AN ASSIGNMENT ON “JUDICIAL ACTIVISM IN THE ARENA OF ENVIRONMENTAL LAW OF BANGLADESH” Content… TopicPage no. 1. Prologue 1 2. Judicial Activism 3 3. Judicial Restraint 8 4. Difference between Judicial Activism & Judicial Restraint 9 5. General Development and Environment Context of Bangladesh12 6. Major Environmental Issues Facing Bangladesh 14 7. Environmental Law in the Legal Regime of Bangladesh 15 8. Development of Judicial Activism in the Environmental Regime & the ECA 16 9. Administration of Environmental Justice: The Court Cases23 10. Environmental Nuisance should be Mitigated 24 1. Right to Environment 24 12. Access to Justice: Opening up the Horizon of Public Interest Litigation (PIL) 25 13. Right to Participation 25 14. Suo motu Rule against Grabbing Land of Public Garden 26 15. Protecting River from Encroachment 26 16. Checking Industrial Pollution 27 17. Vehicular Pollution to be Reduced 28 18. Judicial Decisions in the Issue of Environment of Bangladesh 29 19. Epilogue 91 Prologue:
The issue of environment pollution has become a burning one with the increase of global warming throughout the whole world especially in Bangladesh. The Supreme Courts of different countries are coming forward to meet this issue at the frequent insistence of the environmentalist organizations which are very watchful upon environmental disaster. Though natural calamities cannot be resisted, man-made disasters can be checked to judicial activism i. e. judicial enforcement. With the growing rate of environmental pollution in Bangladesh, judicial activism in the arena of environmental law has been getting stronger here.
Before the introduction of the Public Interest Litigation (PIL), there didn’t have any direct access to the court for enforcing environmental issues, but after the introduction of the PIL, environmental issues can directly be settled by the courts. The United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro from 3 to 14 June 1992 recognized the entitlement of human beings to a healthy and productive life in harmony with nature[1]. The threshold of the Rio Declaration was the recognition of right to evelopment[2] and more importantly sustainable development. With the adoption of Rio, the global community committed to integrate environmental issues into mainstream economic and social policy[3] and reduce and eliminate unsustainable patters of production and consumption[4]. Commitments recorded in the Rio declaration call for legal and judicial activism. When commitment for sustainable development suffers judicial review can be sought on the basis of the Rio principles of ‘common but differentiated responsibilities’[5], ‘polluters pay’[6], ‘precautionary approach’[7] and ‘EIA’[8].
While the Rio declaration in Principle 11 requires the states to enact effective environmental legislation and standards, access to judicial and administrative review process becomes relevant[9] to uphold people’s rights that such laws would endure. Right to participation and access to environmental decision making process[10] need express legal recognition that the judiciary can safeguard in appropriate instance. The post-Rio developments in the legal and judicial area of Bangladesh have showed respect to the Rio commitments and also the framework of Agenda-21 that requires protection of fragile eco-system and resources.
This paper would highlight on the legal and judicial activism in Bangladesh that have contributed in promoting sustainable development and environmental management as pledged by the global community in various international conventions, treaties and protocols. Judicial Activism: Judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law. Judicial restraint is sometimes used as an antonym of judicial activism.
The term may have more specific meaning in certain political contexts. Concerns of judicial activism are closely tied to constitutional interpretation, statutory construction, and separation of powers. Definition Judicial activism refers to “a philosophy of judicial decision-making whereby judges allow their personal views about public policy among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent. ”[11] If to resolve the dispute, the Court must create a new rule or modify an old one that is law creation. Judges defending themselves acquisitions of judicial activism sometimes say they don’t make law, they only apply it. It is true that in our system, judges are not supposed to and generally don’t make new law with the same freedom that legislatures can and do; they are, in Oliver Wendell Holmes’s phrase, ‘confined from molar to molecular motions. ’ The qualification is important, but the fact remains that judges make, and do not just find and apply law. ”[12] Judicial activism” is frequently used in political debate without a clear definition, which has created some confusion over its precise meaning. Bradley Canon posited six dimensions along which judge courts may be perceived as activist are:[13] • Majoritarianism— This dimension takes into account the degree to which policies adopted through the democratic process are judicially overturned. • Interpretive stability— This dimension takes into account the degree to which court decisions alter earlier decisions, doctrines, or constitutional interpretations. Interpretive fidelity— This dimension takes into account the degree to which constitutional provisions are interpreted contrary to the clear intentions of their drafters, or the clear implications of the language used in the provision. • Substance/democratic process— This dimension takes into account the degree to which judicial decisions make substantive policy, as opposed to acting to preserve the democratic political process. • Specificity of policy— This dimension takes into account the degree to which a judicial decision establishes policy itself, as opposed to leaving discretion to other agencies. Availability of an alternate policymaker— This dimension takes into account the degree to which a judicial decision supersedes or inhibits serious consideration of the same problem by other government agencies. Origins Arthur Schlesinger Jr. introduced the term “judicial activism” to the public in a January 1947 Fortune magazine article titled “The Supreme Court: 1947. “[14] According to Keenan Kmiec, in a 2004 article in California Law Review: Schlesinger’s article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the “Judicial Activists” and Justices Frankfurter, Jackson, and Burton as the “Champions of Self Restraint. ” Justice Reed and Chief Justice Vinson comprised a middle group. ”[15] Debate Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy. 16] They argue that an unelected or elected judicial branch has no legitimate grounds to overrule policy choices of duly elected or appointed representatives, in the absence of a real conflict with the constitution. [citation needed] In some instances, government regulation by appointed officers in government agencies are overturned by elected judges. Defenders of judicial prerogatives say that many cases of so called “judicial activism” merely exemplify judicial review, and that courts must uphold existing laws and strike down any statute that violates a superseding law.
