An assignment on Environment Court Act (ECA),

2010

Presented by
Md. Parvez Rahman
Department of Law
University of Dhaka
 Content

Introduction of ECA
Features
Special Magistrate Court
Environment Court
Environment Appellate Court
Effectiveness of the Environmental Court in Bangladesh
Loopholes in environment court
Limitation of the Enforcement of the Environmental Law in
Bangladesh
Comment
 Environment Court Act (ECA), 2010

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 constitutional mandate
to protect the nature, rivers, wetlands and natural resources. In our Constitution,
Article 18A clearly states that “The State shall endeavor 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.”
The State has enacted a number of laws including 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. In 2010,
a fresh Environment Court Act namely Bangladesh Environment Court Act
(ECA), 2010 has been passed.
Environment Court Act (ECA), 2010
The purpose of the environmental court in Bangladesh was to provide effective
judicial and administrative measures and take liability for the victims of both
man-made and natural hazards by following the agenda 21 of the United Nations
Environmental Program (UNEP) in 1992. However, the 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.
Feature of The Act

❖ Special Magistrate Court

The Act provides vide section 5 that a Special Magistrate's Court also be
established in each district headed by a Magistrate of 1st class or a Metropolitan
Magistrate in metropolitan area and the said Magistrate shall in addition to his
ordinary function dispose of the cases that fall within the ambit of an Environment
Court.
Jurisdiction
As per sec. 6(3) of the Act, Special Magistrate Court shall not receive any claim
for compensation under environmental law except on the written report of an
Inspector. And where a person presented a written request to the said Inspector to
accept a claim for compensation and no action was taken within 60 (sixty) days
though such claim deserves to be taken into cognizance for the purpose of trial,
then the Court may directly receive the claim for compensation without such
written report, or may direct the said Inspector to investigate the claim.
The Magistrate court proceedings can only start in accordance with the written
report of the departmental inspector. The Director General or any person
empowered by him can directly file a case before the Magistrate or can file an
FIR in police station. However, in the case of failure of the inspector to complete
the investigation within 60 days of a request, the court may order the investigator
to investigate the case or may receive the case directly from individuals without
a report.
The special magistrate can make any order to seize any substance, mechanism or
any part thereof or transport used in crime declared in the said act or can make
any order or decree as the magistrate thinks fit for compensation. Along with the
seize power, as per section 9(1), the magistrate can pronounce any sentence of
imprisonment not more than 5 years or of fine not more than 5 lacs taka. This is
a special pecuniary jurisdiction conferred by the ECA whereas Code of Criminal
Procedure, 1898 provides pecuniary jurisdiction limited to 5 years imprisonment
or fine of 10 thousand takas. As per sec 6(2), The court can confiscate things
involved with the offence and pass order or decree in appropriate cases.

❖ Environment Court
It is manifestly mentioned in section 4 of the Act that the present Environment
Court Act 2010 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. No more Environment Court has been established till now
except the former three Courts and an Appellate Court. In Bangladesh, two
environmental courts were established in both Dhaka and Chittagong specially
structured to deal with environmental offenses only.
From the mandate of the Act, it is clear that, Environment Courts have been
established only for Department of Environment (DoE). Because primary
responsibility is to file a case and investigation thereof is vested to DoE.
Establishment and smooth functioning of Environment Courts depend on DoE.
Though the Act aimed to establish one or more Environment Court in 64 districts
but in reality, DoE has office not established in all districts.
 Jurisdiction
The environment court have the power to try and dispose of any case respecting
to environmental crime referred by the Special Magistrate as envisaged in section
7. The special magistrates empowered under this act have to refer to the
Environment Court the cases which go beyond their plenary or pecuniary
jurisdiction.
In a case for compensation under the environmental law Environment Court Act
does not confer a person's right to seek remedy directly to the environment court.
At first, he has to seek remedy to the director general under the Environment
Conservation Act 1995 as per sec 17 of the said Act. Because section 7(4) of the
Environment court Act 2010 clearly states that no environment court shall receive
any claim for compensation except on the written report of an inspector or any
other person authorized by the director general.
And where a person presented a written of request to the said Inspector to accept
a claim for compensation and no action was taken within 60 (sixty) days though
such claim deserves to be taken into cognizance for the purpose of trial, then the
Court may directly receive the claim for compensation without such written
report, or may direct the said Inspector to investigate the claim.
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.
Sections 10 and 14 of the Act stipulate that a case must be disposed within 180
days which can be extended to an additional 90 days by submitting a written
explanation. Multiple subsequent steps are envisioned regarding further delays as
well.

