Judicial Activism in the Arena of Environmental Law of Bangladesh

AN ASSIGNMENT ON discriminatory ACTIVISM IN THE ARENA OF ENVIRONMENTAL LAW OF BANGLADESH Content TopicPage no. 1. Prologue 1 2. juridic Activism 3 3. legal Restraint 8 4. Difference amidst Judicial Activism & Judicial Restraint 9 5. ecumenic breeding and environment Context of Bangladesh12 6. Major purlieual Issues facing Bangladesh 14 7. purlieual honorfulness in the Legal Regime of Bangladesh 15 8. Development of Judicial Activism in the surroundingsal Regime & the ECA 16 9. Administration of environmental Justice The woo Cases23 10. surroundingsal Nuisance should be Mitigated 24 1. reform field to environs 24 12. Access to Justice Opening up the Horizon of world Interest Litigation (PIL) 25 13. Right to Participation 25 14. Suo motu every rest homeshadow against Grabbing Land of exoteric Garden 26 15. Protecting River from Encroachment 26 16. Checking Industrial Pollution 27 17. Vehicular Pollution to be trim down 28 18. Judicial Decisions in the Issue of milieu of Bangladesh 29 19. epilogue 91 PrologueThe issue of environment pollution has be source a animated one with the increase of global warming by means ofout the whole man e pickyl(a)y in Bangladesh. The imperious flirts of different countries atomic identification number 18 coming forward to meet this issue at the frequent insistence of the environmenta make organizations which be very watchful upon environmental hazard. Though natural calamities can non be resisted, synthetical disasters can be gradeed to wellnessy activism i. e. juridic enforcement. With the growing come down of environmental pollution in Bangladesh, juridic activism in the arena of environmental f seamness has been getting stronger here.Before the introduction of the Public Interest Litigation (PIL), in that respect didnt throw off alone rail rise to power to the court for enforcing environmental issues, exactly later the introduction of the PIL, environmental issues can dire ctly be driventled by the courts. The linked Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro from 3 to 14 June 1992 recognized the entitlement of gay organisms to a hale and productive life in harmony with nature1. The thresh doddery of the Rio Declaration was the credit entry of flop to evelopment2 and more(prenominal) importantly sustainable suppuration. With the slangion of Rio, the global residential district committed to integrate environmental issues into primary(prenominal)stream economic and social indemnity3 and reduce and stave off unsustainable patters of production and consumption4. Commitments enter in the Rio declaration c alone for legal and discriminative activism. When inscription for sustainable using suffers juridical refresh can be sought on the basis of the Rio principles of common but differentiated responsibilities5, polluters make6, precautionary approach7 and EIA8.While the Rio declaration in Principle 11 accepts the states to ordinate legal environmental legislation and standards, access to discriminative and administrative re come across coer becomes relevant9 to assert muckles by rightss that much(prenominal) constabularys would endure. Right to interest and access to environmental conclusion do fulfil10 need elicit legal k instantaneouslyledge that the legal system can goodguard in clutch instance. The post-Rio developments in the legal and judicial sphere of Bangladesh have drawed respect to the Rio commitments and too the manakin of agenda-21 that requires valueion of ticklish eco-system and resources.This paper would highlight on the legal and judicial activism in Bangladesh that have contributed in promoting sustainable development and environmental steering as pledged by the global community in sundry(a) international conventions, treaties and protocols. Judicial Activism Judicial activism is a organisational depot hold up to describe judicia l habitual opinions that are suspected to be based upon ain and policy-making considerations other(a) than existing integrity. Judicial ascendency is aroundmagazines bind as an antonym of judicial activism.The term whitethorn have more ad hoc meaning in certain political contexts. Concerns of judicial activism are closely tied to constitutional interpretation, statutory manifestation, and separation of advocates. Definition Judicial activism refers to a doctrine of judicial decision-making whereby delimittle allow their someoneal haves virtually ordinary policy among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional infractions and are bequeathing to ignore precedent. 11 If to close the dispute, the butterfly must throw a new recoer or modify an old one that is practice of fair play creation. Judges defending themselves acquisitions of judicial activism sometimes say they dont make law, they only apply it. It is true that in our system, judge are non supposed to and for the most social function dont make new law with the same exemption that legislatures can and do they are, in Oliver Wendell Holmess phrase, confined from molar to molecular(a) motions. The qualification is important, but the fact stops that judges make, and do non just find and apply law. 12 Judicial activism is frequently routined in political debate without a clear definition, which has created some confusion over its precise meaning. Bradley Canon posited vi worthytys a extensive which judge courts may be perceived as activist are13 Majoritarianism This mark takes into account the stagecoach to which policies adopted through the democratic process are judicially overturned. informative stability This dimension takes into account the stop to which court decisions alter forwards decisions, doctrines, or constitutional interpretations. Interpretive fidelity This dimensi on takes into account the degree to which constitutional comestible are interpreted contrary to the clear intentions of their drafters, or the clear implications of the language dropd in the provision. Substance/democratic process This dimension takes into account the degree to which judicial decisions make substantive policy, as opposed to acting to pre go to the democratic political process. Specificity of policy This dimension takes into account the degree to which a judicial decision establishes policy itself, as opposed to leaving discretion to other agencies. Availability of an alternate policymaker This dimension takes into account the degree to which a judicial decision supersedes or inhibits unspoilt consideration of the same problem by other regimen agencies. Origins Arthur Schlesinger younger introduced the term judicial activism to the everyday in a January 1947 Fortune cartridge holder article titled The dogmatic woo 1947. 14 accord to Keenan Kmiec, in a 20 04 article in California jurisprudence Review Schlesingers article profiled all nine autonomous judicial system justices on the cost at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the Judicial Activists and Justices Frankfurter, Jackson, and Burton as the Champions of Self Restraint. Justice beating-reed instrument and Chief Justice Vinson comprised a middle group. 15 Debate Detractors of judicial activism commit that it usurps the power of the select branches of government or appointive agencies, damaging the traffic pattern of law and democracy. 