Law vision
Only adapting law is not enough to protect the environment
Bikash Kumar Basak
The economic development of a country is closely related to environment but although the environmental degradation had started long back in the post industrial revolution era, only recently this has become the pivot of attention at national and international level. Special emphasis has been given by the government to the protection and conservation of environment. The Constitution of Bangladesh ensures the right to life and personal liberty and also categorizes the right to a decent environment as a fundamental one. There are number of Laws and Regulations available to protect the environment.
The Environment Policy, 1992
Basically in Bangladesh, the statutory laws and by-laws are the main sources of environmental legislation. The Environment Pollution Control Ordinance, 1977 was the first legal enactment specially on environment while later on, in order to provide specific and appropriate guidelines in tandem with maintaining the momentum of development programmes, the government became interested to formulate an environment policy. As a result, in 1992 the Environment Policy was adopted to:
* maintain ecological balance and ensure sustainable development through protection and improvement of environment,
*
protect the country against different natural disasters,
*identify and regulate activities which pollute and degrade the environment
*
ensure development that is environmentally sound for all sectors,
*ensure sustainable and environmentally sound management of all natural resources, *involve actively with all international initiatives regarding environmental issues.
This policy is undoubtedly a unique one which covers fifteen sectors so far of the economy including agriculture, fisheries, education, communication and health. But it is very sorry to say that no proper application of the policy by the parties concerned has been apparent as yet.
The Environment Conservation Act, 1995
Later on, the focus was shifted from “pollution-control approach” to “conservation approach” with the effect of the enactment of the 'Environment Conservation Act' 1995 and subsequent rules of 1997. According to Section 2, Clause f of the Act, “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.”
So, it appears obvious that the matter of conservation of environment is confined to the pollution-control while other countries all over the world in this 21st century are more conscious about shifting their emphasis to the sustainable development and resource management besides pollution-control.
As per the Act, the government, upon its satisfaction, is empowered to declare any particular area as 'ecologically critical area (ECA)' and to specify the activities or processes that cannot be initiated or continued in that ecologically critical area (Section 5 of the Environment Conservation Act, 1995). Environment protection, however, means not only to declare a site as ecologically critical area (ECA) and prohibit some activities thereat, rather improvement of that area through some result-oriented measures as well.
The Environment Conservation Act of 1995 also bars filing of any cases against the Director General and official of the Department of Environment. As per Section 18 of the Environment Conservation Act, “No civil or criminal case or other legal proceedings may be instituted against the Government, Director General or any other person of the Department for any action which caused or is likely to cause injury to any person, if such action is taken in good faith under this Act or rules.”
In addition, if it is established that the DG was duly approached but failed to take action within sixty days from the receipt of application, the court may take into cognizance the application only after hearing the DG or his authorised officer (Section 17 of the Environment Conservation Act, 1995). Such a system for filing cases against a wrongdoer is not an effective and adequately prompt one for taking action. It hampers the ultimate cause of action and general citizens also become averse to take any legal step with a view to protecting the environment from any hazardous or harmful activities.
The Environment Court Act, 2000
The Environment Conservation Act, 1995 was not implemented to a large extent because of ambiguity with regard to its administration and also for the lack of its judicial functionality. Considering this, the Environment Court Act, 2000 was passed on April 10, 2000 followed by the amendment on March 6, 2002. As per section 4 of the Environment Court Act, 2000, government shall establish one or more Environment Courts in every division mainly to deal with environmental offences (offences under Environment Court Act, 2000 or any other law specified in the official gazette and the rules made thereunder).
The more interesting matter, here in this regard, to be mentioned is that though the Court was established to deal with offences relating to environment but the suits in this Court could be introduced solely by the DoE unless a general person succeeds in satisfying the Court that the DoE has not duly acted upon his/her complaint within 60 days from lodging it (Section 5(3) of the Environment Court Act, 2000). Furthermore, filing even of a reasonable complaint could not lead to any civil or criminal responsibility for the DoE if it acted in 'good faith'. It is notable that though the term 'good faith' has become a crucial one here in this Act, there is no specific definition of the term any where of the Act and for this ambiguity, the DoE or its officials always enjoy the benefit of escaping offence, if any, and depriving common people of any remedy. In addition, the appellate authority is comprised of the officers of the DoE or MoEF (Ministry of Environment and Forest) and the decision of that appellate body is final and no option left to challenge that in any court.
Concluding remarks
It is true that the ultimate objective of the establishment of the Environment Court is to ensure speedy trial of the environmental cases, but the existing hassles and botherations relating to initiation of any grievance or claim for compensation surely can vitiate its main purpose. After all (a) absence of appropriate documentation system, (b) abuse of power by and insincerity and negligence of the DoE or its authorized officers, (c) absence of scope for inclusion of any environment expert in the court, (d) lack of proper and regular monitoring of the inspection activities, (e) uncertainties or ambiguities in the provisions in expressing powers, functions, authorities and jurisdiction of the court (both administrative and judicial), (f) huge expenditure and delay as associated with court proceedings, (g) lack of awareness about environmental rights and duties among the common people, (h) lack of commitment among the politicians with regards to environment protection keep the common people far away from the court premises even being the victims of environment degradation.
Mere adapting law is not enough to protect our environment except a convenient and straight system to reach the court for the purpose of seeking remedy against the offence is ensured to the common people.
The writer is an assistant programme officer of Bangladesh Occupational Safety, Health and Environment Foundation (OSHE).
