Development of Environmental law in Bangladesh

Bangladesh is rich in natural resources and beauties. For this reason it is called the 'Queen of the
Universe.' But with the process of Industrialization and urbanization along with the whole world its
environmental soundness and riches are under threat. For this reason many environmental laws have
been passed from time to time. The history of environmental law corresponds with the history of our
country. At least 200 laws have passed regarding environmental protection in many names. The history
of environmental law can be divided into three phases. Those are:

1. British regime,

2. Pakistan regime,

3. Bangladesh regime.

British regime

Bangladesh inherited a legal system introduced in the 19th and 20th century by the British. The basic
structure of the system is built upon common law systems which promoted a feidal ownership concept
and allocation with absolute rent fixing and receiving authority. Even huge resource bases like forestry,
fisheries were settled under the permanent settlement regulation - 1793 and possessed by the feudal
Lords. Tenurial strategy was to expedite optimum economic return from resources. Hence almost every
resource was liable to be placed under private ownership on fixed rent payable on a fixed day of the
year. About 59 laws were passed in this regime. The Fatal accidents Act 1855 was the first Act of this
phase which relates to environment. Some other environment related laws passed in this regime are

1. The irrigation Act-1876,

2. The private fisheries protection Act 1889,

3. The public parks Act 1904,

4. The smoke nuisance Act 1905 ,

5. The juvenile smoking Act 1919,

6. The Forest Act 1927,

7. The coalmine labor welfare Act 1947 was the last law about environment in this regime.

Pakistan Regime (1947- 1971)

The fate of the people of Bangladesh was handed over to the Pakistan government by the British rulers
in 1947. During that time 39 laws, relating to environment were passed. The State Acquisition Act 1950
was the first law of this period. By this Act, the feudal system was abolished and the estates possessed
by the Landlords were acquired by the government. The holders of various titles to resources became
tenants of the state. Some other laws relating to environment In this regime are-
1. The protection and Preservation offish Actl 950,

2.The Embankment and drainage Act 1959,

3. The pure food Ordinance 1959,

4. The government Fisheries Ordinance 1959,

5. The private Forest Ordinance 1959,

6. The Agricultural pesticides ordinance 1971 was the last law relating to environment in this regime.

During this period the development of Environmental law was not

satisfactory. Because of-

a. Political instability,

b. Discrimination by the government to the East Pakistan,

c. Lack of environmental concern,

d. Lack of government initiatives,

e. Lack of technical and developed knowledge about environment,

f. World concern about the environmental protection and conservation

was not so strong as it is now.

Bangladesh Period (1971- present)

The need for rapid industrial and economic growth introduced such a situation in Bangladesh that has
resulted into a situation whereby healthy environment has become a huge task. After establishment of
independent Bangladesh, we have at least 143 Acts, Ordinances, Orders and Rules with one
Environment Policy. The development of International Environmental law was started wholeheartedly
from 1970s. From that point of view the Bangladesh wildlife (Preservation) Order 1973 and Environment
Pollution control Ordinance 1977 were passed. In 1992, The Bangladesh Environment Policy was
formulated containing 15 major sectors providing policy guidelines. Then, The Bangladesh Environment
Conservation Act 1995, Environment Conservation Rules - 1997 and Bangladesh Environment Court Act
2000 were passed to ensure environment justice system. The Environment Pollution Control Ordinance
1977 was repealed due to its ineffectiveness. However it may be mentioned that an elaborate law for
conservation of environment is in the process of being enacted by the government. But the major
common limitations of these laws are that-

1. Absence of comprehensive idea about environment,

2. Most of the laws are not enforced properly,

3. The laws which we inherited from British were only for collecting revenue, and not for preserving and
protecting environment. The discipline of environmental law is so wide. For this reason it is a very
comprehensive subject. The internal and international development greatly depends on environmental
soundness. So, environmental law can play a significant role for the progress of our country. More and
more we become aware of this matter more we can proceed on.

Environment Conservation : "Conservation of environment" means improvement of the qualitative and

quantitative characteristics of different components of environment as well as prevention of
degradation of those components. [Ref: Clause (f).]

Environmental conservation is a practice that paves the way for protecting the environment and natural
resources on the individual, organisational as well as governmental levels.