For example, ruling a statute is unconstitutional because it conflicts with the Constitution of a jurisdiction. However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges presently say it should be. Defenders counterclaim that indeed this is precisely what the role of the judiciary is, namely to interpret the law. Detractors argue that the discretion of judges must be limited e. g. by the intentions of lawmakers and appointed or elected government officers, or else any group of people ngaged in any behavior could become a judicially protected minority, and any law could be subverted by the predilections of elected or appointed judges. Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i. e. there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. 17] Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down, that the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since corporations and the wealthy are unable to dictate their version of constitutional interpretation with threat of stopping political donations. Examples The following have been cited as examples of judicial activism: • Mercein v. People – 1840 Connecticut transfers absolute sovereignty over children from parents to the State • Dred Scott v.
Sandford – 1857 Supreme court ruling that ruled that people of African descent imported into the United States and held as slaves, or their descendants—whether or not they were slaves—were not protected by the Constitution and could never be citizens of the United States • Plessy v. Ferguson – 1896 Supreme Court ruling declaring racial segregation as constitutional • Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of public schools • Griswold v. Connecticut – 1965 Supreme Court ruling striking down a Connecticut ban on contraception for unmarried individuals • Loving v. Virginia – 1967 Supreme Court ruling striking down Virginia’s ban on interracial marriage • Roe v. Wade – 1973 Supreme Court ruling stablishing a constitutional right to abortion • Bowers v. Hardwick – 1986 Supreme Court ruling upholding the constitutionality of Georgia’s sodomy law. • Bush v. Gore – 2000 Supreme Court ruling that resolved the 2000 presidential election in favor of George W. Bush. • Lawrence v. Texas – 2003 Supreme Court ruling striking down Texas’s criminalization of sodomy • In re Marriage Cases – 2008 California Supreme Court ruling establishing a constitutional right to gay marriage • Citizens United v. Federal Election Commission – 2010 Supreme Court decision overturning Congressionally enacted limitations on corporate political spending[18]
Judicial Restraint: Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. [19] It is sometimes regarded as the opposite of judicial activism. In deciding questions of constitutional law, judicially-restrained jurists go to great lengths to defer to the legislature. Judicial restraint requires the judge to uphold a law whenever possible. Former Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, is generally seen as the “model of judicial restraint. “[20]
Judicially-restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges. When the late Chief Justice Rehnquist overturned some of the precedents of the Warren Court, Time Magazine said he was not following the theory of judicial restraint. Difference between Judicial Activism & Judicial Restraint: Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices’ interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life, and thus whose decisions shape the lives of “We the people” for a long time to come.
Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interprets the texts of the Constitution and the laws in order to serve the judges’ own visions regarding the needs of contemporary society. Judicial activism believes that judges assume a role as independent policy makers or independent “trustees” on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar opposite of judicial restraint. Judicial restraint refers to the doctrine that judges’ own philosophies or policy preferences should not be injected into the law and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions such as Congress, the President and state legislatures.
This view is based on the concept that judges have no popular mandate to act as policy makers and should defer to the decisions of the elected “political” branches of the Federal government and of the states in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states. Marbury v. Madison, one of the first US Supreme Court cases asserting the power of judicial review, is an effective argument for this power; however, it lacks direct textual basis for the decision. John Marshall managed to get away with this deficiency because of the silence on many issues and the vague wording of the Constitution.
Marshall was also the first to interpret the Constitution loosely, also known as judicial activism. During his term as Supreme Court Chief Justice, Marshall was also successful in loose constructionism through other landmark Supreme Court cases such as Gibbons v. Ogden (“Emancipation Proclamation” of commerce), and McCulloch v. Maryland (whose decision stated that the states cannot tax a federal bank). These landmark decisions were the basis and the precedent for future Supreme Court cases, and had also provided a means through which the Supreme Court can question the law and even possibly change different facets of life affecting the present and future of “We the people. ”
Liberals and Democrats tend to favor judicial activism as it opens new doors to interpretation and experimentation. However, those that favor judicial restraint on the other hand, and thus favor the status quo and the strict construction of the Constitution are conservatives and Republicans. Two landmark Supreme Court decisions that strictly interpreted the Constitution for its literal meaning were Dred Scott v. Sanford and Plessy v. Ferguson. In the Dred Scott case, the Supreme Court ruled that African Americans did not have the right to sue for their freedom, since they were seen strictly by the law as property and not even citizens of the United States. As well, in Plessy v.
Ferguson the Court ruled that segregation of public schools was not unconstitutional, even though African Americans were still seen as equal citizens due to the 14th Amendment to the Constitution (“separate but equal”). However, this particular case was then overturned by Brown v. Board of Education, Topeka, Kansas in 1954. The Brown decision, unlike that of Plessy v. Fergusion and Dred Scott v. Sanford expressed judicial activism and ruled racial segregation unconstitutional. Many will protest that the people do not elect the Supreme Court Justices and therefore the Supreme Court should not have the power of judicial activism and change the law of the land.
However, as one critic points out, “No institution in a democratic society could become and remain potent unless it could count on a solid block of public opinion that would rally to it’s side in a pinch. ” However, anticipating the nominees to the Supreme Court most likely to be forwarded to the US Senate for confirmation by President George Walker Bush, since Bush is a conservative, he is most likely to favor the philosophy of judicial restraint. Clearly, the Supreme Court is ultimately responsible to the will of the people, and the future ramifications of said choices may indeed lean toward judicial restraint more often than judicial activism, thus favoring the status quo and earlier precedents set by previous Supreme Court decisions.
