Case Notes

Dr. Mohiuddin Farooque vs. Bangladesh (AD) – Locus Standi – FAP 20

Para 24, 25 –Submission of Dr. Farooque

Para 32 – Brubari case locus standi finding

Para 54 – Floodgate Argument against PIL

Para 49, 77 – Appearing HCD for “public wrong” or “public injury” has sufficient interest

Para 102 – Article 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.

Dr. Mohiuddin Farooque v Bangladesh (1996) –

Import of contaminated (high radiation) milk powder was challenged

Para 21 – The state is bound to protect the health and longevity of the people living in the country as
right to life guaranteed under Articles 31 and 32 of the Constitution includes protection of health and
normal longevity of a man free from threats of man-made hazards unless that threat is justified by Law.
Right to life under the aforesaid Articles of the Constitution being a fundamental right it can be enforced
by this Court to remove any unjustified threat to the health and longevity of the people as the same we
included in the right to life.

Dr. Mohiuddin Farooque v Bangladesh (2001) – Industrial Pollution Case – 22 BLD (HCD) 543 – Excellent
Judgment

Article 21 – Duty of Public Servants, Article 31 – Enjoy the protection of law, Article 32 – Right to life

Para 17 – The expression 'life' enshrined in Article 32 includes everything which is necessary to make it
meaningful and a 'life' worth living, such as, among others maintenance of health is of utmost
importance and preservation of environment and hygienic condition are of paramount importance for
such maintenance of health, lack of which may put the 'life' of the citizen at nought. Naturally, if the
lives of the inhabitants living around the concerned factories are in jeopardy, the application of Article
32 becomes inevitable because not only a right to life but a meaningful life is an inalienable fundamental
right of a citizen of this country.
Para 23 – This declaration in the Constitution is not mere empty words. These guarantees are
fundamental in nature, bestowed upon the people of Bangladesh by its Constitution. The expression
"life" enshrined in Article 32 includes everything which is necessary to make it meaningful and a 'life'
worth living, such as, among others, maintenance of health is of utmost importance and preservation of
environment and hygienic condition are of paramount importance for such maintenance of health, lack
of which may put the 'life' of the citizen at naught. Naturally, if the lives to the inhabitants living around
the concerned factories are in jeopardy, the application of Article 32 becomes inevitable because not
only a right to life but a meaningful life is an inalienable fundamental right of citizens of his country."

Para 30 – Constitutional Command to public servants to observe the constitutional duties.

Para 31 – The oath of office of the Judges of the Supreme Court requires that they will preserve, protect
and defend the Constitution and the laws of Bangladesh. These are not mere ornamental empty words.
These glorifying words of oath eulogizes the supremacy of judiciary. It is by now well settled that if the
Government or its functionaries fails to act and perform its duties cast upon them by the laws of this
Republic, the High Court Division of the Supreme Court, shall not remain a silent spectator to the
inertness on the part of the Government or its officials, rather, in order to vindicate its oath of office can
issue, in its discretion, necessary orders and directions, under Article 102 of the Constitution to carry out
the intents and purposes of any law to its letter, in the interest of the people of Bangladesh because all
powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected
only under, and by the authority of the Constitution.

Para 40 – constitutional objectives of a welfare state.

Para 41 – Right to life u/Article 32 means at least a right to a decent and healthy way of life in a hygienic
condition. It also means a qualitative life among others, free from environmental hazards. This is also
one of the basic rights of a human being to live in a healthy atmosphere and constitutional remedy
under Art. 102 will be available if this basic human right is threatened due to violation of any of the
provisions of the relevant laws enacted for such purpose or due to recklessness or negligence on the
part of any person or authority which tends to upset the guarantees under Art. 31 and Art. 32 of the
Constitution.

Para 44 – Constitutional duty – All power is a trust that we are accountable for its exercise - that, from
the people, and for the people, all springs, and all must exist.

Dr. Mohiuddin Farooque v Bangladesh – Previous case – tannery relocation order

Para 3 – The river Buriganga is no longer a river, but has become a large drain.

