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January 18, 2004

Protecting wild life

The need for effective laws

Md. Zahurul Haq

On September 11, 2003 a number of newspapers in our country published news on a disparate judgment of the court. This is for the first time in the history of the criminal law of Bangladesh that a verdict has been passed as regards killing of tigers. Key motive of those people who have been sentenced to 14-year imprisonment was to make unlawful profit by selling Tiger- skin and other recognisable parts of tiger's body in the black market, as the court observed. The first verdict in this relation does not necessarily mean that it was the first crime of this kind so far the tigers of Bangladesh are concerned. According to another newsreport, (daily Prothom Alo, 29 May 2000, page 5) large number of tigers in Sundarbans are being killed for selling at a very high price in the international black market.

Not only national, Bangladesh is under international obligation to take effective action to prevent any such illicit attempt. In February 1982, Bangladesh acceded to Convention on International Trade in Endangered Species (CITES) of wild Fauna and Flora. However, so far no apposite law has yet been developed in Bangladesh that could effectively address the objectives of CITES. In absence of any specific legislation to implement CITES, endangered species are protected in our country under Bangladesh 'Wildlife Preservation (Amendment) Act 1974'. Hunting and capturing Tiger (listed on the Third Schedule as a protected animal) is prohibited unless an individual animal becomes a threat to public life. Tigers are considered the property of government and sale, acquisition and/or possession of Tigers and/or Tiger trophies require a permit or Certificate of Lawful Possession from the government. It is often alleged that few dishonest forest officers or workers, employed for the protection and management of forest and its natural resources, work in alliance with the poachers to assist their illegal activities. Then what legal provisions lie to punish the offenders who might be held responsible within this definition?

According to Wild Life Preservation Act (1974), violations of the Act is subject to imprisonment for six months to one year and/or fines of Tk 500-1000 (US$ 12-24). Interference with an Officer attempting to discharge his duties is subject to a fine of Tk 1000-2000 (US$ 24-48) and one to two years of imprisonment. The Act also specifies, "Nothing contained in this Act shall be deemed to prevent any person from being prosecuted under any other law… or from being liable under any other law to any higher punishment or penalty than that provided by this Act". Therefore, offences under this Act are also punishable under any other law if applicable. In the above-mentioned case, offenders were charged with the offence of destructing government property by 'Sabotage' and tried under Section 15 (1) of the Special Power Act, 1974. Under the said provision, the offenders were sentenced to maximum punishment, 14 years of rigorous imprisonment and a fine of Tk. 20000.

When an offender is not punished under the most relevant law, the prima facie reasoning is that the said law is inadequate by itself and situation requires taking help from another law. This is certainly undesirable that a particular law is so insufficient that it cannot provide even a reasonable level of strictness to achieve its own goal. Bangladesh acceded CITES about eight years later she had enacted the Wild Life Preservation Act, conversely, no perceptible change has so far been introduced in the previous law that could be considered apt to implement the mechanisms contained in CITES.

Bangladesh is one of the signatory states of the Convention of Biological Diversity (CBD). Therefore, we are under a general obligation to take necessary step to protect forests, rivers, seashores and other habitats for the preservation of Biological Diversity. Under CITES, we are under specific obligation to control trade in endangered species. Unlike national law, international laws in the nature of 'Agreement', 'Pact', 'Treaty' or 'Convention' is not directly applicable through any law-enforcing agency in Bangladesh. Our constitutional provisions refer that "All treaties with foreign countries shall be submitted to the President, who shall cause them to be laid before Parliament" (Article 145A.). Any international agreement, therefore, requires to be accepted by the parliament and can only be enforced through national laws.

For instance, Bangladesh has signed the Convention on Biological Diversity (CBD) on 03/05/1994. Recently (in 2003) the government has initiated with IUCN (International Conservation Union) to make a National Biodiversity Strategy and Action Plan (NBSAP) so that the provisions of CBD can be implemented in Bangladesh. This plan will positively persuade any future enactment of the parliament as regards environmental issues. We had our Wildlife Preservation Act enacted before we entered in to CITES. At this moment, to tag along the provisions of CITES, we must bring necessary amendment to the existing legal provisions. Where necessary, we have to enact new laws as well.

With the increase in population, there is greater pressure on land. Forests are being destroyed as human habitations expand, thereby shrinking the habitats of our wild life. There is also clandestine international trade in wildlife and wildlife products, which is a major cause for their wanton destruction. Meanwhile, the growing consumer society and the increasing emphasis on luxury and vanity items have caused the exploitation of wildlife in the name of industrial progress.

According to their vulnerability and severity of extinction, species are included in different Appendixes of CITES. Some of the species are listed in Appendix I, existence of which is seriously threatened with extinction and, may be affected further by trade. Appendix II includes the species, which are not threatened as seriously as that of Appendix I, but they will become so if trade in such specimens is not taken under strict control. Appendix III contains those species that are protected in at least one country, which asks all other CITES parties for assistance in controlling the trade.

In India, there are plenty of laws dealing with environmental protection both before and after independence. Among them number of statutes are in force directly to deal with Wildlife protection. As one of the signatory state to CITES, India has taken various steps to cope with the emerging challenges. In Bangladesh, however, we are still dependant on old legal provisions. It is very much evident when we see that the very first case regarding illegal killing of Tigers couldn't be tried under the appropriate law, rather we had to take resort to country's most debated law, the Special Power Act, 1974.

Bangladesh needs to work in collaboration with international bodies under international obligation. Most of the trades in different endangered species are targeted to international black markets; therefore, international cooperation is a must. If we succeed to control market, we will obviously succeed to achieve our desired goal. If there is no market; there is no product.

Md. Zahurul Haq is student of LL.M, Department of Law, Dhaka University.