2 ALR (2013) 33 Implication of Judiciary in protecting Human Rights and Environmental Rights Syed Sarfaraj Hamid* Md. Al-Amin** 1.1 Introduction Human rights present a new and unique way to approach development questions. The human rights-based approach aims to ensure that development programs are designed to improve human well-being. The gradual development of civilization, the rapid progress in science and technology and ever increasing population affected the life style of the human race at the cost of environment. Ozone layer depletion, climate change, global warming, destruction of bio-diversity, exhaustion of natural resources and deforestation are responsible for disastrous environmental changes. As a result international community expressed deep concern and for protection of global environment organized regional, national and international conferences and Government made various treaties on this subject. The measures adopted in these conferences and conventions crystallized certain principles and rules relating to the protection of environment of the world. Its main object is to protect our environment and also many scopes to protect the Global environment. The protection of the global environment has become one of the central objectives of the international community in recent decades. Issues such as climate change, the depletion of the ozone layer, and the loss of the biological diversity has resulted in a growing international awareness of the problems facing the planet, Moreover, there is also recognition that States will need to act more collaboratively at the international level if effective solutions are to be found to these problems. However, concurrently there is also recognition that many States have pressing socio-economic concerns of their own, and that they have neither the resources nor the capabilities with which to devote to such global issues—so called developing States. This article examines the response of international environmental law to these two, potentially opposing, trends, viz., the need for universalism, on the one hand, and sensitivity to the needs of developing States, on the other. In particular, the article will examine the emerging legal principle of common but differentiated responsibilities, as well as discussing the various means of operational sing it. Nevertheless, as will be discussed below, there is still much debate as to the conceptual basis of this principle—leading one to question its real aim. Is it to contribute to a fairer world system in which developed States recognizing their historical responsibility for past environmental damage, or is it simply an expedient means of ensuring the participation of developing States. 1.2 Existing Environmental Problems in Bangladesh Bangladesh is basically a riverien country in the tropical zone having highly fertile delta soil. Its economy is mainly based on agriculture. Natural calamities like floods, locally originated tornadoes and cyclones are regular features affecting the population and habitats in the rural areas. High growth of population increase the habitats are diminishing the plants and trees in the rural areas particularly to meet their requirement of fuel substitute for cooking, in brick fields and other small industries. Increasing need of wood for the population for transports, roads, bridges and homesteads add to the degradation of environment. Bangladesh had agro-based industries till the 1970 mostly like jute mills, sugar mills, cotton spinning mills, etc. Only the sugar mills sporadically situated in the north and north-western part of Bangladesh had localized pollution problems with its wastes. The recent growth of garment industries with its backward linkage sectors composite textile mills (including dying printing and finishing units), and leather processing units (under SMEs) use substantial quantities of highly toxic wastes, dyes and chemicals. Some of these industries are situated close to the river having access for the disposal of their toxic wastes whereas tanneries and some other textile finishing units, situated in the land locked areas posing increasing pollution problems to their surrounding some Government owned large industries like urea fertilizer, pulp and paper etc are creating more pollution problem by their gaseous emission and untreated effluent discharge to the adjoining rivers threatening the aquatic animals and human lives as rural people and animals drink this water for their livelihood. 1.3 Right to Healthy Environment The Constitution of Bangladesh, 1972 does not explicitly provide for the right to healthy environment as a fundamental right. Article 31 states that every citizen has the right to protection from “action detrimental to the life, liberty, body, reputation or property”, unless these are taken in accordance with law. Article 32 states that “No person shall be deprived of life or personal liberty saves in accordance with law”. These two Articles together incorporate the fundamental “right to life”. The next question that peeps into mind is whether the “right to life” includes the right to an environment capable of supporting the growth of meaningful “existence of life” and includes the right to a healthy environment? In two recent cases the Appellate Division (AD) and the High Court Division (HCD) have dealt with the question in a positive fashion. The Appellate Division, in the case of Dr. Mohiuddin Farooquevs Bangladesh and others has been expounded that “articles 31 and 32 of our Constitution protect right to life as fundamental right. It encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life can hardly be enjoyed. Any act or omission contrary thereto will be violative of the said right to life.” The High Court Division, in the case of Dr. Mohiuddin Farooque vs. Bangladesh and others stated that right to life includes right to fresh air and water and a situation beyond animal existence in which one can expect normal longevity of life. Many human rights – such as the right to life and the right to food – are frustrated by an unhealthy environment; this is underscored by the fact that the right to health extends to the underlying determinants of health, which include a healthy environment. However, it is also true that references to the word “environment” in key human rights treaties are scarce. The main international treaty on the right to health, ICESCR, mentions the word only once, in the context of industrial hygiene [article 12(2b)]. The Universal Declaration of Human Rights, ICCPR and CEDAW do not mention environment at all. Hence, it appears that right to healthy environment has now become a fundamental right as per the case laws, which puts additional responsibility upon the judiciary to ensure that rule of law is guaranteed in cases where the sustainability of a proposed or undertaken development project is questionable and those victim of breach of public law and the judicial precedent is appropriately collated by the judiciary. 