Power exercised by Environment Court

The Environment court shall be competent to exercise any power conferred on it
by this Act or any other environmental law as per sec 14(3).
1. Environment Court shall have power to impose penalty for offences under
environmental law violating Environment Court's order under the Act.
 Section 15 of the Bangladesh Environment Conservation Act 1995
provides penalties for offences under the Act.
2. The court can confiscate things involved with the offence pass order or
decree in appropriate cases.
3. And in the same judgment the court can issue directions -
- to the offender or other relevant persons not to repeat or continue any
noxious act,
- to the offender or other relevant person to take remedial or preventive
measures, and in that case, issue direction to submit a report to the director
general on the implementation of the direction.
According to sec 8(2), Violation of these directions shall constitute an
independent offence which is punishable with an imprisonment not exceeding
5(five) years or to a fine not exceeding 5(five) lac taka.

❖ Environment Appellate Court

As per Section 20(2), There shall be one or more Environment Appeal Courts.
The court shall be constituted with one judge of the rank of District Judge. He
shall dispose of cases only under environmental law.
Appeal and When Lies
Any question as to the proceedings, order or judgement or decree of
compensation passed and punishment imposed shall not be enquired into, except
under the provisions of this Act, in any court or before any authority.
As per sec 19(2), a party aggrieved by a judgment decree passed or penalty
imposed by the Environment Court can file an appeal to the Environment Appeal
Court within thirty days of the passing the judgment, decree of compensation or
penalty, or order of dismissal of a civil suit.
An appeal or revision by any aggrieved person against any order of imposing
penalty or granting or denial of bail or forming charge or discharge by the special
magistrate can be filed in Environment Appeal Court.
According to sec 19(5), To file an appeal against a judgment or decree passed by
an Environment Court in a suit for compensation 25% of the decreed amount is
to be deposited with the court which passed the decree.
 Procedure
As per sec 20(3), For the purpose of disposal of appeal relating to offence, the
Environment Appeal Court may exercise all the powers of the Sessions court as
an appellate court under the Code of Criminal Procedure.
As per sec 20(4), For the purpose of an appeal relating to suit for compensation,
the Environment Appeal Court may exercise all powers of an appellate court
under the Code of Civil Procedure
Provision for Compensatory Damages
The act provides for the award of compensatory damages to victims of
environmental harm. The damages can include costs incurred for restoration and
rehabilitation of the environment and compensation for loss of livelihoods.
Strict Liability
The act provides for strict liability of polluters, which means that those who cause
environmental harm will be held liable irrespective of their intention or
negligence.
Penalties and Punishments
The act provides for stringent penalties and punishments for environmental
offenses. The penalties include fines, imprisonment, or both, depending on the
severity of the offense.

Effectiveness of the Environmental Court in Bangladesh

Since the establishment of the court, there were many issues that came up in the
court. in some of them, the Government of the Nation was directly involved as
the complainant in the supreme court. These cases were based on air pollution,
noise pollution, and atmosphere quality against the vehicle pollution. Dr.
Mohiuddin Farooque vs Bangladesh and others, 49 DLR (AD) was a successful
case for the government and restrictions were imposed to deal with the scenario.
Even though it showed the result initially of the establishment.
But however, there were many loopholes for which the defendant often got away
even after committing an offense. From 2003, the Dhaka Divisional Environment
Court started its journey and up to June 2015, nearly 467 cases were filed, 350
cases were resolved and 117 lawsuits are remaining. It is worth noting that there
was only 1 case brought in this court in 2015 (until June). Similar situation in
Chittagong and Sylhet, in Chittagong pending over 250 cases from 350 cases and
in Sylhet 300 cases are pending out of 467 cases.
According to the latest records, till 15 February 2021, five cases have been sent
for trial to the Dhaka environmental court. Last year there had been 29 cases. In
2016 it had been 4, in 2017 it was 6, in 2018 it was 19 and in 2019 a total of 3
cases had been filed.
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.

Loopholes in environment court

These foregoing provisions make for an ambitious undertaking but the courts are
not functioning as envisaged because of some obvious loopholes.
1. Firstly, there is no requirement for a judge of the Environment Court to
possess technical knowledge in the field of environmental law, without
which proper judicial observation cannot be guaranteed. The Judge of the
Environment Court is expected to hear the cases under this Court alongside
his general duties, which makes his job particularly cumbersome.
Moreover, the environment court cannot take actions Suo motu.