Para 11 – Nobody can deny that the rivers around the City have become moribund. Those are ravaged
by the effluence disgorged by the tanneries, mills and factories. These are not rivers any more. We have
seen the pictures of those pools of chemicals which were once picturesque rivers. We are simply at a
loss, seeing the horrendous situation of such an incredible magnitude.
Orders:

All the Industries of red category must install Effluent Treatment Plant (ETP) and other appropriate
pollution fighting devices

Let the tanneries be relocated from Hazaribagh by 28th February, 2010, failing which those shall be shut
down since the life and well-being of the citizens take precedence above everything and cannot be
sacrificed even for the industries.

Rabia Bhuiyan, MP v Ministry of LGRD & others

Para 23 – Non-compliance with the statutory duties of the respondents to ensure access to safe and
potable water constitutes a violation of the right to life as guaranteed by Articles 31 and 32 of the
Constitution read together with Articles 15 and 18 of the Constitution.

Para 25 – Hygienic environment is an integral facet of right to healthy life and it would be impossible to
live with human dignity without a humane and healthy environmental protection. Therefore, it has now
become a matter of grave concern for human existence. Promoting environment protection implies
maintenance of the environment as a whole comprising the man-made and the natural environment.
Therefore, there is a constitutional imperative of the State Government and the municipalities not only
to ensure and safeguard proper environment but also an imperative duty to take adequate measures to
promote, protect and improve both the man-made and the natural environment.

Metro Makers and Developers Limited Vs. Bangladesh Environmental Lawyers' Association Limited
(BELA) and Others

Details discussion on Environment Law (Read)

Para 166 – Right to life includes right to protection and improvement of environment and ecology. Even
if there could not have been any law imposing restriction relating to the use of the nal (নাল) lands in the
areas in question which operate as reservoir of flood and rain water. If these lands are filled up it will
cause serious problem in draining out water resulting from flood and rain and the affected people can
compel the authorities through judicial review to take steps to preserve and protect health,
environment and ecology in the Metropolitan areas. The fundamental right of the third party purchasers
cannot override the fundamental right of overwhelming number of residents of the metropolis under
articles 31 and 32 of the Constitution.
Human Rights and Peace for Bangladesh (HRPB) and Ors. Vs. Bangladesh and Ors

22 BLC (2017)48

Para 19 – The government, represented by the Deputy Commissioner (DC), Chittagong, as well as the
concerned Ministry are equally duty bound to preserve and protect the river and its banks, along with
other respondents, by stopping and evicting all unauthorized constructions and encroachments, done by
way of earth filling or building any kind of structure or in any other manner whatsoever. It has to be
noted with due concern that, section 5 of BECA, 1995, prohibits not only changing the character of
municipal areas' playground, open space, park and natural water reservoir, but also prohibits the grant,
lease or transfer of the same.

Para 23 – "Doctrine of the Public Trust". The Public Trust Doctrine primarily rests on the principle that
certain resources like air, sea, waters and the forests have such a great importance to the people as a
whole that it would be wholly unjustified to make them a subject of private ownership. The said
resources being a gift of nature, they should be made freely available to everyone irrespective of the
status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of
the general public rather than to permit their use for private ownership or commercial purposes.
Though the public trust doctrine under the English common law extended only to certain traditional
uses such as navigation, commerce and fishing, the American Courts in recent cases expanded the
concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake
case clearly show the judicial concern in protecting all ecologically important lands, for example fresh
water, wetlands or riparian forests. The observations therein to the effect that the protection of
ecological values is among the purposes of public trust, may give rise to an argument that the ecology
and the environment protection is a relevant factor to determine which lands, waters or airs are
protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this
reasoning and are expanding the public trust to encompass new types of lands and waters. There is no
reason why the public trust doctrine should not be expanded to include all ecosystems operating in our
natural resources. Our legal system- based on English common law- includes the public trust doctrine as
part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for
public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests
and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural
resources. These resources meant for public use cannot be converted into private ownership.