1.4 Public Interest Environmental Litigation The system of governance in Bangladesh is quite chaotic in terms of its legal regime and all institutions involved are responsible. There is hardly any consistency between policy, law and the institutional framework. The lack of synchrony itself has created the regulatory anarchy. The law enforcers are often the violators. Public accountability is almost non-existent and hence there is the free hand. The complex and conservative legal system has seemingly weakened people’s trust and confidence in it. Until 1994, Bangladesh had no reported cases decided by the Supreme Court on environmental issues. The first such case was filed in January 1994 by the Bangladesh Environmental Lawyers Association (BELA). Since then this group has undertaken a large number of cases which have contributed to the development of public interest litigation. Various environmental problems were the cause of action in these suits in which relief was sought against anti-civic activities, industrial pollution, vehicular pollution, and unlawful construction, illegal felling of public forests, razing of hills, land use and unlawful development schemes among others. Offenses against human health and dignity were also challenged in court. On two occasions the question of “standing” of Bangladesh Environmental Lawyers Association (BELA) was kept open, i.e., Dr. MohiuddinFarooque vs. the Election Commission & Others and Dr. MohiuddinFarooque vs. Bangladesh & Others. The second case relates to 903 polluting industries and factories where the High Court Division of the Supreme Court has issued Rule Nisi in the nature of mandamus. However, in Dr. MohiuddinFarooque vs. Bangladesh & Others. in which the legality of an experimental structural project of the huge Flood Action Plan of Bangladesh was challenged, the High Court Division initially rejected the Petition on the ground that the Petitioner (representing BELA) had no “standing”. The Petitioner has preferred an appeal to Appellate Division where the Court granted leave to decide the locus standi in Public Interest Litigation. In July, 1996 the Appellate Division has given its decision in which Mustafa Kamal, J. said, “In so far as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being a citizen, suffering the common injury or common invasion in common with others or any citizen or an indigenous association, as distinguished from a local component of a foreign organization, espousing that particular cause is a person aggrieved and has the right to invoke the jurisdiction under Article 102.” 1.5 Importance of the connection between these two Spheres Over the years, the international community has increased its awareness on the relationship between environmental degradation and human rights abuses. It is clear that, poverty situations and human rights abuses are worsened by environmental degradation. This is for several obvious reasons; Firstly, the exhaustion of natural resources leads to unemployment and emigration to cities. Secondly, this affects the enjoyment and exercise of basic human rights. Environmental conditions contribute to a large extent, to the spread of infectious diseases. From the 4,400 million of people who live in developing countries, almost 60% lack basic health care services, almost a third of these people have no access to safe water supply. Thirdly, degradation poses new problems such as environmental refugees. Environmental refugees suffer from significant economic, socio-cultural, and political consequences. And fourthly, environmental degradation worsens existing problems suffered by developing and developed countries. Air pollution, for example, accounts for 2.7 million to 3.0 million of deaths annually and of these, 90% are from developing countries. Environmental and human rights law have essential points in common that enable the creation of a field of cooperation between the two: Firstly, both disciplines have deep social roots; even though human rights law is more rooted within the collective consciousness, the accelerated process of environmental degradation is generating a new “environmental consciousness.” Secondly, both disciplines have become internationalized. The international community has assumed the commitment to observe the realization of human rights and respect for the environment. From the Second World War onwards, the relationship State-individual is of pertinence to the international community. On the other hand, the phenomena brought on by environmental degradation trascends political boundaries and is of critical importance to the preservation of world peace and security. The protection of the environment is internationalized, while the State-Planet Earth relationship has become a concern of the international community. Thirdly, both areas of law tend to universalize their object of protection. Human Rights are presented as universal and the protection of the environment appears as everyone’s responsibility. 1.6 Noise Pollution in Bangladesh Noise pollution is not only an aggravation, but also a serious health risk. The WHO has established maximum allowable levels of noise, above which people are harmed; it is widely known that in many parts of Dhaka city, those levels are regularly exceeded. Regular exposure to high levels of noise damages hearing. Noise pollution can also increase stress and blood pressure, cause troubles sleeping and concentrating, and lead to bad tempers and fights. Noise pollution can also be reduced, through passage and enforcement of laws, and increasing of public awareness about the problem and ways to reduce it. Work for a Better Bangladesh (WBB) is committed to improving the environment of urban Bangladesh. WBB decided to conduct research into the issue of noise pollution, in order to understand more about the magnitude of the problem, and the extent of public support for resolving it. Transportation vehicles are the worst offenders, with aircraft, railroad stock, trucks, buses, automobiles, and motorcycles all producing excessive noise. Noise intensity is measured in decibel (dB) units. Subject to 45 dB of noise, the average person cannot sleep. At 120 dB the ear registers pain; hearing damage begins at a much lower level, about 85 dB. According to a survey of the