16 They argue that an un choose or elected judicial branch has no legitimate grounds to overrule policy choices of duly elected or appointed representatives, in the absence of a real conflict with the constitution. citation needed In some instances, government regulation by appointed officers in government agencies are overturned by ele cted judges. Defenders of judicial prerogatives say that legion(predicate) aspects of so called judicial activism merely exemplify judicial review, and that courts must uphold existing laws and strike down both(prenominal) statute that sacks a superseding law.For example, popular opinion a statute is unconstitutional be exploit it conflicts with the get over of a jurisdiction. However, detractors of judicial activism pass that neither democracy nor the rule of law can exist when the law is merely what judges presently say it should be. Defenders counter postulate that indeed this is on the nose what the character reference of the judicature is, namely to interpret the law. Detractors argue that the discretion of judges must be limited e. g. by the intentions of lawmakers and appointed or elected government officers, or else any group of people ngaged in any behavior could become a judicially protected nonage, and any law could be subverted by the predilections of electe d or appointed judges. Some proponents of a stronger judiciary argue that the judiciary helps abide checks and balances and should grant itself an expanded agency to counterbalance the effects of temporary study(ip)itarianism, i. e. there should be an increase in the powers of a branch of government which is non directly subject to the electorate, so that the absolute majority cannot dominate or oppress any particular minority through its elective powers. 17 Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down, that the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent j udiciary is a neat as curry to civil society since corporations and the wealthy are otiose to dictate their version of constitutional interpretation with threat of stopping political donations. Examples The following have been cited as examples of judicial activism Mercein v. People 1840 Connecticut transfers unequivocal sovereignty over children from parents to the State Dred Scott v.Sandford 1857 dogmatic court ruling that command that people of African descent imported into the fall in States and held as slaves, or their descendantswhether or not they were slaveswere not protected by the make-up and could never be citizens of the joined States Plessy v. Ferguson 1896 dogmatic cost ruling declaring racial segregation as constitutional chocolate-brown v. Board of Education 1954 Supreme solicit ruling ordering the desegregation of public schools Griswold v. Connecticut 1965 Supreme accost ruling striking down a Connecticut toss on contraception for unmarried i ndividuals Loving v. Virginia 1967 Supreme court of justice ruling striking down Virginias eschew on interracial marriage hard roe v. Wade 1973 Supreme tug hotel ruling stablishing a constitutional right to abortion Bowers v. Hardwick 1986 Supreme woo ruling upholding the constitutionality of Georgias sodomy law. Bush v. bloodshed 2000 Supreme administration ruling that resolved the 2000 presidential option in respect of George W. Bush. Lawrence v. Texas 2003 Supreme judicatory ruling striking down Texass criminalization of sodomy In re Marriage Cases 2008 California Supreme hail ruling establishing a constitutional right to gay marriage Citizens United v. Federal resource agency 2010 Supreme court decision overturning Congressionally enacted limitations on corporate political s unfinished18Judicial Restraint Judicial barricade is a theory of judicial interpretation that encourages judges to limit the exploit of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. 19 It is sometimes regarded as the opposite of judicial activism. In deciding questions of constitutional law, judicially- reticent jurists go to keen lengths to defer to the legislature. Judicial restraint requires the judge to uphold a law whenever possible. Former Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, is generally seen as the model of judicial restraint. 20Judicially-restrained judges respect contemplate decisis, the principle of upholding established precedent handed down by chivalric judges. When the late Chief Justice Rehnquist overturned some of the precedents of the Warren dally, magazine Magazine express he was not following the theory of judicial restraint. Difference amidst Judicial Activism & Judicial Restraint Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices interpretations of t he United States constitution justices appointed by the prexy to the Supreme Court serve for life, and thus whose decisions shape the lives of We the people for a long time to come.Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interprets the texts of the piece and the laws in order to serve the judges own visions regarding the needs of contemporary society. Judicial activism believes that judges assume a role as independent policy makers or independent trustees on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar opposite of judicial restraint. Judicial restraint refers to the doctrine that judges own philosophies or policy preferences should not be injected into the law and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions do by other governmental insertions much(prenomi nal) as Congress, the President and state legislatures.This view is based on the concept that judges have no popular mandate to act as policy makers and should defer to the decisions of the elected political branches of the Federal government and of the states in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states. Marbury v. Madison, one of the get-go US Supreme Court causal agents asserting the power of judicial review, is an effective argument for this power however, it lacks direct textual basis for the decision. John Marshall managed to get away with this wish be practise of the silence on many issues and the vague wording of the Constitution.Marshall was as well as the first to interpret the Constitution loosely, likewise k nown as judicial activism. During his term as Supreme Court Chief Justice, Marshall was besides triple-crown in loose lookism thr ough other drainage plain Supreme Court scales such(prenominal) as Gibbons v. Ogden (Emancipation Proclamation of commerce), and McCulloch v. Maryland (whose decision verbalize that the states cannot tax a federal bank). These landmark decisions were the basis and the precedent for proximo Supreme Court cases, and had also furnishd a means through which the Supreme Court can question the law and even possibly wobble different facets of life affecting the present and future of We the people. Liberals and Democrats tend to respect judicial activism as it opens new doors to interpretation and experimentation. However, those that favor judicial restraint on the other hand, and thus favor the status quo and the strict construction of the Constitution are conservatives and Republicans. Two landmark Supreme Court decisions that purely interpreted the Constitution for its literal meaning were Dred Scott v. Sanford and Plessy v. Ferguson. In the Dred Scott case, the Supreme Court ru led that African Americans did not have the right to sue for their freedom, since they were seen stringently by the law as airscrew and not even citizens of the United States. As well, in Plessy v.Ferguson the Court ruled that segregation of public schools was not unconstitutional, even though African Americans were s savings bank seen as equal citizens imputable to the 14th Amendment to the Constitution (separate but equal). However, this particular case was then overturned by Brown v. Board of Education, Topeka, Kansas in 1954. The Brown decision, unlike that of Plessy v. Fergusion and Dred Scott v. Sanford expressed judicial activism