River Judgments – Human Rights and Peace for Bangladesh vs. Bangladesh and others – SC website –
February 2019

Article 18A – Public Trust Doctrine affirmed.

Most of the Environment Legislations are cited Throughout the Judgment.

Page 69 – 81 River Judgments in Bangladesh.

Page 81 – 169 Public Trust Doctrine details discussion – Public Trust and Bangabandhu – Page 188 – The
court discussed the Constitution and the laws made in the regime of Bangabandhu Govt. and came to
the conclusion that, though BB was not aware of Public Trust doctrine, he took a strong position to save
the peoples/public property. If he were alive today, Bangladesh could be a prosperous country like
Singapore.

Page 269 – last: Article 21 of the Constitution of Bangladesh – Public Property equivalent to Public Trust
and every citizen and every govt. employee is constitutionally bound to protect the public property.

Page 272 – Right to life – Right to live in a developed condition. Man has the fundamental right to
freedom, equality and adequate conditions of life; in an environment of a quality that permits a life of
dignity and well-being.

Conclusions:

Turag was declared LIVING ENTITY, and all the rivers in Bangladesh shall enjoy the same status.

Public Trust Principle, Polluters Pay Principle and Precautionary principle was made part of domestic law
of Bangladesh.

Schools, Media and Industries were ordered to conduct Awareness programmes.

Faridul Alam and Ors. Vs. Bangladesh and Ors. – 30 BLD 500

Para 47 – Public at large are the beneficiary of the sea, seashore, beach, running waters, airs, forests and
ecologically fragile lands and that the state as a trustee is under a legal duty to protect the natural
resources but the government had favored some fortunate gray hair persons in giving lease of the Beach
which is in the heart of Cox's Bazar Beach disregarding the rights of the 14 crore people.

Environmental Judicial Activism at a glance – It has been submitted that this Hon'ble Court in many
cases have taken Suo Motto action by issuing Rule for the protection of climate and environment of
Dhaka City, Rivers of Bangladesh and Saint Martin Island. It is in the fitness of things and the demand of
the day that this Hon'ble Court would consider the necessity of preserving the natural condition of the
sea shore which is the largest sea shore of the world and the same naturalness should not be affected by
the construction of series of Hotel/Motel in the name of Tourism. Even, if the Government by way of its
action invade the natural climate condition this Hon'ble Court is expected to interfere with that to
uphold the constitutional obligation to protect environment which is included in the fundamental rights
of every citizen of Bangladesh. Moreover, the intergenerational right of safe climate and natural
environment is an obligation to protect the right to life as is enunciated in the decision of Supreme Court
of Philippine and relied upon by our Appellate Division. Hence, the Rule is liable to be discharged

Writ Petition No. 3503 of 2009 (Human Rights and Peace for Bangladesh & others vs. Bangladesh &
others

Secretary of DoE was ordered to declare Buriganga, Turag, Balu and Shitalykkha Ecologically Critical
Area. Respondents were ordered to construct Demarcation pillars, walk ways beside the river.

Bangladesh Environmental Lawyers Association and Ors. Vs. Bangladesh and Ors. – 3CLR (2015)123 –
2012

Para 57 – As per the mandate of Articles 31, 32 and 42 of the Constitution, the respondents are duty
bound to ensure the right to protection of law, to life and to property of the people living in and around
the area of Jaflong-Dawki river, and reading Article 18A of the Constitution, a newly inserted provision, it
appears that it is the duty of the state to protect and improve the environment and to preserve and
safeguard the natural resources, biodiversity, wetland, forest and wildlife for the present and future
citizens.

Para 58 – We are inclined to direct the respondents to declare Jaflong-Dawki river and its adjacent areas
as 'Ecologically Critical Area and thereby direct the respondents to do all the needful in accordance with
law including to remove the bailey bridge along with its approach road/dam as constructed over the
river Jaflong-Dawki flowing through Goainghat Upazila of Sylhet district.