There are various core environmental issues that are taking a heavy toll on human lives. Ranging from
overpopulation, hydrological issues, ozone depletion, global warming to deforestation, desertification
and pollution, all these issues pose a severe threat to the existence of humankind. Unless environmental
conservation is becoming an effective mass movement, it is futile to expect positive growth especially in
the age of digital media which holds the potential to bring a revolution to save our planet from
destruction.

Importance of Environmental Conservation

It has become inherently important to work towards environmental conservation in contemporary

times. The following pointers elucidate this crucial need to save the environment from further
degradation:

 To reduce air, water and land pollution

 To facilitate the conservation of natural resources for our future generations
 To ensure the protection of biodiversity
 To implement sustainable development
 To restore the ecological balance
 To save our planet from harmful repercussions of global warming

Department of Environment-

(1) The Government shall, for carrying out the purposes of this Act, establish a Department to be
called the Department of Environment and headed by a Director General.

(2) The Director General shall be appointed by the Government and the terms and conditions of
his service shall also be determined by the Government.

(3) For proper performance of the functions of the Department, necessary officers and employees
shall be appointed in the manner and on the terms and conditions prescribed by rules.(section 3)
History of Department of Environment:

The first environmental activities in Bangladesh were taken soon after the Stockholm Conference
on Human Environment in 1972. As a follow up action to the Stockholm Conference, the
Government of Bangladesh funded, under the guidance of the Department of Public Health
Engineering and with a staff level of 27 and after promulgating the Water Pollution Control
Ordinance in 1973, a project primarily aimed at water pollution control. In subsequent years,
various events took place as described below.

In 1977, Environment Pollution Control Board with 16 members headed by a Member of the
Planning Commission and Environment Pollution Control Cell headed by a Director with staff
complement of 26 was established. This was followed in 1977 by the establishment of the
Environment Pollution Control Project, in 1985 by the establishment of the Department Pollution
Control and finally, in 1989 by the restructured and renamed the Department of Environment
(the Department) the activities of which are overseen by a Director General. The Department
discharges its responsibilities through a head office and six Divisional offices located in Dhaka,
Chittagong, Khulna, Bogra, Barisal and Sylhet.

Legal bases of DOE

The department of environment though was established in 1989 it got its legal basis when the
Environment Conservation Act was passed in 1995. Section 3 of the Act directs about the
establishment of Department of Environment by the Government. Section 21(3) clearly stipulates
that The Department of Environment hall be deemed to have been established under section 3 of
the Act. This Department now conducts its duties under the following Acts:

.1. Environment Policy, 1992

2. Environment Conservation Act, 1995 and subsequent amendments

3. Environment Conservation Rules, 1997 , 4. Environment Court Act, 2000 and subsequent
amendments

5. Ozone Depleting Substances (Control) Rules, 2004

Powers and functions of the department of environment

Powers and functions of the department of environment is also regulated under the Act as well as
the rules and regulations passed by the government The powers and functions of the department
is described in a nutshell: .

Planning & Development

The main activities in this core area are:

Policy Analysis
  DOE provides inputs to formulate environmental policy of the various sectors.
 It also analyses various policies of the government and advises the government on
modifications of any section of a policy where needed.

Planning and Evaluation

 DOE prepares a five-year annual development plan to fulfill central planning

requirements
 Periodical evaluation of progress of implementation of projects and the five-year plan.

Programme Coordination

 Coordination between projects and programmers is conducted to ensure effective project

planning and implementation.

Monitoring and evaluation

 On-going monitoring and periodic evaluation and reporting on the progress of project
implementation.

Environmental Awareness

 The Publicity and Environmental Awareness unit of the Department of Environment is

primarily responsible for creating awareness regarding the urgent need to preserve the
environment among the general public using various local media, as well as educational
and nongovernmental partners. The unit also produces and distributes educational
brochures, posters, pamphlets and leaflets that are used in schools, workshops and
training programmers.
 The Department organizes events to celebrate and promote a number of
Environmental awareness days, including: World Environment Day, International Ozone
Day, World Desertification Day.

