views

Reflections on environmental adjudication regime

Due to a peculiar geo-economic stand Bangladesh is facing a double jeopardy in terms of environmental vulnerability i.e. effect of global climate change coupled with the maladies annexed with indiscriminate industrialisation and urbanisation. Against this backdrop, only a dynamic, inclusive and effective environmental governance regime can strike a balance between economic development and ecological order.

Environment court, as a tool of environmental governance in the context of Bangladesh, must be designed in such a way which can overcome the traditional procedural drawbacks of civil or criminal courts and play an innovative role as a means to reach the end of transcendent environmental justice.

Given the scientific overtones of environmental violations, presence of expert members, who can treat scientific and technical evidence, in the environmental adjudication panel, has become inevitable. Section 5(2) of the National Green Tribunal Act (NGTA), 2010 (India) and section 247 & 254 of the New Zealand Resource Management Act 1991 provide for such provisions of environmental technical experts in their environmental adjudication foray. Ironically, the Environment Court Act (ECA) 2010 requires no such experts in our environmental courts.

The environment court, as portrayed in ECA, 2010, has, at least twofold limitations in terms of jurisdiction namely, lack of integrated jurisdictions over the laws pari materia and insufficient penal policy. Apparently, the court can exercise jurisdiction only in the matters arising out of the Environment Conservation Act 1995, disregarding a bulk of environmental laws. An integrated jurisdiction over all environmental laws is required for the coherent dispensation of justice. A harmonious reading of section 2© of the ECA 2010 read with section15 of the Environment Conservation Act 1995, substantiates that the court can impose the maximum penalty of taka ten lac both for natural and juristic persons irrespective of the gravity of offence or torts. The NGTA of India provides for maximum penalty of 10 crore and 25 crore rupees for a natural person and legal person respectively.

Given the success of environmental public interest litigations in Bangladesh, a forum having the power of judicial review and whose raison d’ etre would be environmental adjudication might have been successful in environmental statesmanship. The New South Wales environment court posses the power of judicial review as per the provisions of the NSW LECA, 1979. The New Zealand Environment court is a court of record. Our environment court neither has the power of judicial review nor is a court of record.

As per section 4 of the ECA, 2010 the joint- district judges are persona designata   in the environmental courts as judges. Remarkably, their role as part-time judges in environment courts ipso facto proves the ‘window dressing approach’ of the government towards environmental governance regime. Given the deadlock of cases in civil courts, a joint-district judge cannot perform functions of both offices i.e. as a civil court judge and a judge of environment court unless he is Dworkin’s ‘Hercules’.

Section17 of the ECA, 1995 read with section 6(3) and 7(4) of the Environment Court Act 2010 transpires that a court cannot take cognizance of a cause on the basis of averments made by an aggrieved person without previous authorization of an executive i.e. the inspector of the DoE. This is a clear legislative hegemony to executive over the judiciary, necessarily resulting in bar to access to justice.

In this era of epistolary jurisdiction in environmental governance, procedural requirements to access to justice e.g. rule of standing have undergone epoch-making liberalization. The statute of New South Wales provides “any person” may sue to restrain a violation of the environmental law (McAllister 2009, 64). More interestingly, Philippines new rules for environmental cases provides “any Filipino citizen” to sue for the enforcement of any environmental law “in representation of others, including minors or generations yet unborn” (Philippines/Rules, rule 2, sections 4 and 5). In view of these provisions, the provision of executive intervention in access to justice process, in the ECA, 2010 seems to be anachronistic.

Section 14(1) and 14(6) of the ECA of 2010 have respectively provided for application of CPC, 1908 and CrPC, 1898 to the trial and disposal of environmental suits and cases. Both of these procedural laws have been identified as inaccessible, non-participatory, protracted and expensive. Remarkably, the NGT Act, 2010 of India respectively provides in section 19(1) and 19(3) that the Tribunal is not bound by the procedure laid down in CPC or CrPC and the rules of evidence contained in the Indian Evidence Act 1872. Apparently the Indian legislation has provided for a ‘wiggle room’ to the tribunal in following orthodox procedures for the sake of transcendent environment justice.

The ECA has made no reference to the peremptory norms of international environmental law e.g. the principle of sustainable development, intergenerational equity, polluter pays principle and precautionary principle. These principles are in the core of the environmental jurisprudence worldwide. Section 20 of the NGTA (India) has made express reference to these principles and requires the tribunal to apply them in adjudication. Express legislative adoption of these principles could have been used as beacon-lights by the environment court, given the ‘pipeline’ environmental jurisprudence of Bangladesh.

Md. Ahsan Habib

Md. Ahsan Habib

Lecturer at Eastern University, Bangladesh
Md. Ahsan Habib is an adviser and contributor to Bangladesh Law Digest. He did his LLB and LLM from University of Dhaka. He is currently working as a lecture in Law at Eastern University, Bangladesh.
Md. Ahsan Habib

Comments