By maintaining independence from politics, the Justices avoid the major problems of political parties and party platforms. Furthermore, the Supreme Court’s small size allows the Constitution to speak with a unified voice throughout the country. General Development and Environment Context of Bangladesh: Bangladesh with a total area of 147570 sq. km is home to some 140 million people of which 49 percent are women. The country’s network of 230 rivers runs across 24140 km[21]. Forests comprise 14 percent of the total land area. Eighty percent of the population is rural. One half of the population lives in poverty and one third in extreme poverty.
A further 20 percent of the population are tomorrow’s poor; those who will join the ranks of the poor given the current trends of development and ecological degradation. The agrarian economy of Bangladesh accounts for one-third of the GDP and employs two-thirds of the labour force[22]. The fisheries sector employs about 1. 2 million people[23] while the employment in the forests sector is about 2 percent of the total labour force[24]. Fish still remains the major source of proteins for 60 percent Bangladeshis. Life and livelihoods in Bangladesh, especially for the poor, depends deeply on nature. Any undue interference with water, land, forest, fishery and other environmental resources would inevitably impact the lives of the people of whom 47. percent are income poor and 76. 9 percent capability poor[25]. The relationship of the people of Bangladesh with nature cannot be overemphasized and can be stated from the words of the Secretary General of the UN Mr. Kofi Anan. “The great majority of Bangladeshis live in rural areas, on the frontlines of resources management, natural disaster and environmental awareness. For them the relationship between human beings and the natural world is a daily reality, not an abstract idea. Our biggest challenge in this new century is to take an idea that seems abstract sustainable development and turn it into a daily reality for the entire world’s people. “[26]
Over time, the gradual degradation of resources particularly land, contamination of water, loss of fisheries, traditional species and depletion of forests became visible in Bangladesh with adverse impact on life and livelihood. In the last decade or so, environmentalists in Bangladesh, the state organs and the citizens groups have rightly identified the depletion of environmental resources as a major cause of poverty in the country. There are certain environmental concerns and factors that are the result of activities originating beyond the frontiers of Bangladesh. These include legal questions relating to the use of natural resources like the waters of shared rivers, environmental hazards like the frequent floods, droughts and salinity, global warming, climate change and so on.
The efficacy of the environmental legal system in certain areas is dependent on attitudes of neighboring countries and so cannot be redressed unilaterally. The Constitution of Bangladesh affirms commitments to international laws and principles, and Bangladesh is a signatory to most major international conventions, treaties, and protocols on environment. Major Environmental Issues Facing Bangladesh:[27] A. Regional/Global: • Ecological changes due to share water disputes • Maritime boundary dispute and a weaker regime on marine resources • Greenhouse effect and its consequence on Bangladesh, global warming and climate change • Refugees and migration • Ecological effect caused by trans-boundary acts International trade and environmental regimes such as Trade Related Intellectual Property Rights (TRIPs), General Agreement on Tariff and Trade (GATT), World Trade Organization (WTO), Climate Change Protocols, Convention on Biological Diversity and so on. B. National: • Population and poverty • Degradation of resources (inadequate policies) • Conflict of development with environment; illiteracy vs. ignorance • Pollution of water, air and soil • Destruction of mangrove, tree cover and firewood • Loss of fisheries • Unplanned human settlement • Unplanned urbanization and industrialization • Loss of wildlife • Natural hazards (also to include river erosion) • Contamination of ground water Environmental Law in the Legal Regime of Bangladesh: Sources of Environmental Laws:
The main sources of environmental law are the Constitution, statutory laws and by-laws, customs, traditional perceptions and practices, international conventions, treaties and protocols. An investigation into the statutory laws prevailing in Bangladesh would reveal that there are about 187 laws that deal with or have relevance to environment. The compartmentalized administration of the statutory enactment would place the laws on environment under several heads. These would include, land use and administration, water resources, fisheries, forestry, energy and mineral resources, pollution and conservation, wildlife and domestic animals, displacement, vulnerable groups, relief and rehabilitation, local government, rural and urban planning and protection.
The laws on physical environment do address issues like occupational rights and safety, public safety and dangerous substances, transportation and safety, cultural and natural heritage and so on. The environmental legislation are sectorally compartmentalized especially the substantive and administrative rules. The procedural rules for the Courts to administer these laws would be derived mostly from the same general codes, e. g. , the Civil Procedure Code, 1908, the Criminal Procedure Code, 1989 and the Evidence Act, 1872. Development of Judicial Activism in the Environmental Regime & the ECA: The law that deals specifically with environment is the Environment Conservation Act (ECA), 1995[28].
The Act has come into force since the June 1995 and to some extent has recognized the Rio principles of precaution, polluters’ pay and people’s participation. The ECA has replaced the earlier Environment Pollution Control Ordinance, 1977 and has added new dimension to environment management by making a shift from ‘pollution control’ to ‘environment conservation’. The recent amendment of the Act in 2002 has given the provisions of the law overriding effect over all other laws[29]. According to section 2(d) of the ECA environment shall include water, air, land and physical properties. The inter relationship among and between these components of environment and human and other living beings, plants and micro-organisms are also included in the broader definition of environment.
The ECA has established the Department of Environment (DoE) and has authorized its Director General (DG) to take all such steps as are necessary for the conservation of environment, improvement of environmental standard and control and mitigation of pollution[30]. In line with Section 11 of the Agenda 21 that calls for conservation and management of resources for development, the ECA in Section 5 has authorized the government to declare areas of great ecological importance as Ecologically Critical Area. Such legal authority would allow the government to declare fragile eco systems as critical or protected areas and bring them under special management system. Section 5 of the ECA reads as follows: Declaration of Ecologically Critical Area – (1) If the Government is satisfied that due to degradation of environment the eco-system of any area has reached or is threatened to reach a critical state, the Government may, by notification in the official Gazette, declare such area as ecologically critical area. The Government shall specify, in the notification provided in subsection (1) or in any other separate notification, which of the operations or processes shall be carried out or shall not be initiated in the ecologically critical area. ” Under Section 5, the Ministry of Environment and Forests (MoEF) has already declared 8 areas including one mother fishery (wetland), fragile coral island, part of world’s largest mangrove forest as ecologically critical areas[31] and has brought them under special protective measures.