Environmental Clearances

 As specified in Clause 7 of the Environmental Conservation Rules, all new industries and
projects must apply for an Environmental Clearance certificate. Industries are classified
according to their potential impact on the environment into four categories - Green,
Orange - A, Orange -B, and Red. Green industries are automatically granted a clearance
certificate. Orange categories must submit considerable further information and plans,
and may be subject to field inspection. The highly polluting categories Orange-B and Red
must in addition conduct a detailed Environmental Impact Assessment and prepare
environmental management plans satisfactory to the Department.
Environment Court Act 2010

In 2010, a fresh Environment Court Act (Bangladesh Environment Court Act, 2010) 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. This is clear that, the present Act has not mandated for separate or
independent Environment Court. So that, no more Environment Court has been established till
now except the former three Courts and an Appellate 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. Except
these two types of Courts there are Executive Magistrates functioning under the Mobile Court
Act, 2009. They can take cognizance of some offences at spot and convict the accused on the
basis of his/her confession. Under almost all the environmental laws there is a provision to run
Mobile Court.

Present Structure of the Environment Courts

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.This is clear that, the present Act
has not mandated for separate or independent Environment Court. As a result, no more
Environment Court has been established till now, except the former three Courts and an
Appellate 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. Except these two types of Courts there are
Executive Magistrates functioning under the Mobile Court Act, 2009. They can take cognizance
of some offences at spot and convict the accused on the basis of his/her confession. Under
almost all the environmental laws there is a provision to run Mobile Court. Moreover, there is an
administrative forum namely the Appellate Authority formed under section 14 of the BECA with
the Secretary, Joint Secretary and Deputy Secretary of the Ministry of Environment and Forest
(MoEF) as Chairman, Member and Member Secretary respectively 3 to dissolve grievances
against any notice, order or direction issued under BECA and Rules made thereunder, by the
Director General (DG) of the Department of Environment (DoE).

Functions of the Environment Court

The Environment Court adjudicates the cases received from the Special Magistrate ’s Court
(offences punishable with more than 5 (five) years imprisonment or a fine exceeding 5 (five) lac
taka) regarding offences under the environmental law. All suits for compensation under the
environmental law will be directly instituted to the Environment Court. The Court has the power
to impose penalty for violating its order and in particular the Court in its judgment can also make
order directing the offender or other relevant person, not to repeat or continue or not to do the
very act which constitute the offence; and to take preventive or remedial measures to avoid the
offended and probable injury to environment.

The Environment Court in trying offences under this Act will be deemed to be a criminal court
and is to follow the procedures laid down in the Code of Criminal Procedure, 1898 for trial and
disposal of a case triable by the Sessions Court. The Court in trying a suit for compensation will
be deemed to be a civil court and is to follow the procedure laid down in the Code of Civil
Procedure, 1908 for trial and disposal of civil suit including the powers of compelling the
attendance of witnesses, production of documents etc. The Environment Court has to conclude
the trial within 180 days.But the Court may have additional 90 days if the trial is not concluded
within the said time limit.
According to the Environment Court Act, an offence under an environmental law shall ordinarily
investigated by an Inspector of the DoE. The said Inspector has to take prior approval from the
DG before initiating investigation proceedings. Before initiating formal investigation s/he has to
prepare a preliminary report for the approval of higher officer. After getting approval for formal
investigation, Inspector shall file an FIR to the concerned police station regarding the offence.

The Court cannot take cognizance of an offence or receive any suit for compensation without a
written report from the inspector of the DoE.This Act also provides for Alternative Dispute
Resolution (ADR) for some offences under the BECA during the pendency of case.

Functions of the Special Magistrate’s Court

Apart from the Environment Court, a Magistrate of the first class or Metropolitan Magistrate
specially appointed as such, has been vested with the power of trying an offence involving a
penalty of an imprisonment not exceeding 5 (five) years or a fine not exceeding 5 (five) lac taka
or both.25 The Government by notification26 has empowered all Metropolitan Magistrates
(MM) for Metropolitan area and all Senior Judicial Magistrates for outside the Metropolitan area
to act as Special Magistrate in the respective areas. The Magistrate is to follow the procedure for
summery trial as prescribed in the Code of Criminal Procedure, 1898. All cases before the
Special Magistrate are to be conducted by a Special Public Prosecutor or an advocate appointed
by the Director General of the Department of Environment. Special Magistrate Court is also
mandated by law to conclude the trial within 180 days plus additional 90 days (if needed) and
not to take cognizance of offence without a written report from the Inspector of the DoE.