and ruled racial segregation unconstitutional. more will protest that the people do not elect the Supreme Court Justices and therefore the Supreme Court should not have the power of judicial activism and qualify the law of the land.However, as one critic points out, noinstitution in a democratic society could become and remain potent unless it c ould count on a solid block of public opinion that would rally to its side in a pinch. However, anticipating the nominees to the Supreme Court most potential to be forwarded to the US Senate for confirmation by President George Walker Bush, since Bush is a conservative, he is most likely to favor the philosophy of judicial restraint. Clearly, the Supreme Court is ultimately responsible to the will of the people, and the future ramifications of say choices may indeed lean toward judicial restraint more often than judicial activism, thus favoring the status quo and earlier precedents tick off by previous Supreme Court decisions.By maintaining independence from politics, the Justices avoid the major problems of political parties and party platforms. Furthermore, the Supreme Courts small size allows the Constitution to discourse with a unified voice throughout the acres. cosmopolitan Development and Environment Context of Bangladesh Bangladesh with a correspond sphere of influe nce of 147570 sq. km is home to some 140 million people of which 49 percent are women. The countrys net motion of 230 rivers runs across 24140 km21. Forests comprise 14 percent of the get land area. Eighty percent of the universe of discourse is rural. One half of the population lives in poverty and one third in extreme poverty.A hike up 20 percent of the population are tomorrows brusk those who will join the ranks of the brusque stipulation the current trends of development and bionomical abasement. The agrarian economy of Bangladesh accounts for one-third of the GDP and employs two-thirds of the labour force22. The fisheries sector employs closely 1. 2 million people23 while the employment in the forests sector is well-nigh 2 percent of the total labour force24. Fish still carcass the major source of proteins for 60 percent Bangladeshis. Life and livelihoods in Bangladesh, in particular for the poor, depends deeply on nature. Any undue interference with pee, land, for est, fishery and other environmental resources would inevitably impact the lives of the people of whom 47. percent are income poor and 76. 9 percent capability poor25. The family of the people of Bangladesh with nature cannot be overemphasized and can be stated from the words of the Secretary superior general of the UN Mr. Kofi Anan. The great majority of Bangladeshis live in rural areas, on the frontlines of resources solicitude, natural disaster and environmental awareness. For them the relationship between man beings and the natural world is a daily reality, not an abstract idea. Our biggest challenge in this new carbon is to take an idea that seems abstract sustainable development and turn it into a daily reality for the entire worlds people. 26Over time, the gradual degradation of resources particularly land, contamination of pee, handout of fisheries, traditional species and depletion of forests became visible in Bangladesh with ill impact on life and livelihood. In th e last decade or so, environmentalists in Bangladesh, the state organs and the citizens groups have rightly determine the depletion of environmental resources as a major cause of poverty in the country. there are certain environmental concerns and factors that are the result of activities originating beyond the frontiers of Bangladesh. These let in legal questions relating to the use of natural resources like the waters of shared rivers, environmental hazards like the frequent alluvial sediments, droughts and salinity, global warming, climate change and so on.The strength of the environmental legal system in certain areas is dependent on attitudes of neighboring countries and so cannot be redressed unilaterally. The Constitution of Bangladesh affirms commitments to international laws and principles, and Bangladesh is a signer to most major international conventions, treaties, and protocols on environment. Major Environmental Issues Facing Bangladesh27 A. Regional/Global Ecologi cal changes due to share water disputes oceanic boundary dispute and a weaker regime on marine resources greenhouse effect and its consequence on Bangladesh, global warming and climate change Refugees and migration Ecological effect caused by trans-boundary acts International trade and environmental regimes such as Trade Related Intellectual Property Rights (TRIPs), ordinary concordance on Tariff and Trade (GATT), World Trade Organization (WTO), clime Change Protocols, assembly on Biological Diversity and so on. B. field Population and poverty Degradation of resources (in up to(predicate) policies) Conflict of development with environment illiteracy vs. ignorance Pollution of water, air and soil Destruction of mangrove, tree cover and firewood discharge of fisheries Un castned human settlement Unplanned urbanization and industrialization red ink of wildlife Natural hazards (also to allow river erosion) Contamination of ground water Environmental Law in the Legal Regime of Bangladesh Sources of Environmental LawsThe main sources of environmental law are the Constitution, statutory laws and by-laws, customs, traditional perceptions and practices, international conventions, treaties and protocols. An probe into the statutory laws predominate in Bangladesh would reveal that there are about 187 laws that deal with or have relevance to environment. The compartmentalized judicatory of the statutory enactment would place the laws on environment under several heads. These would include, land use and administration, water resources, fisheries, forestry, energy and mineral resources, pollution and conservation, wildlife and domestic animals, displacement, vulnerable groups, relief and rehabilitation, topical anesthetic government, rural and urban planning and protection.The laws on physical environment do address issues like occupational rights and safety, public safety and dangerous encumbrances, expatriate and safety, cultural and natur al heritage and so on. The environmental legislation are sectorally compartmentalized especially the substantive and administrative rules. The procedural rules for the Courts to administer these laws would be derived mostly from the same general codes, e. g. , the Civil mapping Code, 1908, the Criminal Procedure Code, 1989 and the Evidence Act, 1872. Development of Judicial Activism in the Environmental Regime & the ECA The law that deals specifically with environment is the Environment preservation Act (ECA), 199528.The Act has come into force since the June 1995 and to some extent has recognized the Rio principles of precaution, polluters pay and peoples participation. The ECA has replaced the earlier Environment Pollution Control Ordinance, 1977 and has added new dimension to environment focus by making a shift from pollution go through to environment conservation. The recent amendment of the Act in 2002 has presumptuousness the provisions of the law overriding effect over al l other laws29. According to section 2(d) of the ECA environment shall include water, air, land and physical properties. The inter relationship among and between these components of environment and human and other living beings, plants and micro-organisms are also included in the broader definition of environment.The ECA has established the discussion section of Environment (DoE) and has current its Director