Environmental constitutionalism in Bangladesh : Legal Foundations for climate protection
Introduction
Bangladesh is one of the countries most affected by climate change and environmental degradation. To face these challenges, the Constitution includes environmental protection as a national duty through Article 18A, alongside the fundamental rights to life and protection of law in Articles 31 and 32. Over the years, the courts have played a key role in using these constitutional rights to protect nature and promote climate justice. This article discusses concept of environment constitutionalism and how environmental protection has become a part of Bangladesh’s constitutional law and judiciary roles to protect environment as well as fundamental roles.
The Concept of Environment Constitutionalism
Environment Constitutionalism acknowledge that the environment is a subject of law, requires legal protection. It involves incorporation of environmental rights and duties in constitutional provisions and judicial enforcement of these provisions for the purpose ensure environmental justice and as well as protection of environment. It may includes substantive environmental rights such as the right to clean and healthy environment also procedural rights for example, access to environment related information, public participation, judicial remedies and so on. Environment protection through Constitution is well-known. Many countries includes environmental provisions, clauses into their constitution or supreme legal document.
Bangladesh also adopt environment constitutionalism, insert the provision directly or indirectly related to protection of environment which emphasizes accountability, sustainability and environmental justice. As the country faces every year floods, river erosion, salinity intrusion which affecting poor, marginal ,indigenous communities hence adopt environmental constitutionalism and judicial enforcement of these rights, provide judicial remedies not only protecting the environment but ensuring fair access to legal remedies.
Legal Foundations in the constitution of Bangladesh
The Constitution of the People’s Republic of Bangladesh contains provisions protection of environment. Part 2 of our constitution deals with Fundamental principle and Part 3 deals with Fundamental Rights.
The Fundamental Principles of State Policy are the guiding principles laid down in Part II (Articles 8–25) of the Constitution of Bangladesh. Between Fundamental principles and Fundamental Rights, Fundamental principles are not judicially enforceable. That means, one person can’t file a case only base of these provisions.It only give guideline, instructions for policy making, encourage the govt to work for welfare of state. Such as free and compulsory education, public health and morality,equality of opportunity and so on.
On the other hand, In Bangladesh, fundamental rights are protected in Part III (Articles 26–47A) of the Constitution of Bangladesh. These are indispensable for survival irrespective of race, colour, birth, sex, language, believe. These are basic human rights recognized by the state, and the state is bound to provide it all the citizens. In any situation state cant curtail them except if “Emergency” is declared by the president. Obviously, these rights are judicially enforceable, and if there is no effaciaous remedy available, the aggrieved person can seek remedy from the Supreme Court under Article 102 of our constitution. Such as, Equality before law, Right to protection of law, Right to life and personal liberty, Safeguards for arrested or detained persons and so on.
Article 18A, Fundamental principles of State Policy was added to the constitution of Bangladesh in 2011 through the 15th Amendment. It says that,
The State shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, biodiversity, wetlands, forests and wildlife for the present and future citizens.
This was first direct constitutional provision or reference of Bangladesh related to the protection and improvement of environment which reflect national and international obligation to protect , preserve environment from environmental crisis.
Though this provision is fall into the category of Fundamental Principles of State Policy, not enforceable by the court in the way that Fundamental Rights are, it give guidelines to other organ of the state – Legislature and Executive to make and implement laws and policies to keep mind the environment protection goals.Such as deforestation, wildlife, biodiversity loss, pollution, environment degradation or any matter related to protection, preservation of environment. Also court can interpret the provision in broader lense.
This Article recognizes that environment protection is not an option, it is an obligation. Also reflects the principle of “ Intergenerational equity” by the word “ Present and Future Citizens”.
Fundamental Rights of state policy though not directly mention environment protection, but by Article 31,32 it says about environment protection and these are enforceable by the court.
Article 31 states that,
To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen… and in particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
Article 31 guarantees that every person has the right to be protected by the law and to be treated in accordance with law. It also protects individuals from any unlawful action that harms their life, liberty, body, or property. When the environment is polluted or damaged by industrial waste, river pollution, deforestation, hill cutting, environmental degradation, toxic air, or any other way that harms people’s lives, health, and property and the state fails to protect the environment or prevent the harm that violates this constitutional right.
Article 32 states that,
No person shall be deprived of life or personal liberty save in accordance with law.
The judiciary interpreted this provision broadly. “Right to life” mean more than mere existence. It requires that life does not mean only biological survival, rather it recognize everything necessaryfor a dignified and healthy life such as dignity, safety, well-being. It guaranteed that no one can interfere one person’s life and freedom without valid and reasonable ground. A polluted or degraded environmentdirectly threatens people’s health and survival, which violates this right. Therefore, the right to life includes the right to a safe, clean, and healthy environment. This was established by judicial interpretation and precedents.
Public Interest Litigation and Environment Protection
Public Interest Litigation, popularly known as PIL means a legal action where the traditional requirement of “Locus Standi” is relaxed and allow individuals or groups to file a case in the public interest, enforcement of fundamental rights of public at large even if they are not aggrieved person. It is a legal tool, vehicle for promoting justice of broad public concern. Although the constitution does not mention or define PIL, but it was evolved by judiciary through interpretation of Article 44 and 102 of the constitution.
Article 102(1) states that,
The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution.
This means anyone whose fundamental rights have been violated can go to the High Court Division. The person doesn’t always need to be directly affected. This was set by the case of Dr. Mohiuddin Farooque v. Bangladesh [49 DLR (AD) 1, 1997]
In the context of Bangladesh, where the vast majority of people are poor, ignorant, and illiterate, a strict interpretation of ‘aggrieved person’ would result in a denial of justice. Therefore, a liberal interpretation is necessary.