Functions of the Environment Appellate Court

Normally the decisions of the Environment Court in all cases must not be called in question
before any other court or authority. However, the aggrieved party is entitled to file an appeal to
the Environment Appellate Court within thirty days from date of passing the impugned
judgment, decree or penalty including an order of temporary injunction, an order to maintain
status quo, an order granting or refusing bail, an order of framing charge or discharge, an order
of taking cognizance of an offence or refusal thereof. For the purposes of appeal the
Government has established one Environment Appellate Court for the whole country at Dhaka. It
is a single judge court headed by a District and Sessions Judge. For the purpose of disposal of
appeals relating to offences, as well as suit for compensation, the Environment Appellate Court
will have the powers of a Sessions Court as an Appellate Court under the Code of Criminal
Procedure, 1898 and also will have the powers of an Appellate Court under the Code of Civil
Procedure, 1908 respectively.

Public interest Environmental litigation

Over the years, Public Interest Litigation (PIL) has emerged as an effective tool for seeking
judicial responses and subsequent government actions to the socio-economic challenges of the
unorganized, powerless and those segments of the society who are precluded from resorting to
legal redress owing to resource or knowledge constraints. PIL has enabled public-spirited
individuals, groups and conscious citizens to litigate in the interest of the poor and
disadvantaged; and widened the scope for NGOs and civil society to participate in formulation of
pro-people policies and laws. A PIL (a petition brought before the High Court Division of the
Supreme Court of Bangladesh in the nature of writ under Article 102 of the Constitution) is
generally instituted for the enforcement of the constitutional and legal rights of the poor and
excluded groups as well as ensuring accountability of concerned government and public,
authorities towards issues of public importance. Persistent efforts by NGOs and social action
groups through PIL has, in many occasions, prompted the High Court Division to issue directives
and orders that in turn addressed the socio-economic concerns of the poor and the marginalized
groups.

Definition and Meaning

Public Interest Litigation means litigation for the protection of public interest. It is litigation
introduced in a court of law, not by the aggrieved party but by the court itself or by any other
private party.

Public Interest Litigation is the power given to the public by courts through judicial activism.

"Public Interest Litigation", in simple words, means, litigation filed in a court of law, for the
protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards
etc82. PUBLIC INTEREST LITIGATION is not defined in any statute or in any Act. It has been
interpreted by judges to consider the intent of public at large. Although, the main and only focus
of such litigation is only "Public Interest" there are various areas where a PUBLIC INTEREST
LITIGATION can be filed. For e.g.

- Violation of basic human rights of the poor ,

- Content or conduct of government policy

- Compel municipal authorities to perform a public duty.

-Violation of religious rights or other basic fundamental rights. "Public interest litigation can be
initiated and maintained by a public such with regard to public injury, though such a person or a
body of persons may not seemingly have been personally hurt by a public injury.

Public interest litigation in the regime of environmental law in Bangladesh

The Constitution of Bangladesh does not explicitly provide for the right to healthy environment
either in the directive principles or as a fundamental right. Article 31 states that every citizen has
the right to protection from 'action detrimental to the life liberty, body, reputation, or 'property',
unless these are taken in accordance with law. It added that the citizens and the residents of
Bangladesh, have the inalienable right to be treated in accordance with law.
If these rights are taken away, compensation must be paid. Article 32 states: "No person shall be
deprived of life or personal liberty saves in .accordance with law". These two articles together
incorporate the fundamental 'right to life'. The following discussion suggests that this right to life
includes the right to a healthy environment capable of supporting the growth of a meaningful
existence of life'. Pakistan Chest Foundation and others Vs. Government of Pakistan and others
reported in 1997 CLC 1379. In 1994, a public interest litigation was initiated before the Supreme
Court dealing with air and noise pollution. The Supreme Court agreed with the argument
presented by the petitioner that the constitutional 'right to life' does extend to include right to a
safe and healthy environment84." In a recent case, the Appellate Division and the High Court
Division of the Supreme Court have dealt with the question in a positive manner. The Appellate
Division, in the case of Dr. M. Farooque v. Bangladesh has reiterated Bangladesh's commitment
in the context of engaging concern for the conservation of environment, irrespective of the
locality where it is threatened.' (Afzal, CJ, para. 17). This was a full court consensus judgment
and the court decided:

Articles 31 and 32 of our constitution protect right to life as a fundamental right. It encompasses
within its ambit, the protection and preservation of environment, ecological balance free from
pollution of air and water, sanitation without which life can hardly be enjoyed. Any act or
omission contrary thereto will be violative of the said right to life."(Chowdhury, J, Para. 101)

The High Court Division in the same case85 expanded the fundamental 'right to life to include
anything that affects life, public health and safety. It includes 'the enjoyment of pollution free
water and air, improvement of public health by creating and sustaining conditions congenial to
good health and ensuring quality of life consistent with human dignity. The court added that, if
right to life means the right to protect health and normal longevity of any ordinary human being,
then it could be said that the fundamental right to life of a person has been threatened or
endangered.