Bangladesh Environmental Lawyers Association (BELA) Vs. Bangladesh – 2009

Writ Petition No. 7260 of 2008

The case well explained shipbreaking hazards. Import of MT Enterprise (IMO NO. 7709136) for breaking
purpose and the subsequent attempted entry of the said vessel into territorial waters of Bangladesh was
challenged in the writ petition filed by BELA.

Para 46 – The process of shipbreaking creates various health- threatening hazardous materials is beyond
doubt…

Para 47 – What are some of the hazards associated with shipbreaking? e U.S. Department of Labor,
Occupational Safety and Health Administration
Para 50 – The Court followed the Basel Convention and held that vessels destined for scrapping or
recycling are hazardous waste and may be imported only after due decontamination before it is sold to
the Bangladeshi importer. Hazardous waste import is prohibited under the “Import Policies – 2006-
2009”.

Para 51 – The import of any further vessel, being hazardous waste or containing hazardous materials,
which has not been decontaminated at source, must be prohibited for the purpose of import into
Bangladesh until and unless it can be shown to the satisfaction of the authority concerned namely, the
Ministry of Environment and Forest, the Ministry of Labor and the Ministry of Shipping and their
respective departments that the vessel concerned has been decontaminated and that the dismantling of
the vessel will be conducted under strict conditions following the laws of the land keeping in view the
need to have satisfactory provisions for safety of the workers, safety and integrity of the environment
and adequate provisions for disposal of the waste generated by dismantling process.

Para 54 – The Court directed the Ministry of Environment to immediately take steps to formulate Rules
and regulations in order to ensure that hazardous vessels are not imported into the country and, when
the vessels are imported after due compliance of Rules and regulations, having been decontaminated at
source or outside the territory of Bangladesh, that their dismantling will take place in a safe manner
such that no workers are exposed to hazards and the environment is not exposed to pollution and
hazardous materials.

Para 64 – Shipbreaking yards are industries as defined in section 2(61) of the Labour Act 2006 and they
fell in red category. All Shipbreaking yards must take environment clearance certificate to run their
operation.

Directions:

75. With regard to import of vessels for scrapping generally:

1. Decommissioned sea-going vessels, including end-of-life single-hull oil tankers which have
been destined for disposal/recycling, are being sent from European and other countries to be
dismantled in Bangladesh without first being decontaminated of hazardous materials as is
required by the Basel Convention.

2. Vessels enlisted in the Greenpeace list of vessels containing hazardous materials are being
imported on false representation both by the sellers as well as by the importers.

3. Ministry of Shipping through its Department of Shipping is allowing import of hazardous

waste (namely vessels meant for scrapping which are classified as waste within the meaning of
the Basel Convention) and vessels containing hazardous materials, without proper scrutiny, in
flagrant disregard of the safety and security of workers in the shipbreaking yards as well as
demonstrating blatant indifference to the integrity of the environment and humans who live in
the vicinity of the shipbreaking yards and other citizens of the country and having no
 consideration for the flora and fauna and ecological balance which are also seriously affected by
toxic pollutants generated by the dismantling process.

76. Import of vessel MT Enterprise:

1. Respondent No. 17, Madina Enterprise initially obtained the NOC for import of vessel MT
Enterprise from the Department of Shipping by misrepresenting the fact that the vessel was not
enlisted on the Greenpeace list of vessels containing hazardous materials, and that it did not
contain any hazardous materials. 2. The Department of Shipping issued the NOC for the import
of MT Enterprise without exercising due diligence, in a manner which can be termed as
subterfuge. 3 . The Survey Committee appointed by the Department of Shipping was not
representative of the relevant persons, inasmuch as the Department of Environment, being a
vital component, was totally ignored. 4 . The terms of reference of the Survey commissioned by
the Department of Shipping appears to be self-serving, motivated and misconceived and does
not reflect the real purpose of such survey. The test applied was illogical and the findings of the
Committee are unacceptable in view of independent reports regarding similar oil tankers, which
lead us to doubt the bona fides of the intention of those instigating and conducting the survey.
5. Having found that at least some hazardous materials exist on board, it was inappropriate to
allow the vessel to beach without first ascertaining the capability of the ship breaker to handle
the hazardous materials adequately ensuring the safety of the workers and wellbeing of the
environment. 6 . The way in which the earlier writ petition, W.P. No. 6262 of 2008, was caused
to be disposed and the way in which the cancellation of the NOC was withdrawn, as if the Court
ordered the withdrawal, was demonstration of ingenuity on the part of the Department of
Shipping.