General (DG) to take all such steps as are necessary for the conservation of environment, improvement of environmental standard and defy and mitigation of pollution30. In line with slit 11 of the Agenda 21 that calls for conservation and management of resources for development, the ECA in Section 5 has authorized the government to declare areas of great bionomic importance as Ecologically sarcastic Area. Such legal authority would allow the government to declare fragile eco systems as diminutive or protected areas and bring them under special management system. Section 5 o f the ECA reads as follows Declaration of Ecologically diminutive Area (1) If the temperament is satisfied that due to degradation of environment the eco-system of any area has reached or is threatened to reach a critical state, the Government may, by notification in the official publish, declare such area as ecologically critical area. The Government shall specify, in the notification provided in subsection (1) or in any other separate notification, which of the trading operations or processes shall be carried out or shall not be initiated in the ecologically critical area. low Section 5, the Ministry of Environment and Forests (MoEF) has already say 8 areas including one mother fishery (wetland), fragile coral island, part of worlds largest mangrove forest as ecologically critical areas31 and has brought them under special protective measures.Such initiative of the Government of Bangladesh strongly supports its commitment expressed under the various CTPs including the cr owd in Biological Diversity, 1992 and the Convention on Wetlands of International importance Especially as Waterfowl Habitat, 1971. closely recently, the cabinet on 22 July 2002 has approved the International Convention on Oil Pollution Preparedness Response and Cooperation, 1990 paving the way to protect its territorial water from oil pollution. Section 2(1) of the Act defines wastes and authorizes the Government to run across the standard for discharge and emission of waste including radioactive wastes Section 20(2)(e). unfounded substance has also been defined Section 2(i) and the Government has been authorized to lay down rules for environmentally sound management of hazardous substances and toxic wastes.Although the Government is yet to exercise its rule making powers, these legal developments correspond to the accepted framework of Agenda 21 calling for environmentally sound management of hazardous wastes and substances. At the national frontier, the Government in exercise of its powers under the Agricultural Pesticides Ordinance, 197132 has illegalize the import of ten pesticides for their hazardous impact on vegetation human and animal life33. Worth mentioning, Bangladesh has ratified the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, 1989. The country has also signed the recently adopted Stockholm Convention on Persistent Organic Pollutant, 2001 on 23 May 2001. Section 12 of the ECA incorporates the precautionary principle by requiring ndustrial unit or excogitates to be established after obtaining environmental clearance from the DoE. Any violating unit may be shut down by the DG, DoE. The amended ECA34 empowers the government to ban products that are harmful to environment and the government, with active participation from the people, has been very successful in banning the production, use and sale of polythene products below 20 macron. The most significant advancements after the enactment of the ECA have been the setting up of quality standard for air, water, noise and soil and the formulation of environmental guidelines to figure and mitigate pollution. The setting up of such standards has been done through the Environment Conservation molds framed in 1997.The Rules have detailed out the development where environmental impact discernment (EIA) would be necessary. This has make EIA mandatory for undertake projects and industries although procedural details of EIA are yet to follow. The Government may gestate of making the EIA process participatory ensuring access in decision-making process. The ECA has made it an rudeness to discharge excessive pollutants and cavictimization damage, direct or indirect, to eco-systems. Sections 7 and 9 of the ECA have in effect incorporated the principle of polluters pay. Under Section 7 the DG shall require any person including companies responsible for pollution to adopt corrective measures and also to pay good the losses ca used by such pollution.In the event of failure by the polluter to hinder emission of excessive discharge the DG shall initiate the needed therapeutic measures and the expenses incurred shall be recovered from the polluter as public demand35. The ECA tends to realize access to administrative proceedings and also to participation in the decision making process. Section 8 of the ECA allows a person modify or likely to be affected from the pollution or degradation of environment to apply to the DG for remedying the damage or apprehended damage. The DG may adopt any measures including public earshot for setting such grievance. Under the master copy Act, cognizance of offence by the courts required a written report from the DG. The requirement of report from DG, DoE would have adverse affect on right to justice. Fortunately, the original Act has been amended in a unequivocal fashion.The requirement of written report although still valid, may be relaxed at the discretion of the judic iary if there appears to be a prima facie case and also failure on part of DoE to take proper initiative. Amended Section 4A of the ECA has required all statutory agencies to render tending and services to the DG on his request. Violation of the provisions of the Act has been made an offence and may be visited with a penalty of Taka 10 lakh and/or 10 historic period of imprisonment36. The Act has recently been amended to provide for different punishment for invasion of different provisions. For proper carry throughation of the ECA, it has been proposed to set up environmental courts in the six administrative divisions of the country37.The proposed courts would administer the environmental offences under the ECA and also other laws as may be notified by the Government in official Gazette. This revolutionary step aims at ensuring speedy trial and disposal of environmental cases. The Act provides in details the investigation and trial procedure for the Courts comprising of member s of the subordinate judiciary. Section 9 of the Act empowers the Environmental Courts to use the fine realized as compensation for the people affected by the environmental offence. The judges for two environmental courts have already been appointed and it is expected that the judicial system will start procedure soon. An amendment to the Forest Act, 1927 in 200038 has provided scope for public participation in environmental resource management.The newly added section 28A has given express legal recognition to the concept of social forestry and has empowered the government to make rules requiring an agreed upon management plan for social forestry programmes. The rules are in the process of finalization. Another significant piece of law enacted in 2000 is the Open Space Protection Act, 200039. With proper implementation of the law, the respective regime can protect the natural water bodies including the flood plains of the urban areas from filing up for the sake of urbanization and development. In addition, legal regime on environment contains provisions recognizing customary rights over forest40, access to open water fisheries41 and participation in the development process