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Access to environmental justice is restricted

Access to environmental justice is restricted

Global awareness building and enhanced international commitments followingtheStockholm Conference 1972 and the Rio Conference 1992 influencedmore than a hundred countries of the world to incorporate provisions in the constitutions recognizing the right to the environment in a way either expressed or implied.

At least 13 countries had governments that were slow to act or did not take the necessary steps. In these cases, the courts recognized the right of the environment and took responsibility. Bangladesh is one of these countries. M. Farooque v Bangladesh[1997]49 Dhaka Law Reports 1(SC).

The Supreme Court of Bangladesh has been a leading voice against environmental pollution since then. It has passed several important judgments, including directions. The Supreme Court has expanded the meaning of the right-to-life to impose positive obligations upon the state. Rabia Bhuiyan v Secretary Ministry of LGRD and Others is an example.[2007]59 DLR176 (SC). The Supreme Court of Bangladesh ruled in this case based on the Constitution’s right to life provisions that everyone has the rights to safe drinking water. InBangladesh Environmental Lawyers Associations (BELA) v Bangladesh[2008](Writ Petition No. 7260 HCD. The Supreme Court Division of Bangladesh, High Court Division, asked the government for a committee to supervise the ship-breaking sector. They also requested that the government comply with the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes. The Supreme Court has not resisted the right to a safe environment for human beings, but has also extended this right to non-humans. A Writ Petition No. The Human Rights and Peace for Bangladesh (HRPB), which challenged the legality of earth-filling and encroachment along the banks of the river Turag, filed a Writ Petition No. The Court also declared that the order will apply to all rivers of the nation and appointed the National River Protection Commission the legal guardian of all rivers. The Supreme Court of Bangladesh upheld the judgment of the High Court Division. Bangladesh is a notable country that has recognized rights of nature through judicial pronouncements.

The Subordinate Judiciary of Bangladesh, in line with the Higher judiciary is also working to protect our environment. Despite the need and supporting provisions of the Environment Courts Act 2010, Bangladesh has only two environment courts and one appellate court. This is a small number considering the large population and environmental hazards and polluting activities. The Subordinate judiciary is making strides to rectify this situation. Section 5 of The Environment Courts Act allows the Government to appoint Special Magistrates for each district to address environmental offences under the Environment Conservation Act 95. In accordance with Notification No. Bichar-1/4P-1/2008-133 dated 22.03.2011 published by the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs authorizing the Chief Judicial Magistrate and the Chief Metropolitan Magistrate to appoint any Senior Judicial Magistrate or Metropolitan Magistrate as a Special Magistrate to try environmental offences, orders have been made in several districts appointing Special Magistrates. The Chief Judicial Magistrates from Feni, Hobigonj and Narayanganj detailed the powers that the Special Magistrate was given in terms of taking cognizance for environmental offences, as well as presidering mobile courts.

Recent years have seen several important orders and directives from the Special Magistrates presidering the Special Magistrate Courts of environmental offences. The orders that directed the Department of Environment to take action against brick kilns, given by Special Magistrates Hobigang, are notable. To protect crops and ensure the natural flow of water, the Special Magistrate Feni has ordered that illegal dams be removed. Special Environment Magistrate Feni issued orders to protect Kalidas Pahalia River and Dadnar Canal.

It is even better to see that Special Magistrate courts are exercising suo motu jurisdiction in taking cognizance offence. This is a relief from the bureaucratic requirement of filing environmental cases through DoE. The restricted access to justice is what is hurting Bangladesh’s environment. This situation remains unchanged despite the 2010 adoption of the Environmental Courts Act. Section 7 of ECA 2010 states that the environmental courts will not consider any claim for compensation unless they receive a written report from an Inspector of DoE. Section 6(3) stipulates that no Special Magistrates shall be able to take cognizance a crime without the written report from an Inspector of DoE. These provisions are restrictive and a barrier to improving access to environmental justice. This makes it difficult for victims of environmental pollution seeking redress. Leading scholars have termed the Environmental Courts of Bangladesh inactive courts. According to a Daily Prothom-Alo report, there are 7,002 cases pending before the three designated Environmental Courts. Only 388 of these cases are filed under the Bangladesh Environment Conservation Act 2015. The lowest filing rate of environmental cases in Bangladesh is due to restricted access to justice.

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Given the ongoing degradation of the environment it is expected that both the Higher Judiciary as well as the Subordinate Judiciary will take initiatives to help protect it. These initiatives are expected to help remove the DoE’s role as an executive body. There are many environmental complaints that are less likely than others to be investigated, which could lead to judicial filings. It is evident that Special Environmental Magistrates exist in all 64 districts of the country. They have full authority to take cognizance of environmental offenses and conduct mobile courts, as authorized by the Environment Courts Act 2010. This ensures environmental justice.

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