Such initiative of the Government of Bangladesh strongly supports its commitment expressed under the various CTPs including the Convention in Biological Diversity, 1992 and the Convention on Wetlands of International importance Especially as Waterfowl Habitat, 1971. Most recently, the cabinet on 22 July 2002 has approved the International Convention on Oil Pollution Preparedness Response and Cooperation, 1990 paving the way to protect its territorial water from oil pollution. Section 2(1) of the Act defines ‘wastes’ and authorizes the Government to determine the standard for discharge and emission of waste including radioactive wastes [Section 20(2)(e)]. Hazardous substance has also been defined [Section 2(i)] and the Government has been authorized to lay down rules for environmentally sound management of hazardous substances and toxic wastes.
Although the Government is yet to exercise its rule making powers, these legal developments correspond to the accepted framework of Agenda 21 calling for environmentally sound management of hazardous wastes and substances. At the national frontier, the Government in exercise of its powers under the Agricultural Pesticides Ordinance, 1971[32] has banned the import of ten pesticides for their hazardous impact on vegetation human and animal life[33]. Worth mentioning, Bangladesh has ratified the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, 1989. The country has also signed the recently adopted Stockholm Convention on Persistent Organic Pollutant, 2001 on 23 May 2001. Section 12 of the ECA incorporates the precautionary principle by requiring ndustrial unit or projects to be established after obtaining environmental clearance from the DoE. Any violating unit may be shut down by the DG, DoE. The amended ECA[34] empowers the government to ban products that are harmful to environment and the government, with active participation from the people, has been very successful in banning the production, use and sale of polythene products below 20 macron. The most significant advancements after the enactment of the ECA have been the setting up of quality standard for air, water, noise and soil and the formulation of environmental guidelines to control and mitigate pollution. The setting up of such standards has been done through the Environment Conservation Rules framed in 1997.
The Rules have detailed out the development where environmental impact assessment (EIA) would be necessary. This has made EIA mandatory for specified projects and industries although procedural details of EIA are yet to follow. The Government may think of making the EIA process participatory ensuring access in decision-making process. The ECA has made it an offence to discharge excessive pollutants and causing damage, direct or indirect, to eco-systems. Sections 7 and 9 of the ECA have in effect incorporated the principle of ‘polluters pay’. Under Section 7 the DG shall require any person including companies responsible for pollution to adopt corrective measures and also to pay good the losses caused by such pollution.
In the event of failure by the polluter to prevent emission of excessive discharge the DG shall initiate the needed remedial measures and the expenses incurred shall be recovered from the polluter as public demand[35]. The ECA tends to ensure access to administrative proceedings and also to participation in the decision making process. Section 8 of the ECA allows a person affected or likely to be affected from the pollution or degradation of environment to apply to the DG for remedying the damage or apprehended damage. The DG may adopt any measures including public hearing for setting such grievance. Under the original Act, cognizance of offence by the courts required a written report from the DG. The requirement of report from DG, DoE would have adverse affect on right to justice. Fortunately, the original Act has been amended in a positive fashion.
The requirement of written report although still valid, may be relaxed at the discretion of the judiciary if there appears to be a prima facie case and also failure on part of DoE to take proper initiative. Amended Section 4A of the ECA has required all statutory agencies to render Helpance and services to the DG on his request. Violation of the provisions of the Act has been made an offence and may be visited with a penalty of Taka 10 lakh and/or 10 years of imprisonment[36]. The Act has recently been amended to provide for different punishment for violation of different provisions. For proper implementation of the ECA, it has been proposed to set up environmental courts in the six administrative divisions of the country[37].
The proposed courts would administer the environmental offences under the ECA and also other laws as may be notified by the Government in official Gazette. This revolutionary step aims at ensuring speedy trial and disposal of environmental cases. The Act provides in details the investigation and trial procedure for the Courts comprising of members of the subordinate judiciary. Section 9 of the Act empowers the Environmental Courts to use the fine realized as compensation for the people affected by the environmental offence. The judges for two environmental courts have already been appointed and it is expected that the judicial system will start functioning soon. An amendment to the Forest Act, 1927 in 2000[38] has provided scope for public participation in environmental resource management.
The newly added section 28A has given express legal recognition to the concept of social forestry and has empowered the government to make rules requiring an ‘agreed upon management plan’ for social forestry programmes. The rules are in the process of finalization. Another significant piece of law enacted in 2000 is the Open Space Protection Act, 2000[39]. With proper implementation of the law, the respective authorities can protect the natural water bodies including the flood plains of the urban areas from filing up for the sake of urbanization and development. In addition, legal regime on environment contains provisions recognizing customary rights over forest[40], access to open water fisheries[41] and participation in the development process while finalizing water related schemes[42] and master plan for urban areas[43].
Legal regime provides punishment against pollution of territorial waters[44] and prohibits pollution of air, water and soil from agricultural, fishery, industry, vehicle and other sources[45]. Environmental resources like forest and fishery have been given special status for protection purposes. Administration of Environmental Justice: The Court Cases: On the fact of activism by the civil society, the judiciary in Bangladesh has started responding to cases seeking environmental justice. Judicial activism contributes to proper implementation of environmental laws and allows the vast majority of the backward section access to the justice system.