An “aggrieved person” includes any public-spirited individual or organization seeking to enforce fundamental rights of others or of the general public, especially when the affected parties are vulnerable or voiceless. Here, aggrieved person scope is broad. Its not necessary, person must direct aggrieved person, as any aggrieved person can move for High Court for enforcement of fundamental rights, it open the door of PIL.
The court can give directions or orders to any person or authority for the enforcement of any of the fundamental rights addressed by the part III of the constitution. As Article 31 and 32 are a fundamental rights and right to safe, clean environment is a fundamental right established by the court, so people can seek judicial remedy if these rights are violate and court can take step to prevent it.
Landmark cases for protection of Environment
Several judicial decisions of cases have contributed to the protection of environment and development of environmental constitutionalism.
Dr. Mohiuddin Farooque v. Bangladesh (1997) – Right to Life Includes Environmental Protection
Case Citation: 49 DLR (AD) (1997)
Facts: The petitioner, Dr. Mohiuddin Farooque of the Bangladesh Environmental Lawyers Association (BELA), filed a PIL against the government’s plan to construct flood protection embankments under the Flood Action Plan (FAP), alleging it would harm the environment and affect local communities.
Judgment: The Appellate Division of the Supreme Court held that the petitioner had standing to file the case in the public interest. Most significantly, it ruled that the right to life under Article 32 includes the right to a safe and healthy environment.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh (2001) – Hill Cutting Case
Facts: BELA filed a PIL against illegal hill-cutting in Chittagong, which caused landslides, erosion, and severe ecological damage.
Judgment: The High Court Division declared that hill-cutting is illegal and a violation of the Environment Conservation Act, 1995. It held that such degradation infringes upon the fundamental right to life and livelihood of the affected communities.
BELA v. Government of Bangladesh (2009) – River Encroachment and Pollution
Facts: BELA brought a case concerning the pollution and encroachment of rivers, particularly in and around Dhaka, due to unregulated industrial waste and illegal development.
Judgment: The High Court issued directives to the government to:
- Demarcate river boundaries
- Remove illegal encroachments,
- Stop industrial pollution
- Declare rivers as protected areas.
Human Rights and Peace for Bangladesh v. Bangladesh and Others (2019) – Legal Personhood of Rivers
Facts: The case addressed the protection of rivers, particularly the Turag River, which was suffering from illegal encroachment and pollution.
Judgment: The High Court declared that all rivers in Bangladesh have the status of “living persons” with legal rights. The National River Conservation Commission (NRCC) was recognized as the guardian of all rivers, similar to a legal custodian.
BELA v. Ministry of Environment and Forests – Brick Kiln Regulation
Facts: PIL was filed against the proliferation of illegal and unregulated brick kilns contributing to massive air pollution and health hazards.
Judgment: The High Court ordered the government to shut down unauthorized brick kilns and implement stricter regulatory controls.
Mohiuddin Farooque v. Election Commission & others (1994)
Fact :The petition was filed challenging the nuisance and sound population during the campaign for the 1996 general elections.
Judgment :The court ordered the Attorney General to take necessary steps for preventing damages to public and private property in the guise of election campaigning.
Besides, there are other cases which also contributed to the protection of environment and enforcement of this fundamental rights.
For these legal ground for environment protection, enforcement of these fundamental rights, various laws, policies relating to environment, wildlife, brick kilns’, forest, river are adopted. These are:
Bangladesh Environment Conservation Act, 1995
Bangladesh Environment Conservation Rules,1997
Wildlife (Conservation and Security) Act, 2012
The Forest Act,1927
Water Act, 2013
জাতীয় নদী রক্ষা কমিশন আইন, ২০১৩
Brick Manufacturing and Kiln Establishment (Control) Act, 2013
National Environmental Policy, 1992
Besides there are separate court which deals with environmental matters under The Environment Court Act,2010.
These laws contribute to safeguard the environment as well as climate from environmental degradation, ensure the secure of fundamental rights and create awareness among the peoples.
Recommendation
Though Article 18A promote environment conservation, improvement, perseverance, because of need of time now, The Constitution should clearly recognize the right to a clean and healthy environment as a fundamental, enforceable right.
Though Environment Court Act,2010 deals the case of environmental matters, but it has some lackings or limitation. Existing environmental courts need more power, trained judges, and resources to deal effectivelyimplementation of environment related laws and prevent environmental crimes.
Citizens and NGOs should be encouraged and supported to file PILs to protect rivers, forests, and communities affected by pollution and climate impacts.
Laws and policies will make and implementation follow the international treaties such as The Kyoto Protocol, The Montreal Protocol, The convention of Biological Diversity , Rio Declaration, United Nations Framework Convention On Climate Change, Basel Convention and so on align with our constitutional value Article 18A, 31,32, 102 ensuring long-term climate justice and sustainability.
Climate and environmental literacy should be included in school, university, and legal education so that future citizens are more informed and responsible.
Conclusion
Environmental protection is a constitutional duty in Bangladesh, and the right to a clean and healthy environment is closely linked to the right to life. Through Article 18A and court decisions, the country has taken important steps toward climate protection. To ensure a safer future, these rights must be clearly enforced, and stronger actions are needed from both the government and the people.
Writer: Mahmuda Ahmed; Legal Research Intern at Safe Childhood Network and Member of Bangladesh Center for Ocean Law and Policy ( BCLOP).
