Revisiting Enforcement of the Environment Court: A Contextual Analysis
Md. Zakir Hossain
In response to various international conventions, treaties and protocols, Bangladesh has developed new environmental legal regime including environmental governance institutions. Our legal status to protect environment is a little bit better than other countries of the globe. We have constitutionally mandate to protect the nature, rivers, wetlands and natural resources. Bangladesh also is a member & primarily active state of incorporating the UN International Watercourses Convention of 1997. In our Constitution, Article 18A clearly states that “The State shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, bio-diversity, wetlands, forests and wild life for the present and future citizens.”
Agenda 21, a comprehensive action program adopted at the historic Rio Conference of 1992, was designated to integrate the goals of continued economic development and environmental protection. In pursuance of this Agenda, the first Environment Court Act was passed in 2000. However, to meet the challenge of time and to ensure the proper application of environmental laws of Bangladesh effectively, the Environment Court Act, 2000 has been repealed in 2010 and the new Environment Court Act, 2010 has been passed with the object of establishing environmental courts for speedy trial of environmental offences and matters incidental thereto.
The State has enacted a number of laws including Bangladesh Water Act 2013, the Water Resource Plan Act 1992, the National River Protection Commission Act, 2013 and The Environment Conservation Act, 1995 (upgraded in 2010) which have provisions for the protection of the environment, and control and mitigation of environmental pollution. Bangladesh is among the few countries that have a separate court on environment. From 2000, after the enactment of the Environment Court Act, specialized environmental court system has been introduced in the legal system of Bangladesh. In 2010, a fresh Environment Court Act namely Environment Court Act(hereafter ECA), 2010(Act no 56) has been passed.
The Environment Court Act, 2000 opens the door of specialized environmental adjudication system. Under this Act though it was supposed to establish an environment court in each district, only three environment courts and one appellate court were established to try environmental offences and claims. Due to many statutory and practical limitations, the achievements of the courts were negligible. However, the Environment Court Act, 2000 was so extensively replaced by the Environment Court Act, 2010 that it got a new look with an effective adjudication system for protecting, conserving and preserving the environment and promoting the environmental justice. Besides the environment courts, special magistrates courts are given jurisdiction to try environmental offences. Deadline of 180 days have been set for disposal of cases. Alternative Dispute Resolution process is also incorporated in this Act.
The Act of 2000(also same power vested in 2010 Act) also empowered Magistrates of the first class or Metropolitan Magistrates to deal with environmental offences punishable with less than two years imprisonment or taka 10,000 as fine or both. The Act was amended in 2002 to allow the Joint District Judge/s for a Division to act as the judge of an Environment Court in addition to his/her ordinary functions.In 2010, a fresh Environment Court Act has been passed and the Act of 2000 has been repealed. The present Act is aimed to establish one or more Environment Court/s in each district with a Joint District Judge and the said judge shall in addition to his ordinary function dispose of the cases that fall within the jurisdiction of an Environment Court. Like previous Act, the Act of 2010 also provides for the establishment of one or more Special Magistrate Court/s with the Magistrates of the first class or Metropolitan Magistrates in each District to deal with offences punishable with less than 5 (five) years imprisonment or 5 (five) lac taka as fine or both.
According to a report of the daily Samakal (June 05, 2020), now only in Dhaka and Chittagong,there have been workedtwo separate environment courts. In addition to, Sylhet, Barishal, Rangpur and Nilphamari districts have four courts running through In-Charge of other courts. Besides it, the government has no visible step to activate the Special Magistrate Courts for environment. There is opportunity to appoint judicial officers as special magistrate in the Department of Environment (DoE) and other regional offices of DoE to run mobile courts and take instant glaring actions. No Special Magistrate has been appointed yet. In recent times, Rajshahi, Bandorban, Patuakhali districts have been conducted mobile courts by the special magistrates. To conduct mobile courts by the special magistrates, DoE and prosecution should give priority for ensuring speedy and stringent justice against perpetrators.