As a result of progressive interpretation by the judiciary of some constitutional and legal provisions, ‘public interest litigation’ (PIL) and ‘right to environment’ have received express legal recognition. The cases decided by the judiciary have tended to activate the executive, create wider awareness and affected the value system of the administration and the society. In the cases on environment decided so far by the judiciary, directions have been given to the government agencies to perform their statutory functions. All these decided cases have addressed issues on sustainable development, precautionary principle, participation and access and are rather landmark decisions. With increased number of PILs in Bangladesh, it can now be said that the environmentalists and the civil society places confidence in the judiciary n redressing the grievance of the downtrodden and the deprived. In deciding some of the cases the judiciary has endorsed the innovations that justice require in one recent incident, the High Court even intervened and issued suo moto rule to protect a public garden from encroachment. Environmental Nuisance should be Mitigated: Judicial recognition for protection of environment was first recorded by the High Court[46] in a case that challenged nuisance during election campaign. The judiciary disposed of the case on assurance from the Attorney General to take measures against defacing of public and private property in the name of election campaign. Right to Environment:
The judiciary, while deciding on a case involving importation of radiated milk[47] attached broader meaning to the constitutional ‘right to life’ and held “Right to life is not only limited to the protection of life and limbs but extends to the protection of health and strength of the workers, their means of livelihood, enjoyment of pollution-free water and air, bare necessaries of life, facilities for education, development of children, maternity benefit, free movement, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent with human dignity. ” Access to Justice: Opening up the Horizon of Public Interest Litigation (PIL): In an appeal from the judgment of the High Court Division dismissing a writ by a local environmentalist group on ground of locus standi, the Appellate Division of the Supreme Court of Bangladesh in its historic judgment dated 25 July 1996 granted standing to the ground[48].
In allowing the appeal, the judiciary interpreted the constitutional requirement of “aggrieved” in ways beyond the strict traditional concept. The appeal being allowed is a landmark decision in addressing the constitutional knot and riddle that have been prevailing on the threshold question as to who is an “aggrieved person” for last twenty four years history of our Constitution. The decision opened up the horizon of PIL in Bangladesh and since then the judiciary has entertained a good number of cases on environmental grievances. Right to Participation: On application from a local environmental group, the High Court Division (HCD) of the Supreme Court also intervened to judge on the legality of a development project called the Flood Action-Plan-20[49].
The petitioner accused the authorities of violating a number of laws that ensure people’s participation in the decision making process, provide for compensating affected people for all sorts of loss and protecting the national heritage. The Court delivered judgment on 28 August 1997 and observed, “… in implementing the project the respondents (government) cannot with impunity violate the provisions of law”. The Court directed the authorities to execute the work in compliance with the requirements of law that guarantee right to participation and compensations. Suo motu Rule against Grabbing Land of Public Garden: The Court has been active in protecting the environment in specific class action, and it has also given rules, suo motu, questioning blatant violations of the state’s obligations to protect and preserve the environment.
In one such case, the High Court Division (HCD) issued a suo moto rule when, in violation of an earlier order of the Court to maintain status quo, gunned hoodlums attempted to encroach upon 2. 8 acres land of the only public garden of old Dhaka for construction of hotel therein. Protecting River from Encroachment: On application from an environmentalist group[50] seeking judicial intervention to protect the only river flowing through Dhaka from illegal encroachment, the HCD directed the concerned statutory authorities to submit before the Court an action plan setting out definite time frame and measures to be undertaken for removing the encroachers. Following the petition, the government acted to remove the encroachers and the river now stands free from illegal occupation.
Taking from the learning of this case, the government has constituted an inter-ministerial committee to remove illegal occupation from the other rivers of the country. Checking Industrial Pollution: In a recent decision, the HCD gave directions to check indiscriminate pollution of air, water, soil and the environment by 903 industries belonging[51]. These industries were identified polluters by the Ministry of Local Government, Rural Development and Co-operatives (LGRDC). The 14 sectors include Tanneries, Paper and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber and Plastic, Tyre and Tube and Jute.
An official notification of the government directed the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure within three years that appropriate pollution control measures were undertaken by the identified polluting industries. The Notification also required the said authorities to ensure that no new industry could be set up within pollution fighting devices. When no measure was taken even after the lapse of eight years, the above petition was filed. After a lengthy hearing, the Court directed implementation of the directions given in the notification. To ensure implementation of the Court order, it was required from the respondents to report to the Court after six months by furnishing concerned affidavit showing compliance. The Court held it mperative on the part of the DG, DoE to take penal action against such department or persons responsible for not implementing the ECA, 1995. Vehicular Pollution to be Reduced: The HCD, in a recent decision, gave a comprehensive judgment[52] to fight vehicular pollution at different from. The six directives of the Court required the authorities to – • Phase out all two-stroke vehicles from city streets of the Capital by December 2002 • Convert all petrol and diesel-fuelled government vehicles into Compressed Natural Gas (CNG) powered within six months • Enforce the prohibition on use of pneumatic horns within 30 days • Check fitness of vehicles using computerized system with immediate effect Follow international standard of fuel by reducing or eliminating toxic elements • Set up adequate number of CNG filling stations within six months and ensure that all cars imported since July 2001 is fitted with catalytic converter. This petition also has been kept pending for further monitoring. The other pending cases on environment involves preservation up of lakes, flood flow zones and rivers, encroachment over rivers, violation of construction law, pollution from brick fields, environmental hazards of shrimp cultivation, destruction of hills, gas explosion without environmental impact assessment (EIA), compensation for environmental damages and so on.
Judicial Decisions in the Issue of Environment of Bangladesh: The concept of public interest litigation as has emerged into the judicial administration of Bangladesh is yet to mature with the concept of justice guaranteed by the Constitution. This is a crucial concept in a country like ours where 65% of the total populace have no or less access to judiciary although the constitution commits for equality before law, justice, right to life and equal enjoyment of fundamental rights by all citizens. With obvious socio-economic constraints and a long history of feudal past, the realization of legally recognized rights is still subject for movement by various social and pressure groups.