These two cases show that the courts are willing to establish the right to a clean environment.
Another case86 presently pending before the High Court deals with commercial shrimp
cultivation and adverse development. According to the petitioner, commercial shrimp cultivation
involves the "usage of various chemicals and saline) water"....which eventually makes the soil
infertile and unsuitable for soil cultivation...[l]t further damages the environment by causing
stunted growth of the trees or their death, reducing the grazing areas for cattle by increasing
water logging, and adversely affecting the size of the open water fish catch as a result of the
dumping of chemicals into the river....shrimp cultivation will cause irreparable ecological and
environmental damage to the community and to the livelihoods of the inhabitants of the said
area.' The petitioners submitted that the government orders regarding commercial shrimp
farming frustrated the spirit of Environmental Policy 1992 and breach of article 32 of the
Constitution.

Environmental crime:
Environmental crime refers to the violation of laws intended to protect the environment and
human health. These laws govern air and water quality and dictate the ways in which the
disposal of waste and hazardous materials can legally take place. Individuals or corporations can
be found guilty of a white collar crime when violations of environmental law are committed.

Environmental crime covers a wide range of violations that result in harm befalling the
environment and human life, from errors at the administrative or record keeping level to the
actual illegal dumping of pollutants into the environment.
Environmental crimes may include but are not limited to:

 Littering
 Improper waste disposal
 Oil spills
 Destruction of wetlands
 Dumping into oceans, streams, lakes, or rivers
 Groundwater contamination
 Improperly handling pesticides or other toxic chemicals
 Burning garbage
 Improperly removing and disposing of asbestos
 Falsifying lab data pertaining to environmental regulations
 Smuggling certain chemicals, such as CFC refrigerants, into the U.S.
 Bribing government officials
 Committing fraud related to environmental crime

There are large number of NGOs in Bangladesh and other countries that are exclusively working
for environmental, protection, conservation, and awareness. The number of these non-
governmental organizations which are actively involved in environmental protection in our
country is, in fact, more than in any of the developing country. Increasingly, the government is
viewing NGOs not only as agencies that will help them to implement their programs, but also as
partners shaping policy and programs.

NGOs in Bangladesh:

1. Bangladesh Environment And Development Society: BEDS

2. Works for Green Bangladesh (WGB)

Vision:

To promote ecological balance and create harmony between human and nature.

Mission:

To build the capacity of the most vulnerable communities in the region to ensure sustainable use
of natural resources, provide eco-friendly means of living, reduce the adverse effects of climate
change and improve their socio-economic condition while maintaining the ecological balance.
OBJECTIVES

 Advocate to preserve existing natural treasures;

 Conduct research to maintain the ecological balance;
 Reduce the adversities arising from climate change;
 Provide sources for clean energy;
 Implement disaster risk-reduction strategies among the most vulnerable communities;
 Establish human rights through good governance;
 Create livelihoods opportunities for the most vulnerable populations;
 Improve integrated water resource management and eco-habitat;
 Ensure proper water, sanitation and hygiene within communities; and
 Enhance women’s empowerment by emphasizing equitable development.

These global nonprofit organizations are leading the change:

 WWF.
 350org.
 Greenpeace.
 Earth Island Institute.
 Rainforest Action Network.
 Friends of the Earth.
 Global Footprint Network.
 Earth Day Network.

Role of NGO’S in Protection for the Environment

The NGO’s constitute a world wide network interacting with Governments and Internal
intergovernmental organization in shaping international environmental policies;-

 Creating awareness among the public on current environmental issues and solutions.
 Facilitating the participation of various categories of stakeholders in the discussion on
environmental issues.
 Conducting participatory rural appraisal.
 Being involved in the protection of human rights to have a clean environment.
 Protecting the natural resources and entrusting the equitable use of resources.
 Data generation on natural resources, time line history of villages.
 Analysis and monitoring of environmental quality.
 Transferring information through newsletters, brochures, articles, audio visuals, etc.
 Organizing seminars, lectures and group discussion for promotion of environmental
awareness.
 Helping the villages’ administrative officials in preparation, application and execution of
projects on environmental protection.