Polluter Pays Principle & Its Application under Bangladeshi Legislation
Jesmul Hasan: This paper seeks to analyze the origin and status of Polluter Pays Principle and the application of the principle in national laws of Bangladesh. As Bangladesh is in vulnerable condition for environmental destruction over the year, it is ripe time to take measures for preventing and mitigating such Calamitous situation as well as for promoting and protecting the quality of environment. Meanwhile, domestic environmental laws in every country of the world have got a shape on the basis of different international initiatives. Bangladesh is also trying to adopt such stable and acceptable principles of international environmental laws by enacting and applying national laws. Different policies, laws, and initiatives relating to environment of Bangladesh reflect the enunciation of principles of international environmental laws to attain sustainable development. This paper also attempts to give a brief scenario of the application of Polluter Pays Principle in Bangladesh.
The Polluter Pays Principle (PPP) is one of the fundamental principles of modern environmental policies, both nationally and internationally. In simple terms it means that the cost of pollution abatement should be paid by the polluters and not by the governments. This cost is added by the polluter to the production cost of the goods and is passed on to the consumer. The PPP is considered to be the most efficient economic instrument in modern environmental policies and is used as such in the Organization for Economic Co-operation and Development (OECD) member states. The PPP is included in a number of regional and international agreements on pollution. Its idea however, remained in economic circles since 1920s. In this chapter the history of the PPP will first be traced in the early economic literature; then its formal adoption by the OECD and the European Union (EU) and its gradual development within the two will be discussed. Finally, we can say that the main objective of this Principle is to allocate economic obligations in relation to environmentally damaging activities.
The first mention of the principle at the international level is to be found in the 1972, which was recommended by the OECD Council on Guiding principles concerning international Economic Aspects of Environmental Policies, where it is stated that “the principle to be used for allocating cost of pollution prevention and control measures to encourage relational use of scarce environmental resources and to avoid distortions in international trade and investment is the so-called polluter Pays Principle”. It also gave the definition of PPP that “This principle means that the polluter should bear the expenses of carrying out the measures decided by public authorities to ensure that the environment is in an acceptable state”. The PPP, a generally recognized principle of international environmental law, has been widely accepted as a means of paying for the cost of pollution prevention and control. The principle simply refers that individuals who are responsible for creating pollution, should be made financially responsible for the damage caused to others. It has also been incorporated in principle of Rio de Janeiro Declaration.
Whether a Principle of International Environmental Law is applicable in National Legal System is or not?
There is no constitutional provision regarding the application of international laws in national
Courts of Bangladesh. From the judgment of various cases it can be stated that application of provisions of international law by national court of Bangladesh depends upon the inclusion of principles in municipal laws. In case of clear domestic provision of international law are not applied. In a case, Bangladesh vs Samboon Asavhan, the appellate division of Supreme Court held that it is well settled that where there is municipal law on an international subject the national court’s function is to enforce the municipal law. The article 18A of the constitution of the people’s republic of Bangladesh discussed about the protection and improvement of environment and bio-diversity of Bangladesh. So we can say that it is a principle guideline about the application of the principles of international environmental law in Municipal law.
The application of polluter pays principle under Bangladeshi Legislation
There are many Acts have been adapted in Bangladesh according to the philosophy of the Polluter pays principle. Now we discuss about some laws where the principle is applied.
Ballroom and Soil Management Act, 2010
The section 15 of this Act provides that In any case, in some cases described in section 4 of this Act, any provision, including the prohibition of sand or soil, disobeys any person or institution, or in violation of this Act or any other provision or without the permission of a specially empowered authority to lift sand or soil. When lifted, the executive body of the person or organization (s) or their affiliates, the offender of any person or organization shall be punished with a maximum of two (two) years imprisonment or a minimum fine of 10 lacks Taka. The section 4 of this Act said that the Authority has right to impose any restriction for collecting sand from any place of the country, where there is a probability to harm of that area’s ecosystem and environment. So it is an application of polluter pays principle under Bangladeshi law.
Bangladesh Water Act, 2013
The section 29 of this Act provides that if a person intentionally violates or disobeys any compliance or protection order issued under this Act, he shall, subject to the provisions of sub-section (2), be imprisoned for a maximum period of five (five) years or a maximum of 1 (ten) thousand. The money will be punished with a fine or both and if a person intentionally violates or disobeys a compliance order or security order for the first time, no matter what is in sub-section (1), the executive committee or any officer empowered by it, in accordance with the rules, procedures and limits prescribed by the rules. May impose a fine for the first time by imposing a fine and in the case of a breach or disobedience of the order a second time or thereafter it shall be treated as an offense under sub-section (1). The Executive Committee or any officer empowered by it, shall, after imposing the penalty under sub-section (2), give a reasonable opportunity for the person to be heard by the notice in the manner prescribed by the rules.
Here the word, “fine” shall not include the court-imposed penalty. After reading this section it is clear to us that here the term “a person” is a person who is responsible for water pollution in Bangladesh under the provision of this Act for the purpose of this section. So the application of the polluter pays principle is also still under this Act.
The Bangladesh Water Act, 2013 also discuss about the method of collecting such fine in section 43 of the Act. The section 43 of this Act discuss about the method of collecting money from the person who is convicted. The section said that if any fine or dues payable to a person under this Act are irrevocable, the Executive Committee may, under the provisions of sub-section (2), collect it in the manner prescribed by the Rules.
(2) For the purpose of obtaining any payment under this Act from a person, the Executive Committee may, at any time, for any other law, request any bank authority to freeze a person’s bank account.