2. Furthermore, people's access to environmental justice is seriously strained

by the complex procedural hurdles. The court proceedings can only start in
accordance with the written report of the departmental inspector. However,
in the case of failure of the inspector to complete the investigation within
60 days of a request, the court may order the investigator to investigate the
case or may receive the case directly from individuals without a report. The
problem with the former option is that no time period has been specified
within which the investigation should be completed.

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.
3. Delayed investigation: Sections 10 and 14 of the Act stipulate that a case
must be disposed within 180 days which can be extended to an additional
90 days by submitting a written explanation. Multiple subsequent steps are
envisioned regarding further delays as well. This, along with the
application of the Code of Civil Procedure (CPC) and Code of Criminal
Procedure (CrPC) provisions for the procedural aspects of the cases makes
the law ill-equipped to effect speedy and effective disposal mechanism.

4. The special public prosecutors or the special Government Pleaders

appointed as per provision section 14(4) are not well conversant with the
environmental laws and in some cases, they willingly do not produce
evidences and witnesses to establish the violation of environmental laws.
As a result, the court fails to uphold environmental justice.

5. Absence of witnesses: The witnesses are reluctant to give deposition when

they are required. Even the court issues summons for the hearing, but they
cannot be located.

6. Executive powers of DoE: The prevailing environment protection law

gives the department of environment executive powers. When there is a
court, it is contradictory to have such legal provisions. There needs to be a
balance. He said that executive powers should be curbed and there must be
a system where like a police station, where the complaints can be filed at
the department of environment.

7. No provision for direct cases: Under the prevailing laws, the people or
environmental organizations cannot file cases directly with the
environmental court. They first have to lodge a complaint with the
department of environment. If the matter is not resolved, then the persons
can go to court. The absence of any provision to file a case directly with
the environment court is the main reason why there are so few cases. Under
the prevailing laws, if persons try to file a case directly with the
environment court, they are beset with bureaucratic tangles.

8. Since the environmental offences are of special nature involving scientific

and technical implications of environmental violations, expert knowledge
is specially required to determine the level or presence of pollution. But
the Environment Court Act, 2010 requires no such experts in the
constitution of environmental courts.
 9. The ECA, 2010 has not recognized the substantive or procedural principles
of the environmental jurisprudence e.g. Principle of harm prevention,
precautionary principle, principle of sustainable development, principle of
prior notification and principle of public participation in decision making
process etc. Again, the environment court has no Suo moto or epistolary
jurisdiction to take up an environmental cause and to try it. The court also
lacks in possessing the power of judicial review.

10. From the mandate of the Act, it is clear that, Environment Courts have
been established only for DoE. Because primary responsibility to file a suit/
case and investigation thereof is vested to DoE. Establishment and smooth
functioning of Environment Courts depend on DoE. Though the Act aimed
to establish one or more Environment Court in 64 districts but in reality,
DoE has office only in 21 districts with only one inspector in each office.
So, it is practically impossible to establish Environment Court without
office and manpower of DoE.

Limitation of the Enforcement of the Environmental Law in Bangladesh

In Bangladesh there are limitations to enforce the law of environment.
Bangladesh is an overpopulated country. Bangladesh is the world’s eighth-most
populous country. This is an impediment of enforcing Environmental Law in our
country. Bangladesh has a low literacy rate; the literacy rate is 71%.33This low
literacy rate is another limitation of the enforcement of the Environmental Law.
The most of the people of Bangladesh are not aware about the Environmental law.
The literate people are also not aware about the Law. They have not any
knowledge about the environment right. Sometimes the literate people are
behaving like an illiterate.
The authorities are not caring about the environment and protection of
environment. Sometimes they abuse their power and break the law. Corruption is
an important limitation to enforce the Environmental Law and the other sectorial
law to protect Environment from the Environmental Issues.

Comment
The adoption of the Environment Court Act, 2010 is undoubtedly a milestone in
the journey of environmental protection in Bangladesh. The court established
under the Act should have been designed in such a manner that can overcome the
adversarial drawbacks of civil and criminal courts. But the Act fails to ensure
speedy and effective environmental protection due to some latent defects,
entrusting it with the sole function of trying environmental cause, empowering it
with suo moto and judicial review power, extending its scope of application and
jurisdiction, and removing all other loopholes can make the court competent for
the coherent dispensation of environmental justice in Bangladesh.