Make India Asbestos Free

Make India Asbestos Free
For Asbestos Free India

Journal of Ban Asbestos Network of India (BANI) that works for Asbestos Free India inspired by trade union leader Purnendu Majumadar. Occupational Health India and ToxicsWatch Alliance are its members that includes doctors, researchers and activists. BANI demands criminal liability for companies and medico-legal remedy for victims. It works with trade unions, human rights, environmental, consumer and public health groups. For Details: 1715krishna@gmail.com

Saturday, September 30, 2017

India & BRICS should pay heed to Brazilian Federal Supreme Court’s ban on Asbestos declaring even “controlled use of asbestos” as unconstitutional

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Following the verdict, Brazilian São Paulo state has withdrawn the controlled use of asbestos law for the whole country.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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