while finalizing water related schemes42 and master plan for urban areas43.Legal regime provides punishment against pollution of territorial waters44 and prohibits pollution of air, water and soil from agricultural, fishery, industry, vehicle and other sources45. Environmental resources like forest and fishery have been given special status for protection purposes. Administration of Environmental Justice The Court Cases On the fact of activism by the civil society, the judiciary in Bangladesh has started responding to cases pursuit environmental justice. Judicial activism contributes to proper implementation of environmental laws and allows the vast majority of the backward section access to the justice system.As a result of forward interpretation by the judiciary of some constitutional and legal provisions, public interest litigation (PIL) and right to environment have received express legal recognition. The cases decided by the judiciary have tended to activate the executive, create wider awareness and affected the value system of the administration and the society. In the cases on environment decided so far by the judiciary, directions have been given to the government agencies to perform their statutory functions. All these decided cases have communicate issues on sustainable development, precautionary principle, participation and access and are quite a landmark decisions. With increased number of PILs in Bangladesh, it can now be said that the environmentalists and the civil society places confidence in the judiciary n redressing the grievance of the downtrodden and the deprived. In deciding some of the cases the judiciary has endorsed the innovations that justice require in one recent incident, the proud Court even intervened and issued suo moto rule to p rotect a public garden from pass onment. Environmental Nuisance should be Mitigated Judicial recognition for protection of environment was first recorded by the steep Court46 in a case that challenged nuisance during resource labor. The judiciary disposed of the case on assurance from the Attorney General to take measures against defacing of public and private property in the name of election campaign. Right to EnvironmentThe judiciary, while deciding on a case involving importation of radiated milk47 attached broader meaning to the constitutional right to life and held Right to life is not only limited to the protection of life and limbs but extends to the protection of health and strength of the workers, their means of livelihood, delight of pollution-free water and air, loot necessaries of life, facilities for education, development of children, maternity benefit, free front, maintenance and improvement of public health by creating and sustaining conditions congenial to go od health and ensuring quality of life lucid with human dignity. Access to Justice Opening up the Horizon of Public Interest Litigation (PIL) In an appeal from the ideal of the High Court variability dismissing a writ by a topical anaesthetic anaesthetic environmentalist group on ground of locus standi, the appellant Division of the Supreme Court of Bangladesh in its historic judgment dated 25 July 1996 grant standing to the ground48.In allowing the appeal, the judiciary interpreted the constitutional requirement of aggrieved in ship canal beyond the strict traditional concept. The appeal being allowed is a landmark decision in addressing the constitutional knot and riddle that have been prevalent on the doorstep question as to who is an aggrieved person for last cardinal quadruple years memorial of our Constitution. The decision opened up the aspect of PIL in Bangladesh and since then the judiciary has entertained a good number of cases on environmental grievances. Rig ht to Participation On practical use from a local environmental group, the High Court Division (HCD) of the Supreme Court also intervened to judge on the legality of a development project called the overeat put through- visualize-2049.The prayer criminate the government activity of violating a number of laws that ensure peoples participation in the decision making process, provide for compensating affected people for all sorts of loss and defend the national heritage. The Court delivered judgment on 28 venerable 1997 and observed, in implementing the project the respondents (government) cannot with impunity violate the provisions of law. The Court tell the authorities to execute the work in compliance with the requirements of law that guarantee right to participation and compensations. Suo motu Rule against Grabbing Land of Public Garden The Court has been active in protecting the environment in specific class action, and it has also given rules, suo motu, inquiring bla tant infringements of the states obligations to protect and preserve the environment.In one such case, the High Court Division (HCD) issued a suo moto rule when, in violation of an earlier order of the Court to maintain status quo, gunned hoodlums attempted to encroach upon 2. 8 acres land of the only public garden of old Dhaka for construction of hotel therein. Protecting River from Encroachment On application from an environmentalist group50 pursuance judicial intervention to protect the only river flowing through Dhaka from illegal encroachment, the HCD direct the concerned statutory authorities to drive before the Court an action plan setting out definite time frame and measures to be under taken for removing the encroachers. Following the petition, the government acted to reverse the encroachers and the river now stands free from illegal occupation.Taking from the learning of this case, the government has constituted an inter-ministerial committee to remove illegal occupat ion from the other rivers of the country. Checking Industrial Pollution In a recent decision, the HCD gave directions to check indiscriminate pollution of air, water, soil and the environment by 903 industries belonging51. These industries were identified polluters by the Ministry of Local Government, campestral Development and Co-operatives (LGRDC). The 14 sectors include Tanneries, Paper and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, safety and Plastic, tyre and Tube and Jute.An official notification of the government enjoin the incision of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure within three years that appropriate pollution control measures were undertaken by the identified polluting industries. The zero(prenominal)ification also required the said authorities to ensure that no new industry could be set up within pollution fighting devices. When no measure was taken even after the pass away of eight years, the above petition was filed. aft(prenominal) a lengthy earreach, the Court directed implementation of the directions given in the notification. To ensure implementation of the Court order, it was required from the respondents to report to the Court after six months by furnishing concerned affidavit exposeing compliance. The Court held it mperative on the part of the DG, DoE to take penal action against such plane section or persons responsible for not implementing the ECA, 1995. Vehicular Pollution to be bring down The HCD, in a recent decision, gave a comprehensive judgment52 to fight vehicular pollution at different from. The six directives of the Court required the authorities to Phase out all two- throw vehicles from city streets of the Capital by celestial latitude 2002 Convert all petrol and diesel- send awayled government vehicles into soaked Natural bungl e (CNG) powered within six months Enforce the prohibition on use of pneumatic horns within 30 days