After above discussion we can say that it is an expressed application of the polluter pays principle.
Bangladesh Biodiversity Act, 2017
According to the section 41 of the Act we know that if a person undertakes such activities, which are:
(A) Adversely affect or endanger species;
(B) Adversely affect or affect the ecological community’s endemic characteristics of the endangered or endangered ecological community; or
(C) In accordance with the Ramsar Convention, the wetlands may adversely affect or affect the environment and neighborhood properties of the declared area, if so, his action under this Act shall be a crime and hence he shall be punished with a maximum term of five (five) years or a fine not exceeding Taka 10,000,00.
By reading this section we can say that polluter is responsible for any offence under the provision of this Act. So it is an application of polluter pays principle under our Bangladeshi Law.
The Boilers Act, 1923
The section 30 (Penalty for breach of rules) provides that Any regulation or rule made under section 28 or section 29 may provide that a contravention thereof shall be punishable with fine which may extend to one hundred taka.
The section 28 of this Act said that the Boiler Council has right to make any rule for the purpose of protecting local interest. Here the word “local interest” means the local public internet or environmental interest. So we can say that a polluter is responsible for any break of rules or regulations made under this Act.
Bangladesh Environment Conservation Act, 1995
The section 9 of the Act provides that in the case of any act or event or activity or any accident which results in excessive environmental contamination or fears of emission, the person responsible for the emission and the occupant of the emission site or the associated institution may have created environmental pollution.
So it is clear that polluter is highly responsible for such pollution.
The section 6 of this Act provides that no smoke or gas emitting vehicles may be operated for health hazardous or environmentally hazardous or in any other manner, except for the purpose of testing to prevent such smoke or gas emission. Here the “smoke or gas harmful to the environment or environment” means any smoke or any gas that exceeds the standard set by the rules.
For the purpose of sub-section (1), the Director-General or a person authorized by him should inspect any vehicle at any place or stop and immediately inspect it; May seize or inspect the offending vehicles and associated papers or provide necessary instructions for their examination.
On the other hand if any vehicle is examined under sub-section (2) immediately, the report of such examination shall be admissible as evidence in the court. The driver or, in the case, the owner or both persons of the vehicle concerned shall be responsible for the violation of the provisions of sub-section (1) or the direction given under sub-section (2).
So it is also a direct application of polluter pays principle in the Environment Conservation Act, 1995.
Motor Vehicles Ordinance, 1983
In this ordinance the section 150 provides that whoever drives or causes or allows or lets out a motor vehicle for use in any public place, the smoke of which would constitute a health hazard, shall be punishable with fine which may extend to two hundred Taka and any police officer not below the rank of Sub Inspector of Police in uniform authorized in this behalf by the Authority or any Inspector of Motor Vehicles or other persons authorized in this behalf by the Authority may seize and detain such vehicle for such time as may be necessary to ascertain if the smokes constitute a health hazard. That means who is responsible for air pollution; he will be punished with fine.
On the other hand, the section 139 of the said ordinance provided that whoever uses or being the owner or person in charge of motor vehicle fits, causes or allows fitting of any horns or any sound producing devices prohibited by any competent authority having jurisdiction over the area or prohibited under the provision of this Ordinance or any rules or regulations made there under or uses horn or any sound producing device where its use is prohibited shall be punishable with fine which may extend to one hundred Taka. So we can say that the person who commits sound pollution under the meaning of this ordinance he also liable for paying fine. Finally it is also an application of polluter pays principle.
Environment Court Act, 2010
The section 15 of the Environment Court Act 2010 prescribed that to collect the money imposed by the Special Magistrate Court or the Environment Court on the person or institution convicted, to pay the expenditure incurred by the prosecution party in conducting the case or, as a matter of fact, to compensate the victim or organization for the offense committed in the relevant case. The section 16 of this act discuss about the method of collecting the penalty or compensation money from the convicted person or institution.
In the Case named Metro Makers Developers Limited and others Vs Bangladesh Environment Lawyers Association (BELA), 2019(AD)
In this case, Madhumati Model Town project in Bilmalia and Bailarpur Mouzas has declared unlawful and Metro-Makers are directed to restore the wetlands of this two mouzas to its original state within six months from the date of availability of the certified copy of the judgment, failing with RAJUK is directed to undertake the work of restoration of the wetlands and recover the cost of restoration from Metro-Makers and their directors treating the cost as public demand.
In this case, we can see that the honorable Appellate Division exercises the philosophy of the principle of International environmental law, which is known as Polluter Pays Principle. Because in the judgment of this case, the honorable Appellate Division directed the Polluters (Metro Makers) to restore the land in its previous conditions by their own cost. Otherwise RAJUK is directed to restore the wetland and collect the cost of restoration from the polluter Metro-makers. So we can say that, it is a remarkable judgment for implementing the objects of PPP.
Summing up, economic solutions to the problems of externality are to internalize the external costs of pollution. This solution became the basis of the PPP. This is the combined name of the various economic instruments of pollution reduction. However, in economics the emphasis is on the cost of pollution prevention and control measures while, in law the focus is on the damage cost. Adopted by the OECD and the EC and mentioned in a number of regional and international conventions the PPP remains as a principle of environmental policy. After analyzing the Acts we can say that as a signatory country of Rio declaration, Bangladesh has also adopted the theme of the polluter pays principle (PPP) in its municipal Legal system. But it cannot achieve the actual benefit of this principle for reducing environment pollution for lack of implementation.
Jesmul Hasan: Student; Department of Law and Human Rights, University of Asia Pacific.