77. With regard to shipbreaking yards operating without prior clearance certificates:

1. Shipbreaking is an industry as defined in section 2(61) of the . 2. Admittedly, respondent No.

17, Madina Enterprise has dismantled the vessel MT Enterprise without obtaining any
Environmental Clearance. 3. The shipbreaking yards which are habitually allowing scrapping of
vessels, which they import themselves or which are imported by others and are dismantled on
their premises are required by law to obtain prior Environmental Clearance from the
Department of Environment. 4 . Where the premises are not ordinarily used for shipbreaking,
but where importers scrap vessels imported by them, the importer is required to obtain prior
Environmental Clearance to proceed with the scrapping as a project. 5 . According to the report
of the Ministry of Environment and Department of Environment 36 shipbreaking yards in the
Chittagong area have been and are operating the process of dismantling ships and other sea-
going vessels in flagrant violation of the existing laws of the land which require prior
Environmental clearance from the Department of Environment. 6. The Department of
Environment has failed miserably in its duty to enforce the law, having all the powers to do so as
given by the [Environment Conservation Act, 1995] and the Rules framed thereunder.

78. In view of the above conclusions, we hereby issue the following directions:
1. So far as the vessel M.T. Enterprise is concerned the injunction on further dismantling of the
ship will continue until such time as the respondent No. 17 obtains a clearance certificate from
the Department of Environment for the purpose of dismantling the remainder of the vessel. 2.
The Ministry of Environment and Department of Environment are directed to immediately take
steps to ensure closure of all shipbreaking yards which are operating without necessary
Environmental Clearance as required by law. 3 . The law-enforcing agencies, including the Police,
Magistracy and local administration are directed to accord cooperation and assistance to the
Department of Environment as enjoined by section 4(Ka) of the in ensuring the closures of
shipbreaking yards operating without prior clearance from the Department of Environment. 4.
The Department of Environment is directed to file compliance within 2(two) weeks giving details
of what steps they have taken in this regard. 5. If and when the shipbreaking yards or any
importer of any vessel apply for clearance certificate, then the Department of Environment shall
deal with the application expeditiously and supply the clearance certificate only upon
satisfaction that all the facilities required for proper dismantling of the vessels, taking into
consideration whether safety measures for the workers and the conservation of the
environment and in particular disposal of hazardous waste generated by the dismantling
process, are in place. 6 . The Ministry of Environment is hereby directed to frame Rules and
regulations for the proper handling and management of hazardous materials and wastes,
keeping in view the [Environment Conservation Act], the Rules framed thereunder, the Basel
Convention, 1989 the Factories Act, 1965 and [Labour Act, 2006]. 7. Thereafter the Ministry of
Environment is directed to file compliance in this regard within 3(three) months from receiving a
copy of the judgment. 8. The Ministry of Shipping and Department of Shipping are directed to
ensure that hazardous vessels enlisted in the Greenpeace list of vessels containing hazardous
materials are not imported into the country and when such vessels are imported after having
been decontaminated at source or outside the territory of Bangladesh, that prior Environmental
clearance has been obtained on showing that adequate safety and precautionary measures have
been taken for their dismantling in accordance with law. 9 . The Government is directed to set
up a High Level Technical Committee comprising representatives from the Ministry/ Department
of Shipping, the Ministry/ Department of Environment, Ministry of Labour and Manpower,
Retired Naval Officers, Academicians /Experts in the field of Marine Engineering, Marine Biology,
Specialists in the field of Environment, Soil Science and Ecology, Hazardous Waste Management
and relevant NGOs, such as BELA.