views

Common people’s access to the environment courts of Bangladesh: an appraisal

In response to various international conventions, treaties and protocols Bangladesh has developed environmental legal regime including environmental governance institutions. From 2000, after the enactment of the Environment Court Act (ECA),specialized environmental court system has been introduced in the legal system of Bangladesh.

In pursuance of the ECA, 2000, vide a gazette notification dated 6 March, 2002, two special courts with Joint District Judges were set up in Dhaka and Chittagong division. An Environment Appellate Court was established at Dhaka for the whole Bangladesh. The Act was amended in 2002 to allow the Joint District Judge/s for a Division to act as the judge of an Environment Court in addition to his/her ordinary functions. From 2005 Joint District Judge’s Court of Sylhet is functioning as Environment Court.

In 2010 a fresh ECA has been passed and the Act of 2000 has been repealed.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 no more Environment Court has been established till now except the former three Courts and an Appellate Court. 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. Except these two types of Courts there are Executive Magistrates functioning under the Mobile Court Act, 2009. Case filing scenario of 3 Environment Courts and Environment Appellate Court: Where the ordinary courts of Bangladesh are over flooded with excessive suits/cases and burdened with heavy loads but paucity of cases in the Environment Courts is really ill-matched. Environmental problems of Bangladesh are increasing day by day but why the common people are not coming towards Environment Courts? Following are the important causes behind the people’s aversion to the Environment Courts:

1.  This Act has not recognized the common people’s right of access to Environment Courts directly. Where Sec. 17 of the Bangladesh Environment Conservation Act (BECA), 1995 says that, where a person, group of persons or the public suffers loss due to violation of a provision of this Act or the rules made thereunder that person, group of persons, the public or the Director Generalon behalf of them may file a suit for compensation before the Environment Court; but Sec. 7(4) of ECA, 2010 imposes a bar that, no Environment Court shall receive any claim for compensation under environmental law except on the written report of an Inspector of the Department of Environment (DoE). Even Sec. 6(3) of ECA, 2010 says that, no Special Magistrate Court shall take cognizance of an offence except on the written report of an Inspector of DoE. There is an exception, if the Environment Court/Special Magistrate Court is satisfied that a person presented a written request to the said Inspector  and no action was taken within 60(sixty) days after such request, and that such claim/complain deserves to be taken into cognizance for the purpose of trail, then the Court may, after giving the Inspector or the Director General a reasonable opportunity of being heard, directly receive the claim for compensation/complain without such written report.

2. 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. It is practically impossible to establish Environment Court without office and manpower of DoE.

3. Jurisdiction of Environment Court is not clear. Environment Court can only entertain offences and claims for compensation under ‘environmental law’; Sec. 2(c) of the Act defines ‘environmental law’ to include the BECA, 1995 and such other laws as may be subsequently be specified by the Government.But in last 16 years no gazette notification has been issued to include any other Act. Environment Court has no jurisdiction to try offences relating to forest-forest resources, wild life-biodiversity, fisheries, water resource and other natural resources.

4. Except legal matters a lot of socio-economic matters are connected with environmental justice. Most of the cases polluters belong the upper class of society, they have money and muscle power.
On the other hand the victims of environmental pollution/degradation are deprived andpoor,usually they don’t dare to file suit/case against those mighty polluters. Poor litigants always feel fear and want of justice.

5. As per ECA, Environment Courts follow the Code of Civil Procedure, the Code of Criminal Procedure and the Evidence Act in its judicial functions. Under these existing laws complainant has to prove his/her case and s/he has to bring evidences on behalf of the case. Proving environmental pollution requires technical knowledge and institutional assistance. Common people has no such knowledge; and assistance are not available for them. So the people has lost their interest on Environment Courts for its complicated and lengthy process of filing suit/case and ordinary procedure of trial.

In Bangladesh protection and improvement of environment is intimately related with the protection of people’s lives and livelihoods. To ensure sustainable development for the present and future generations, we need people oriented Environment Courts with exclusive jurisdiction on all environmental matters. This Act should be amended in light with the experiences of successful environment court systems of the world to ensure direct access of the common people.

Imtiaz Ahmed Sajal

LLM Student in International Law at South Asian (SAARC) University, New Delhi, India
Imtiaz Ahmed Sajal is currently pursuing LLM in International Law at South Asian (SAARC) University, New Delhi, India. He serves as an Editor in Chief of the Bangladesh Law Digest (BDLD).
He is more interested to do research on different environmental issues in Bangladesh. He has already written a good number of articles on environment adjudication of Bangladesh and some of them have already been published in various law journals and dailies.

Comments