The ECA 2010 (same in the Act of 2000) provisions have clogged the way of justice getting easily through the environment courts. Designing the environmental courts dependent on the written report of an inspector of the Department of Environment to take cognizance of a cause gives the executive preference over the judiciary. However, the court can directly receive a case from private persons without such prior authorization if the court is satisfied that a person presented a written request to the Inspector to accept the case and no action was taken within 60 days after such request or the court, in such circumstance, may direct the said Inspector to investigate the case. But the ECA 2010 nowhere provides for any time-limit within which the investigation is to be concluded. As a result the Inspectors frequently delay in submitting reports to the court.From the mandate of the Act it is clear that, Environment Courts have been established only for Department of Environment (DoE) since primary responsibility to file a suit/ case and investigation thereof is vested to DoE. Establishment and smooth functioning of Environment Courts depend on DoE.
In this era of epistolary jurisdiction in environmental governance, procedural requirements to access to justice e.g. rule of standing have undergone epoch-making liberalization. The statute of New South Wales provides “any person” may sue to restrain a violation of the environmental law. More interestingly, Philippines new rules for environmental cases provides “any Philippino citizen” to sue for the enforcement of any environmental law “in representation of others, including minors or generations yet unborn” (Philippines/Rules, rule 2, sections 4 and 5). The New South Wales environment court has the power of judicial review as per the provisions of the NSW LECA, 1979. The New Zealand Environment court is a court of record. Our environment court neither has the power of judicial review nor is a court of record.In view of these provisions, the provision of executive intervention in access to justice process, in the ECA 2010 seems to be anachronistic.
The ECA 2010 has not recognized the substantive or procedural principles of the environmental jurisprudence e.g. principle of no harm, precautionary principle, principle of sustainable development, principle of prior notification and principle of public participation in decision making process etc. Moreover, the environment court has no suomoto jurisdiction to take up an environmental cause and to try it. The environment court has also some limitations in exercising its jurisdiction such as the court can deal only with the matters arising out of the Environment Conservation Act 1995, keeping a wide range of other environmental laws beyond its ambit through section 2 of the ECA 2010 which states any other law may be specified by the Government in the official Gazette for the purpose of the Act. But in last 10 years, Government has not issued any gazette notification to include any other Act.
Environment Court has no jurisdiction to try offences relating to forest resources, wild life-biodiversity, fisheries, water resource and other natural resources.Another limitation is that the court as per section 15(1) of the Environment Conservation Act 1995 read with section 2 of the ECA,2010 can impose the maximum penalty of taka 10 lac irrespective of the gravity of environmental harm or tort whereas the National Green Tribunal (NGT) of India can imposeas maximum penalty of 10 crore and 25 crore rupees for a natural person and legal person respectively.
In the Environment Courts of Bangladesh on average 100 cases are filed in every year though the National River Conservation Commission (NRCC) has published a series of list of 49,162 criminals of river grabbers across the country in 2019. According to a published report by the daily Samakal (June 5, 2020), in six environment Courts and one Appellate Courts have almost 6,000 cases for disposal and other almost 6,000 cases are filed in different courts across the country as Civil and Criminal cases. While in the Environment Control Board of New York city almost 7 lac cases are filed in every year. In last few years, the DoE has exercised its power only to impose fine instead of filing cases in the courts ensuring stringent punishment. DoE now prefers executive actions over judicial enforcement against the perpetrators.
All over the world specialized environmental judicial system is becoming more popular than ever. But the situation is totally different in Bangladesh. Our higher judiciary always keeps an active role to protect environment, rivers and natural resources. Recently High Court Division (HCD) in its landmark judgment, Human Rights & Peace for Bangladesh Vs. Bangladesh Government & Others, declared as the third country of the world that the river is a legal person and has a legal entity.
To establish more courts and extend the accessibility to environment justice are the best solution to improve environment, bio-diversity and climate change. The Law and Justice Division of the Ministry of Law, Justice &Parlimentary Affairs proposed 26 environment courts along with 125 post creation in 2017 to the Public Administration Ministry. No effective step has been taken yet to create those essential courts (Source: the daily Samakal, June 5, 2020). Now it is high time to accelerate sustainable environment justice in this pandemic situation to keep our country safe and secure through introducing more courts and ensuring smooth and effective justice on environment.
(The writer acknowledges with gratitude the different sources of information.)
*Writer is a member of Bangladesh Judicial Service and Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.
