is high time BRICS (Brazil Russia, India,
China and South Africa) governments make their present and future citizens safe
from hazards of asbestos fibers.
Taking note of
the grave threats to the public health of people in BRICS (Brazil Russia,
India, China and South Africa) countries, we demand for phase out of asbestos
industry in the country. Global anti-asbestos struggles in general and
Brazilian Association of exposure to asbestos (ABREA) and Ban Asbestos Network
of India (BANI) have been demanding and struggling to get the killer mineral
fiber banned to save citizens, consumers and workers who are dying a painful
death due to exposure to carcinogenic fibers of white chrysotile asbestos
procured from Russia, Brazil, Kazakhstan and China.
For Details: FERNANDA GIANNASI, Brazilian
Association of exposure to asbestos (ABREA), E-MAIL: fer.giannasi@terra.com.br,
Web: www.abrea.org.br
DR GOPAL
KRISHNA, Ban Asbestos Network of India (BANI)-ToxicsWatch Alliance (TWA), Mb:
08227816731, 09818089660, E-mail-1715krishna@gmail.com,
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