Conservation of the environment, improvement of the environmental standards & Control and mitigation of environmental pollution are three key objectives of the Bangladesh Environment Conservation Act (BECA) 1995. In order to effectuate these objectives, this particular legislation establishes department of environment, introduces the post of Director General, provision of environment clearance certificate and so on.
Penalizing the violators, existence of Appellate body to ensure environmental justice, making Bangladesh Environment Conservation Rules 1997, amendments of 2002 & 2010; all are made to carry out better purpose of this Act. But unfortunately due to some lacuna, institutional defects and systematic risks, review of this very parliamentary enactment has become indispensable.
Institutional defects exist in this law. There is no specific provision regarding appointment, scale of qualification, tenure, remuneration and retirement or removal of Director General, member of appellate body and other employees of department of environment. But all of the above are crucial for the independence of the institutions.
Infringement of rule of law
Bangladesh Environment Conservation Act, 1995 conferred unlimited and unfettered powers on the Director General of Department of Environment. Conferment of such unlimited and unfettered powers to such Government executive authority is infringement of rule of law.
International obligation not referred
Unlike the Smoking and Tobacco Products (control) Act 2005, there is no mention of member country’s obligation under International law as to ratification of international instruments on Environment conservation and protection.
Constitutional Mandate not mentioned in Bangladesh Environment Conservation Act
Under Article 18A, there is a constitutional obligation for state to preserve & conserve environment. Right to sound environment is tantamount to right to life (Article-32 of Constitution of Peoples Republic of Bangladesh) by way of judicial interpretation. [Dr. Mohiuddin Farooque Vs Bangladesh 55DLR (2003)69, M. Saleem Ullah Vs Bangladesh 55DLR (2003) 01]
But unlike Wildlife (conservation and safety) Act, 2012, there is no constitutional obligation referred in the Act to conserve the environment as extended meaning of right to life is right to safe and healthy environment [BELA v. Bangladesh & Others, 7 MLR (HC) (2002) 157].
Loopholes in provisions
In case of declaration of ecologically critical area, Government satisfaction is subjective satisfaction and no certain time-limit is enshrined for taking measure in such area. Relaxation of restrictions on cutting hill, filling up of wetland by invoking lame excuse of so called inevitable national interest, is another loophole.
In M. Farooque v. Bangladesh [49 DLR (AD) 1997], project of the huge Flood Action Plan (FAP 20) in Bangladesh was questioned on this very point of national interest. A notice is to be given to the industry prior under Section 11(3) to entry but does not specify a minimum period of notice. The issue of frequency of fine to be imposed in case of continued non-compliance is not clear from BECA’95 and BECR’97.
In order to make this Act more effective, there is no doubt regarding removal of ambiguities and lacuna in legal provisions. Specific provision regarding appointment, scale of qualification, tenure, remuneration and retirement or removal of Director General, member of appellate body and other employees of department of environment, required to be incorporated in Act by way of amendment.
The principle of ‘sustainable development‘ requires legal recognition in this Act. People’s participation in environmental decision making must be ensured and protected by law. Mobile Court can be delegated some powers to implement this law. Environmental education for all need to be ensured in better implementation of this Act.
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Related Article: A Critical Appraisal of Bangladesh Environment Conservation Act,1995 and Rules,1997