Restricted access to environmental justice

Global awareness building and enhanced international commitments following the Stockholm Conference 1972 and the Rio Conference 1992 influenced more than a hundred countries of the world to incorporate provisions in the constitutions recognizing the right to the environment in a way either expressed or implied.

In at least 13 countries where the governments were slow or took no such step, the courts took the initiative and recognized the right to the environment. Bangladesh is included in this shortlist of countries. In the absence of any enforceable provision in the Constitution regarding the protection of the environment, the Supreme Court of Bangladesh recognized the right to the environment in Dr. M. Farooque v Bangladesh [1997] 49 Dhaka Law Reports 1 (SC).   

Since then, the Supreme Court of Bangladesh has been the vanguard against any environmental pollution and has handed down several important judgments including directions. The Supreme Court has extended the meaning of the right to life to impose positive obligations on the state. One such example is Rabia Bhuiyan, MP v Secretary, Ministry of LGRD and Others [2007] 59 DLR 176 (SC). In this case, the Supreme Court of Bangladesh pronounced based on the right to life provisions of the Constitution that everyone has the right to safe drinking water. In Bangladesh Environmental Lawyers Association (BELA) v Bangladesh [2008] (Writ Petition No. 7260 HCD) High Court Division of the Supreme Court of Bangladesh while directing the government to set up a committee to ensure the impartial supervision of the ship-breaking industry asked the government to comply with the requirements under the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal 1989. The Supreme Court has not restrained itself in recognizing the right to a proper environment for human beings but also has extended the right to non-humans. In response to a Writ Petition No. 13989 of 2016 filed by the Human Rights and Peace for Bangladesh (HRPB) challenging the legality of earth-filling, encroachment, and construction of structures along the banks of river Turag, the High Court Division of the Supreme Court of Bangladesh in 2019 recognized the river Turag as a living entity with legal rights and asked the concerned authorities to remove all the structures from its banks within thirty days of the decision. The Court also held that the order will be applicable for all the rivers of the country and appointed the National River Protection Commission as the legal guardian of all the rivers of the country. The judgment given by the High Court Division was upheld by the Appellate Division of the Supreme Court of Bangladesh. Again Bangladesh stands out to be among one of the very few countries where rights of nature have been recognized through a judicial pronouncement.  

In line with the Higher judiciary, the Subordinate Judiciary of Bangladesh is also working to protect the environment. Despite the necessity and supporting provisions in the Environment Courts Act 2010, only two environment courts and one environment appellate court have been established in Bangladesh. Compared to the huge population and environmental hazards and pollution this number is very nominal. To overcome this situation, the Subordinate judiciary has taken a strong stride forward. Section 5 of the Environment Courts Act empowers the Government to appoint Special Magistrates in every district to deal with environmental offences under the Environment Conservation Act 1995. In line with Notification No. Bichar-1/4P-1/2008-133 dated 22.03.2011 published by the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs authorizing the Chief Judicial Magistrate and the Chief Metropolitan Magistrate to appoint any Senior Judicial Magistrate or Metropolitan Magistrate as a Special Magistrate to try environmental offences, orders have been made in several districts appointing Special Magistrates. The orders given by the Chief Judicial Magistrates of Feni, Hobigonj, Narayanganj elaborately explained the powers assigned to the Special Magistrate in terms of taking cognizance of environmental offences and presiding mobile courts. 

In recent times, several significant orders and directions have been given by the Special Magistrates presiding the Special Magistrate Courts for environmental offences. Notable orders include orders directing the Department of Environment (DoE) to take steps against harms caused by brick kilns given by Special Magistrate Hobigang. The Special Magistrate appointed for Feni has ordered the removal of illegal dams to protect crops and ensuring the natural flow of water. Orders have been pronounced to protect the Kalidas Pahalia River, the Dadnar Canal from pollution by the Special Environment Magistrate Feni. In all the decisions, health hazards and safety of the people living in the neighborhoods have been mentioned showing the concern by the Judiciary to ensure environmental justice. 

It is even more encouraging to see that, the Special Magistrate Courts are exercising suo moto jurisdiction in taking cognizance of offences. This is a relief against the bureaucratic provision of filing environmental cases through the DoE. Environmental justice in Bangladesh is suffering most because of the restricted access to justice. Unfortunately, even after the adoption of the Environmental Courts Act 2010, this particular scenario remains unchanged. According to Section 7 of the ECA 2010, no claim for compensation shall be considered by the environmental courts except on the written report of an Inspector of the DoE. It is stated in Section 6(3) that no Special Magistrate shall take cognizance of an offence except on the written report of an Inspector of DoE. No doubt, these provisions are very restrictive and an obstacle to enhancing access to environmental justice. This barrier to access to environmental justice is making it impossible for the victims of environmental pollution to seeking redress. The consequence is that Environmental Courts in Bangladesh are termed inactive courts by leading scholars. A report published in the Daily Prothom-Alo dated 13 March 2021 shows that the total number of cases pending before the three designated Environmental Courts is 7,002 whereas only 388 of those are filed under the Bangladesh Environment Conservation Act 1995. Due to the restricted access to environmental justice, the Environmental Courts in Bangladesh have the lowest case filing rate in comparison to the global statistics. 

Considering the continuous degradation of the environment, it is expected that the way both the Higher Judiciary and the Subordinate Judiciary of the country have taken initiatives will help to protect the environment. It is also expected that these initiatives will help to remove the gatekeeper role played by the DoE, which is an executive body. There are thousands of environmental complaints which are less likely to be investigated leading to judicial filings. It is only to be seen that Special Environmental Magistrates are functioning in all the 64 districts of the country and they are exercising the full authority of taking cognizance of environmental offences and doing mobile courts as is authorized under the Environment Courts Act 2010 to ensure environmental justice.