In recent time the movement for enjoyment of rights took a new dimension as the potential of judiciary is being increasingly emphasized by the activists and the courts are dealing with cases seeking relief against administrative anarchy and ignorance. It was interesting to note that the concept of PIL is developing in Bangladesh as a performance of public duty by some citizens groups holding or advocating in support of progressive ideologies. Thus in 1994 a petition was first taken before the High Court by a national non-governmental organization called Bangladesh Environmental Lawyers Association (BELA) on behalf of the people of a locality where a disputed development action was being implemented. The petition was at first rejected by the court on the ground of standing of the organization.
An appeal was preferred from that rejection where the core question was whether groups like BELA with dedicated and sincere record of activism can claim to have acquired sufficient interest to seek judicial redress against anarchy in its own field of action. The question was vital as it was a constitutional requirement under Article 102 that it is only “a person aggrieved” who can file petitions for enforcement of fundamental rights. Being responded by the Supreme Court in the positive this became the turning point in the history of PIL in Bangladesh. BELA that led the movement for opening up the horizon of PIL in Bangladesh has filed the cases noted below: 1. Dr. Mohiuddin Farooque v. Election Commission & others Writ Petition No. 186/1994 (Nuisance during Election Campaign)
The first ever-environmental litigation was filed in 1994 in the form of a Writ Petition in the High Court Division of the Supreme Court of Bangladesh by a group of environmental lawyers called the Bangladesh Environmental Lawyers Association (BELA). It was filed against the four authorities of the Government responsible for the enforcement of various civic rights, and accordingly, the respondent was the State. The election of the four Municipal Corporations of the country, held at the beginning of this year, evidenced gross violation of some legal obligations and, consequently, interfered with the various rights of the people. The unlawful activities created by the election campaign resulted in encroaching on public properties, restricting and depriving the rights to life, property, enjoyment of public resources, etc. of the city dwellers.
The footpaths and other public places were saturated with election camps; incessant use of loudspeakers and other noisy instruments rendered life miserable; the walls of the four major cities of the country where the elections were being held were all covered with election slogans; unscheduled and unregulated processions created serious traffic jams, and so on. Repeated appeals by the Election Commission for showing respect to the laws of the country were virtually ignored. All this anarchy prompted the institution of a petition where the Hon’ble Court issued rule nisi upon the respondents asking them to show cause as to why they should not be directed to comply with the directive issued by the Election Commissioner touching upon the various acts and laws and rules.
The Court also considered the prayer of the petitioner to restrain the Election Commissioner from holding the election till full compliance with the respondents. The rule, however, was disposed of, following assurance from the Attorney General that the Government would take all necessary steps to implement all the directives of the Election Commission. 2. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 891/1994 (Industrial Pollution Case) In 1994 BELA filed this Writ Petition seeking relief against indiscriminate pollution of air, water, soil and the environment by 903 industries of 14 sectors identified as polluters by the Ministry of Local Government, Rural Development and Cooperatives (LGRDC) vide Gazette notification dated 7 August 1986.
The 14 sectors include Tanneries, Paper and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber and Plastic, Tyre and Tube and Jute. The Notification of 7th August 1986 directed the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure within three years that appropriate pollution control measures were undertaken by those industries. The Notification also required the said authorities to ensure that no new industry could be set up without pollution fighting devices. But unfortunately, even after the lapse of eight years when no measure was taken the above Petition was filed.
After seven years since the date of filling of the petition on the 15 July of 2001, the court has directed the Directed General, Department of Environment to implement the decision taken with regard to mitigation of pollution by 903 industries identified as polluters within the time frame of six months from the date of the judgment. The Petitioner pleaded that the ecological system of the country more particularly the air and water including the major rivers (Buriganga, Surma, Karnaphuli and so on) are being severely affected by the identified 903 industries and that no affirmative action has been taken in furtherance of the decisions of the Gazette dated 7th August, 1986.
Rather the number of polluting industries has multiplied as the recent list prepared by the DoE shows that the number of polluting industries have risen up to 1176. The Court earlier issued Rule Nisi to the Respondents including the LGRDC, Ministry of Environment and Forest, Ministry of Industries and Department of Environment to show cause as to why they should be directed to implement the decisions of the Government dated 5 June, 1986 which was published in the official Gazette. After hearing the Petitioner, the Rule has been made absolute today and the DG, DoE has been directed to “Report to this Court after six months by furnishing concerned affidavit showing that compliance of this Order of this Court”. To ensure implementation of the Court irections, the Hon’ble High Court further held that “It will be imperative on the part of the Director General to take penal action against such department for persons who are responsible for not implementing the letter of the Environment Conservation Act, 1995. ” 3. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 300/1995 (Vehicular Pollution Case) This writ petition was filed by BELA seeking appropriate direction upon the Respondents to perform their statutory public duties and functions for controlling environmental pollution created by motor vehicles and to take effective measures to ensure the most appropriate mitigative measures, devices and methods to prevent further aggravation and danger to life and public health.
The petition was filed against 13 Respondents, namely, (1) The Secretary, Ministry of Communications; (2) The Chairman, Bangladesh Road Transport Authority; (3) The Secretary, Ministry of Home Affairs; (4) The Commissioner, Dhaka Metropolitan Police; (5) The Secretary, Ministry of Environment and Forest; (6) The Director General, Department of Environment; (7) The Dhaka City Corporation; (8) The Secretary, Ministry of Health & Family Welfare, (9) The Secretary, Ministry of Commerce, (10) The Secretary, Ministry of Energy and Mineral Resources, (11) Chairman, Bangladesh Petroleum Corporation, (12) The Secretary, Ministry of Industries, and (13) The Bangladesh Standards and Testing Institution. In his submission the petitioner stated that the air pollution from faulty motor vehicles has been universally identified as a major threat to human body and life.