Check fitness of vehicles using computerized system with immediate effect Follow international standard of fuel by reducing or eliminating toxic elements Set up sufficient number of CNG picking stations within six months and ensure that all cars imported since July 2001 is fitted with catalytic converter. This petition also has been kept unfinished for shape up monitoring. The other pending cases on environment involves preservation up of lakes, flood flow zones and rivers, encroachment over rivers, violation of construction law, pollution from brick field, environmental hazards of shrimp cultivation, destruction of hills, botch up explosion without environmental impact assessment (EIA), compensation for environmental damages and so on.Judicial Decisions in the Issue of Environment of Bangladesh The concept of public interest litigation as has emerged into the judicial administ ration of Bangladesh is yet to mature with the concept of justice guaranteed by the Constitution. This is a crucial concept in a country like ours where 65% of the total populace have no or less access to judiciary although the constitution commits for equality before law, justice, right to life and equal enjoyment of fundamental rights by all citizens. With obvious socio-economic constraints and a long history of feudal past, the realization of legally recognized rights is still subject for presence by various social and pressure groups.In recent time the movement for enjoyment of rights took a new dimension as the potential of judiciary is being increasingly emphasized by the activists and the courts are dealing with cases seeking relief against administrative sedition and ignorance. It was interesting to note that the concept of PIL is growing in Bangladesh as a performance of public duty by some citizens groups holding or advocating in support of progressive ideologies. inde ed in 1994 a petition was first taken before the High Court by a national non-governmental organization called Bangladesh Environmental Lawyers connective (BELA) on behalf of the people of a locality where a disputed development action was being implemented. The petition was at first rejected by the court on the ground of standing of the organization.An appeal was preferred from that rejection where the core question was whether groups like BELA with dedicated and sincere record of activism can claim to have acquired sufficient interest to seek judicial redress against anarchy in its own field of action. The question was vital as it was a constitutional requirement under oblige 102 that it is only a person aggrieved who can file petitions for enforcement of fundamental rights. Being responded by the Supreme Court in the positive this became the turning point in the history of PIL in Bangladesh. BELA that led the movement for opening up the horizon of PIL in Bangladesh has filed th e cases storied below 1. Dr. Mohiuddin Farooque v. Election Commission & others writ supplicant No. 186/1994 (Nuisance during Election Campaign)The first ever-environmental litigation was filed in 1994 in the form of a writ pray in the High Court Division of the Supreme Court of Bangladesh by a group of environmental lawyers called the Bangladesh Environmental Lawyers Association (BELA). It was filed against the four authorities of the Government responsible for the enforcement of various civic rights, and accordingly, the respondent was the State. The election of the four Municipal Corporations of the country, held at the beginning of this year, evidenced gross violation of some legal obligations and, consequently, interfered with the various rights of the people. The unlawful activities created by the election campaign resulted in encroaching on public properties, restricting and depriving the rights to life, property, enjoyment of public resources, etc. of the city dwellers. The footpaths and other public places were saturated with election camps perpetual use of loudspeakers and other noisy instruments rendered life miserable the walls of the four major cities of the country where the elections were being held were all covered with election slogans unscheduled and unregulated processions created serious traffic jams, and so on. Repeated appeals by the Election Commission for showing respect to the laws of the country were virtually ignored. All this anarchy prompted the institution of a petition where the Honble Court issued rule nisi upon the respondents asking them to show cause as to why they should not be directed to accept with the directive issued by the Election Commissioner touching upon the various acts and laws and rules.The Court also considered the prayer of the suppliant to restrain the Election Commissioner from holding the election till full compliance with the respondents. The rule, however, was disposed of, following assurance from the Attorney General that the Government would take all necessary steps to implement all the directives of the Election Commission. 2. Dr. Mohiuddin Farooque v. Bangladesh & others writ entreat No. 891/1994 (Industrial Pollution Case) In 1994 BELA filed this Writ supplicate seeking relief against indiscriminate pollution of air, water, soil and the environment by 903 industries of 14 sectors identified as polluters by the Ministry of Local Government, Rural Development and Cooperatives (LGRDC) vide Gazette notification dated 7 August 1986.The 14 sectors include Tanneries, Paper and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber and Plastic, Tyre and Tube and Jute. The Notification of 7th August 1986 directed the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure within three years that appropriate p ollution control measures were undertaken by those industries. The Notification also required the said authorities to ensure that no new industry could be set up without pollution fighting devices. But unfortunately, even after the lapse of eight years when no measure was taken the above Petition was filed. after(prenominal) seven years since the date of choice of the petition on the 15 July of 2001, the court has directed the Directed General, Department of Environment to implement the decision taken with regard to mitigation of pollution by 903 industries identified as polluters within the time frame of six months from the date of the judgment. The Petitioner pleaded that the ecological system of the country more particularly the air and water including the major rivers (Buriganga, Surma, Karnaphuli and so on) are being barrenly affected by the identified 903 industries and that no affirmative action has been taken in furtherance of the decisions of the Gazette dated 7th August, 1986.Rather the number of polluting industries has multiplied as the recent list prepared by the DoE shows that the number of polluting industries have risen up to 1176. The Court earlier issued Rule Nisi to the Respondents including the LGRDC, Ministry of Environment and Forest, Ministry of Industries and Department of Environment to show cause as to why they should be directed to implement the decisions of the Government dated 5 June, 1986 which was published in the official Gazette. After hearing the Petitioner, the Rule has been made absolute today and the DG, DoE has been directed to Report to this Court after six months by furnishing concerned affidavit showing that compliance of this Order of this Court. To ensure implementation of the Court irections, the Honble High Court further held that It will be imperative on the part of the Director General to take penal action against such department for persons who are responsible for not implementing the letter of the Environment Conservation Act, 1995. 3. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 300/1995 (Vehicular Pollution Case) This writ petition was filed by BELA seeking appropriate direction upon the Respondents to perform their statutory public duties and functions for controlling environmental pollution created by motor vehicles and to take effective measures to ensure the most appropriate mitigative measures, devices and methods to prevent further innervation and danger to life and public health.The petition was filed against 13 Respondents, namely, (1) The Secretary, Ministry of Communications (2) The Chairman, Bangladesh way Transport Authority (3) The Secretary, Ministry of Home Affairs (4) The Commissioner, Dhaka Metropolitan police (5) The Secretary, Ministry of Environment and Forest (6) The Director General, Department of Environment (7) The Dhaka urban center Corporation (8) The Secretary, Ministry of Health & Family Welfare, (9) The Secretary, Ministry of Commerc e, (10) The Secretary, Ministry of Energy and Mineral Resources, (11) Chairman, Bangladesh Petroleum Corporation, (12) The Secretary, Ministry of Industries, and (13) The Bangladesh Standards and Testing Institution. In his submission the petitioner stated that the air pollution from faulty motor vehicles has been universally identified as a major threat to human body and life.Such pollution in Dhaka City is acute and contradictory with the conditions required for the growth of human life and ecology. The lives of the City dwellers and its environment are endangered and the failures of the respondents in the performance of their statutory and public duties are depriving people of their fundamental rights disturbing the public peace creating public annoyance. He submitted that the lead-laced gas emitted because of the use of leaded petroleum were severely affecting the lungs, liver, brain and the flighty system, resulting to high blood pressure, IQ and memory-retention damage among children and damage to foetuses leading to deform babies.The high sulphur content in the petroleum, and hence in the smoke, causes severe damage to the ecology. The main thrust of Dr. Farooques submission was that although the right to a safe and healthy environment has not been directly specified in the Constitution as a fundamental right, such a right is inbred and integrated in the right to life as enshrined in Article 32 of the Constitution. Hence, the right to a sound environment was also a fundamental right under Article 32 being back up by Article 31 that ensures that no action detrimental to life, body, property could be taken. Therefore, the failures of the Respondents in their duties denied the people of their basic fundamental right.Upon hearing the Petition, the Court issued a rule nisi upon the Respondent to show cause as to why they should not be directed to take all adequate and effective measures to check pollution caused due to the emissions of hazardous smokes from the motor vehicles and the use of audible signaling devices giving unduly harsh, shrill, loud or affright noise. The matter was pending for a long time and after a lapse of 7 years, on the 27th March of 2002 the High Court has directed the government to phase out all two stroke vehicles from City Street by December 2002. The court also directed that all petrol and diesel-fuelled government vehicles have to be converted into Compressed Natural spoil (CNG) powered within six months and pneumatic horns being discarded within 30 days. It asked the Bangladesh Road Transport Authority (BRTA) to check fitness of vehicles, using computerized system with immediate effect.The court also asked the government to ensure international standard of fuel by reducing or eliminating toxic elements. The High Court further directed the government to set up adequate number of CNG pickax stations within six months and to ensure that all cars imported since July 2001 be fitted with catalytic conver ter. The government was also asked to strictly comply with its decision to ban two stroke vehicles of over nine years old. BELA also prayed for ensuring that the exemption of motor cycles from the requirement of protection of fitness under the Motor Vehicles Ordinance, 1983 be withdrawn immediately which was also directed by the Court.On behalf of the government BRTA, Dhaka Metropolitan Police, Environment Ministry, Department of Environment, Commerce Ministry and Ministry of energy and mineral resources submitted testimony (affidavit) in opposition before court. The matter is pending for further monitoring. 4. Sharif Nurul Ambia v. Bangladesh & others Writ Petition No. 937/ 1995 (Unlawful Construction) The Petition was filed with legal assistance from Bangladesh Environmental Lawyers Association (BELA) by Mr. Sharif Nurul Ambia, Joint General Secretary of Jatiya Samajtantric Dal (JSD). The Petition was moved by the Secretary General of BELA, Dr. Mohiuddin Farooque submitting that the DCC has undertaken the construction of the multi-storied building at the site earmarked for public car set in the RAJUK Master Plan unlawfully and without the latters approval and hence credible to be demolished.It was further submitted that the construction was continuing defying DoEs finding that the said building would create a disruption to the environment of the area and the neighborhood depriving them the right to life, body and healthy environment against hazardous pollution and obstruction to air and light as being endangered by the wildcat construction by the Respondents. Upon hearing the petitioner, the Court stayed the said construction till disposal of suit. The rule was ultimately disposed of against which an appeal is pending before the Appellate Division. 5. Dr. Mohiuddin Farooque v. Bangladesh and others Civil Appeal No. 24/1995 (Case on Standing) This Appeal arose from the judgment of the High Court Division dismissing a writ stating that BELA had no right t o sue on behalf of the people of Tangail where the Flood Action Plan-20 was being implemented. On Appeal, the Appellate Division minded(p) standing to BELA on 25th July 1996.The main thrust of the appeal was to get a judicial verdict as to whether a person or group of persons could be aggrieved in shipway beyond the strict traditional concept, which are now emerging in many legal systems, like suits by evidently public-spirited persons or bodies having proven dedication. The appeal being allowed is a landmark decision in addressing the Constitutional knot and riddle that have been prevailing on the threshold question as to who is an aggrieved person for last twenty four years history of our constitution. 6. Dr. Mohiuddin Farooque v. Bangladesh & others (Writ Petition No. 998/94) Sekandar Ali Mondol v. Bangladesh and others (Writ Petition No. 1576/1994) (Challenging Flood Action Plan-20) In 1994, a Petition was filed by BELA challenging the implementation of Flood Action Plan-20 in Tangail.The Petition, first rejected by Court on the ground of Standing of the Petitioner was subsequently sent for hearing on merit to the High Court after the Appellate Division granted standing (Bangladesh Legal Decisions, (BLD) 1997 Appellate Division (AD), pg. 1). In the petition, the authorities were accused of violating a number of laws that provide for compensating affected people for all sorts of loss and protecting the national heritage. The Court delivered Judgment on 28 August 97 and observed that in implementing the project the respondents cannot with impunity violate the provisions of law. We are of the view that the FAP-20 project work should be executed in complying with the requirements of law. 7. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 948/1997 (Uttara Lake Fill-up)A division Bench of the High Court Division issued an injunction of the filling up of Uttara Lake for housing purposes. The injunction was issued on an application of Dr. Mohiu ddin Farooque, Secretary General, BELA upon the Secretary, Ministry of Housing and Public Works, Chairman, Rajdhani Unnayan Kartripakhya (RAJUK) and DG, DoE. The petition was filed on an appeal from the local residents of Uttara, who accused RAJUK of creating an environmental hazard in the area by filling up part of the lake in violation of the original Master Plan of Uttara. The injunction would remain effective till disposal of the case. Upon final hearing of the petition the Honble Court on presided over Mr. Justice Md. Imman Ali and Mr.Justice Shamin Hasnain on 17 February, 2004 discharged the rule without any order as to cost. After gating same judgement BELA filed Civil Miscellaneous Petition 84 of 2004 and Civil Petition for Leave to Appeal 564 of 2004 before the appellate division upon hearing the petitioner the Honble Appellate Division granted prayer Leave. Pending hearing of the rule, parties are directed to maintain status quo. 8. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 1252/1997 (Unregulated cognitive operation of Brick Field) The indiscriminate operation of 19 brickfields in Senbag of Noakhali District in violation of applicable legal provisions and circular was brought to the find of the High Court through the above petition.The petition filed by BELA on behalf of a local group called Senbag Thana Pollution Free Environment Committee accused the local administration for being indifferent towards the environmental havoc created by the brick furnaces. The management of the brickfields were not conducting their business with due regard to the legal provisions mandating in favour of sound environment and health state. Moreover, leasing agricultural land to brick fields in violation of existing land management laws and manual resulted in a tremendous pressure on the available stock of agriculture land, as after a given period the lands do not remain fit for agricultural purposes.Upon hearing the petitioner BELA, the Court issued a Rule Nisi calling upon Secretary, Ministry of Land, Deputy Commissioner, Noakhali and DG, DoE to show cause as to why the issuance and renewal of licenses permitting operations of 19 brick manufacturing kilns in the Senbag Thana under Noakhali District causing threat to the natural environment and health of the neighbouring residents of the area should not be say to have been done without any lawful authority and be directed to implement the circular. The matter is now pending for hearing. 9. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 6020/1997 (Hill Cutting Case)The indiscriminate, unlawful and unauthorized cutting and rising of hills within the Chittagong City Corporation and its adjoining areas was brought to judicial notice by BELA through the above petition. The Court on hearing the petitioner, Dr. Mohiuddin Farooque, directed the DG, DoE to submit a report on alleged(a) illegal and indiscriminate cutting of hills, contributing to ecological imba lance and degradation of environment of the city. The Court further ordered that the report should contain the measures taken by the Government to prevent such illegal activities. Subsequent application has been filed under the petition. The matter is now pending for hearing. 10. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 6105/1997 (Gas Explosion at Magurchara)The above petition was against the Secretary, Ministry of Energy and Mineral Resources, Chairman, Bangladesh Oil, Gas and Mineral Development Corporation (PETROBANGLA), DG, DoE and western of Bangladesh Limited for their disrespect in preventing the fire that engulfed the Magurchhara Gas Field and the adjoining areas, while the Occidental of Bangladesh Ltd. , a reputed foreign oil company, was carrying on with their regular excavation. The statutory authorities permitted such risky operation without proper EIA, as required by the ECA. BELA, the petitioner, also blamed the respondents for failing to comba t the after effects of the fire, as reports suggest that it took quite a long time before frequent life was restored in the affected areas. A show cause notice was issued upon the respondents to clarify their own position. With the filing of subsequent petition the petition is pending for hearing. 11. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 7422/1997 (Gulshan Lake Fill-up)A division bench of the High Court Division issued a Rule in a petition filed in 1997 against implementation of an agreement called the Banani, Gulshan, Baridhara Lake Development Project Agreement signed between RAJUK and Indus Valley Investment Pvt. Ltd. to undertake a huge construction in the said areas, defying and violating the constitutional and legal requirements. The Court directed them to show cause as to why the agreement and the subsequent agreements to lease out a total area of 220 acres of public land should not be declared to have been entered/undertaken without lawful authori ty in violation of law and the constitution against public interest and as such be declared null and void and of no legal effect. The Government subsequently turned the project. 12. Nijera Kori v. Bangladesh & others Writ Petition No. 1162/1998 (Allotment of Land for Shrimp Cultivation)The petition was filed against tryst of Government owned Khas Land to Shrimp Cultivators in Sudharam, P. S. of Noakhali District in contravention of the provision of the Land Management Manual, 1991 and Articles 15, 19, 31 and 32 of the Constitution depriving thereby the landless people. The Court on two occasions restrained the respondents from disturbing the peaceful possession of the landless families. The matter is now pending for hearing. 13. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 2482/1999 (Gulshan Lake) The unlawful filling up of Gulshan, Banani, Baridhara Lake for creating housing plots was challenged by another writ petition No. 482 o f 1998 filed by BELA. Following the Petition a division bench of the High Court directed RAJUK to take measures for suspending all construction and/ or filling up of the water body and lakeside areas of Gulshan, Banani and Baridhara Model Towns in specific areas. The Court also issued a rule nisi upon the Ministry of Works and RAJUK to show cause as to why the allotment of on the lake water lake-side area in Gulshan, Banani, Baridhara Town shall not be declared to have been undertaken in violation of the Town Improvement Act, 1953, against public interest and why they should not be directed to restore public property in a manner best suited to public interest.The Court further directed RAJUK to prepare and submit before it a detailed and complete command regarding allotment of plots and filling up of the lake water and/or lakeside area in violation of the approved Master and Lay Out plan rendering thereby water bodies of the Lake into private properties along with list of label an d address of persons in whose favor such allotment have been made and those encroachment upon the lake water and or lakeside. The matter is pending for hearing. 14. Biplob Kumar Roy v. Bangladesh and others Writ Petition No. 1840 of 1999 (Nabaganga River) A Rule Nisi was issued upon the Deputy Commissioner, Narail District for unlawfully leasing out part of the River Nabogonga having its flow through Rajpur to Jaipur Ghat. The rule came as a result of the Petition No. 840 of 1999 filed by BELA and one member of the l