Such pollution in Dhaka City is acute and incompatible with the conditions required for the growth of human life and ecology. The lives of the City dwellers and its environment are endangered and the failures of the respondents in the performance of their statutory and public duties are depriving people of their fundamental rights disturbing the public peace creating public annoyance. He submitted that the lead-laced gas emitted because of the use of leaded petroleum were severely affecting the lungs, liver, brain and the nervous system, resulting to high blood pressure, IQ and memory-retention damage among children and damage to foetuses leading to deformed babies.
The high sulphur content in the petroleum, and hence in the smoke, causes severe damage to the ecology. The main thrust of Dr. Farooque’s submission was that although the right to a safe and healthy environment has not been directly specified in the Constitution as a fundamental right, such a right is inherent and integrated in the “right to life” as enshrined in Article 32 of the Constitution. Hence, the right to a sound environment was also a fundamental right under Article 32 being supported by Article 31 that ensures that no action detrimental to life, body, property could be taken. Therefore, the failures of the Respondents in their duties denied the people of their basic fundamental right.
Upon hearing the Petition, the Court issued a rule nisi upon the Respondent to show cause as to why they should not be directed to take all adequate and effective measures to check pollution caused due to the emissions of hazardous smokes from the motor vehicles and the use of audible signaling devices giving unduly harsh, shrill, loud or alarming noise. The matter was pending for a long time and after a lapse of 7 years, on the 27th March of 2002 the High Court has directed the government to phase out all two stroke vehicles from City Street by December 2002. The court also directed that all petrol and diesel-fuelled government vehicles have to be converted into Compressed Natural Gas (CNG) powered within six months and pneumatic horns being discarded within 30 days. It asked the Bangladesh Road Transport Authority (BRTA) to check fitness of vehicles, using computerized system with immediate effect.
The court also asked the government to ensure international standard of fuel by reducing or eliminating toxic elements. The High Court further directed the government to set up adequate number of CNG filling stations within six months and to ensure that all cars imported since July 2001 be fitted with catalytic converter. The government was also asked to strictly comply with its decision to ban two stroke vehicles of over nine years old. BELA also prayed for ensuring that the exemption of motor cycles from the requirement of certificate of fitness under the Motor Vehicles Ordinance, 1983 be withdrawn immediately which was also directed by the Court.
On behalf of the government BRTA, Dhaka Metropolitan Police, Environment Ministry, Department of Environment, Commerce Ministry and Ministry of energy and mineral resources submitted testimony (affidavit) in opposition before court. The matter is pending for further monitoring. 4. Sharif Nurul Ambia v. Bangladesh & others Writ Petition No. 937/ 1995 (Unlawful Construction) The Petition was filed with legal Helpance from Bangladesh Environmental Lawyers Association (BELA) by Mr. Sharif Nurul Ambia, Joint General Secretary of Jatiya Samajtantric Dal (JSD). The Petition was moved by the Secretary General of BELA, Dr. Mohiuddin Farooque submitting that the DCC has undertaken the construction of the multi-storied building at the site earmarked for public car park in the RAJUK Master Plan unlawfully and without the latter’s approval and hence liable to be demolished.
It was further submitted that the construction was continuing defying DoE’s finding that the said building would create a disruption to the environment of the area and the neighborhood depriving them the right to life, body and healthy environment against hazardous pollution and obstruction to air and light as being endangered by the unauthorized construction by the Respondents. Upon hearing the petitioner, the Court stayed the said construction till disposal of suit. The rule was ultimately disposed of against which an appeal is pending before the Appellate Division. 5. Dr. Mohiuddin Farooque v. Bangladesh and others Civil Appeal No. 24/1995 (Case on Standing) This Appeal arose from the judgment of the High Court Division dismissing a writ stating that BELA had no right to sue on behalf of the people of Tangail where the Flood Action Plan-20 was being implemented. On Appeal, the Appellate Division granted standing to BELA on 25th July 1996.
The main thrust of the appeal was to get a judicial verdict as to whether a person or group of persons could be “aggrieved” in ways beyond the strict traditional concept, which are now emerging in many legal systems, like suits by evidently public-spirited persons or bodies having proven dedication. The appeal being allowed is a landmark decision in addressing the Constitutional knot and riddle that have been prevailing on the threshold question as to who is an “aggrieved person” for last twenty four years history of our constitution. 6. Dr. Mohiuddin Farooque v. Bangladesh & others (Writ Petition No. 998/94) Sekandar Ali Mondol v. Bangladesh and others (Writ Petition No. 1576/1994) (Challenging Flood Action Plan-20) In 1994, a Petition was filed by BELA challenging the implementation of Flood Action Plan-20 in Tangail.
The Petition, first rejected by Court on the ground of Standing of the Petitioner was subsequently sent for hearing on merit to the High Court after the Appellate Division granted standing (Bangladesh Legal Decisions, (BLD) 1997 Appellate Division (AD), pg. 1). In the petition, the authorities were accused of violating a number of laws that provide for compensating affected people for all sorts of loss and protecting the national heritage. The Court delivered Judgment on 28 August ’97 and observed that “… in implementing the project the respondents cannot with impunity violate the provisions of law. We are of the view that the FAP-20 project work should be executed in complying with the requirements of law. ” 7. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 948/1997 (Uttara Lake Fill-up)
A division Bench of the High Court Division issued an injunction of the filling up of Uttara Lake for housing purposes. The injunction was issued on an application of Dr. Mohiuddin Farooque, Secretary General, BELA upon the Secretary, Ministry of Housing and Public Works, Chairman, Rajdhani Unnayan Kartripakhya (RAJUK) and DG, DoE. The petition was filed on an appeal from the local residents of Uttara, who accused RAJUK of creating an environmental hazard in the area by filling up part of the lake in violation of the original Master Plan of Uttara. The injunction would remain effective till disposal of the case. Upon final hearing of the petition the Hon’ble Court on presided over Mr. Justice Md. Imman Ali and Mr.
Justice Shamin Hasnain on 17 February, 2004 discharged the rule without any order as to cost. After gating aforesaid judgement BELA filed Civil Miscellaneous Petition 84 of 2004 and Civil Petition for Leave to Appeal 564 of 2004 before the appellate division upon hearing the petitioner the Hon’ble Appellate Division granted prayer Leave. Pending hearing of the rule, parties are directed to maintain status quo. 8. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 1252/1997 (Unregulated Operation of Brick Field) The indiscriminate operation of 19 brickfields in Senbag of Noakhali District in violation of applicable legal provisions and circular was brought to the notice of the High Court through the above petition.
The petition filed by BELA on behalf of a local group called Senbag Thana Pollution Free Environment Committee accused the local administration for being indifferent towards the environmental havoc created by the brick furnaces. The management of the brickfields were not conducting their business with due regard to the legal provisions mandating in favour of sound environment and health state. Moreover, leasing agricultural land to brick fields in violation of existing land management laws and manual resulted in a tremendous pressure on the available stock of agriculture land, as after a given period the lands do not remain fit for agricultural purposes.
Upon hearing the petitioner BELA, the Court issued a Rule Nisi calling upon Secretary, Ministry of Land, Deputy Commissioner, Noakhali and DG, DoE to show cause “as to why the issuance and renewal of licenses permitting operations of 19 brick manufacturing kilns in the Senbag Thana under Noakhali District causing threat to the natural environment and health of the neighbouring residents of the area should not be declared to have been done without any lawful authority and be directed to implement the circular. ” The matter is now pending for hearing. 9. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 6020/1997 (Hill Cutting Case)
The indiscriminate, unlawful and unauthorized cutting and rising of hills within the Chittagong City Corporation and its adjoining areas was brought to judicial notice by BELA through the above petition. The Court on hearing the petitioner, Dr. Mohiuddin Farooque, directed the DG, DoE to submit a report on alleged illegal and indiscriminate cutting of hills, contributing to ecological imbalance and degradation of environment of the city. The Court further ordered that the report should contain the measures taken by the Government to prevent such illegal activities. Subsequent application has been filed under the petition. The matter is now pending for hearing. 10. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 6105/1997 (Gas Explosion at Magurchara)
The above petition was against the Secretary, Ministry of Energy and Mineral Resources, Chairman, Bangladesh Oil, Gas and Mineral Development Corporation (PETROBANGLA), DG, DoE and Occidental of Bangladesh Limited for their negligence in preventing the fire that engulfed the Magurchhara Gas Field and the adjoining areas, while the Occidental of Bangladesh Ltd. , a reputed foreign oil company, was carrying on with their regular excavation. The statutory authorities permitted such risky operation without proper EIA, as required by the ECA. BELA, the petitioner, also blamed the respondents for failing to combat the after effects of the fire, as reports suggest that it took quite a long time before normal life was restored in the affected areas. A show cause notice was issued upon the respondents to clarify their own position. With the filing of subsequent petition the petition is pending for hearing. 11. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 7422/1997 (Gulshan Lake Fill-up)
A division bench of the High Court Division issued a Rule in a petition filed in 1997 against implementation of an agreement called the “Banani, Gulshan, Baridhara Lake Development Project Agreement” signed between RAJUK and Indus Valley Investment Pvt. Ltd. to undertake a huge construction in the said areas, defying and violating the constitutional and legal requirements. The Court directed them to show cause as to why “the agreement and the subsequent agreements to lease out a total area of 220 acres of public land should not be declared to have been entered/undertaken without lawful authority in violation of law and the constitution against public interest and as such be declared null and void and of no legal effect. ” The Government subsequently cancelled the project. 12. Nijera Kori v. Bangladesh & others Writ Petition No. 1162/1998 (Allotment of Land for Shrimp Cultivation)
The petition was filed against allotment of Government owned Khas Land to Shrimp Cultivators in Sudharam, P. S. of Noakhali District in contravention of the provision of the Land Management Manual, 1991 and Articles 15, 19, 31 and 32 of the Constitution depriving thereby the landless people. The Court on two occasions restrained the respondents from disturbing the peaceful possession of the landless families. The matter is now pending for hearing. 13. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 2482/1999 (Gulshan Lake) The unlawful filling up of Gulshan, Banani, Baridhara Lake for creating housing plots was challenged by another writ petition No. 482 of 1998 filed by BELA. Following the Petition a division bench of the High Court directed RAJUK to take measures for suspending all construction and/ or filling up of the water body and lakeside areas of Gulshan, Banani and Baridhara Model Towns in specific areas. The Court also issued a rule nisi upon the Ministry of Works and RAJUK to show cause as to why the allotment of on the lake water lake-side area in Gulshan, Banani, Baridhara Town shall not be declared to have been undertaken in violation of the Town Improvement Act, 1953, against public interest and why they should not be directed to restore public property in a manner best suited to public interest.
The Court further directed RAJUK to prepare and submit before it a detailed and complete statement regarding allotment of plots and filling up of the lake water and/or lakeside area in violation of the approved Master and Lay Out plan rendering thereby water bodies of the Lake into private properties along with list of names and address of persons in whose favor such allotment have been made and those encroachment upon the lake water and or lakeside. The matter is pending for hearing. 14. Biplob Kumar Roy v. Bangladesh and others Writ Petition No. 1840 of 1999 (Nabaganga River) A Rule Nisi was issued upon the Deputy Commissioner, Narail District for unlawfully leasing out part of the River Nabogonga having its flow through Rajpur to Jaipur Ghat. The rule came as a result of the Petition No. 840 of 1999 filed by BELA and one member of the l