Department of Environment (DOE), noise causes mental and physical illness among the people. Working in an atmosphere of loud noise for a long period can cause complete deafness to any person. Any sort of noise pollution seriously affects expecting mothers. It has been observed that pregnant mothers living near big airports give birth to more crippled, deformed and immature children than those living in other places. According to the DOE the perfect sound condition for Bangladesh is 45 dB for the daytime and 35 dB for the night in peaceful areas, 50 dB for the daytime and 40 dB for the night in residential areas, 60 dB for the daytime and 50 dB for the night in mixed areas (residential, commercial and industrial localities), 70 dB for the daytime and 60 dB for the night in commercial areas and 75 dB for the daytime and 70 dB for the night in industrial areas. The prevailing traditional practices were not conducive to environmental protection or conservation of resources. Some laws have also become redundant, as the conditions for which these were enacted do not exist any longer. In 1989, the Ministry of Environment and Forest was established to address environment-related issues. The Government drafted a national conservation strategy, adopted the national environment policy of 1992, and revised the old law by enacting the Bangladesh Environment Conservation Act, 1995. The Department of Environment was also restructured. The national environment management action plan (NEMAP) has also been finalized and is being implemented. A law was enacted in 1974 to control pollution of water. That law was replaced by an ordinance in 1977. The concern for water subsequently became a concern for management of the environment and this led to the Environment Conservation Act of 1995. Conservation as it has been defined in the Act of 1995 would require qualitative and quantitative improvement of different components of the environment and prevention of their degradation. Environment, as has been defined in the Act, includes water, air, land and other physical properties and the interrelationships which exist among them and between them, and human beings, other living beings, plants and micro-organisms. With the subsequent adoption of the Environment Conservation Rules of 1997 some progress has been made with regard to the effective implementation of the Act. The Forest Act, 1927 covers forests and forest management. Availability of forest land in Bangladesh is one of the lowest in the world. Between the 18th and the middle of the 19th century, different parts of Indian forests were subjected to exploitation on a huge scale under the rule of the English East India Company and, later, the British government. Forest areas shrank during British rule because of the extension of agriculture. The Sundarbans alone shrank by about 1000 sq miles. The Bangladesh Wild Life (Preservation) Order, 1973 deals with game and protected animals. While game animals can be hunted, killed, or captured only subject to the terms and conditions of permits, issued by the relevant authority, protected animals cannot be hunted, killed or captured except for protecting life, crops or livestock. Health and the environment are the concern of a series of acts including the Smoke Nuisances Act, 1905, Juvenile Smoking Act, 1919, Prohibition of Smoking in Show Houses Act, 1952, Brick Burning Act, 1989, Pure Food Ordinance, 1959, Public Parks Act, 1904, and Undesirable Advertisement Control Act, 1952. Under the Smoke Nuisances Act, 1905, the Government may prohibit within any specified area (a) the erection or use of any specified class of brick tile or lime kilns; (b) clamps for making bricks, or the erection or use of furnaces; (c) the smelting of ores or minerals, or the casting, or rolling of iron or other metals, or the conversion of pig iron into wrought iron; (d) the manufacture of coke in ovens or with special appliances; (e) the making of coke without ovens or special appliances. If smoke is emitted from any furnace in greater density, or at a lower altitude, or for a longer time than is permitted by the rules made under this Act, the owner of the furnace shall be liable to a fine which may extend, on a first conviction, to taka 50, on a second conviction to taka 100, and on any subsequent conviction to taka 200. For the enforcement of this law, provision has been made for constituting a commission and appointing a chief inspector of smoke nuisance and assistant inspectors. The Brick Burning (Control) Act, 1989 requires a license from the district commissioner for brick burning. The use of any plant in a brick kiln has been prohibited, and any violation may lead to cancellation of the license, in addition to a fine of fifty thousand taka or six months imprisonment. The Public Parks Act, 1904 applies to any designated public park or garden. It empowers the Government to make rules for the management and preservation of any park, and for regulating the use thereof by the public. Such rules may prohibit plucking or gathering of anything growing in the park, breaking trees, branches or plants, cutting names or marks on trees, disfiguring buildings, furniture or monuments, removing or disfiguring labels or marks attached to trees or plants. However, such rules are yet to be formulated for ensuring more open spaces for city dwellers. 1.7 Major Features of the Environmental Policy The policy covered all geographical regions and 15 development sectors like Agriculture, Industry, Health & Sanitation, Energy and Fuel, Water Development, Flood Control and Irrigation, Land, Forest, Wildlife and Bio-diversity, Fisheries and Livestock, Food, Coastal and Marine Environment, Transport and Communication, Housing and Urbanization, Population, Education and Public Awareness, Science, Technology and Research, Legal Framework and Institutional Arrangements. Moreover, the policy necessitated firmly to review Environmental Impact Assessment (EIA) on industries of public and private sectors and also encompassed the necessity of integrated environmental concerns that shaped into the National Health Policy (Section 3.2.2). In 1992 the National Environmental Policy was drawn up with the aim of providing protection and sustainable management of the environment. The National Environment Policy 1992 embraces a number of related sectors including agriculture, industry, health, energy, water, land, forest, fisheries, marine, transport, housing, population, education and science. The central theme of the Environment Policy of 1992 is to ensure the protection and improvement of the environment. It requires the Government of Bangladesh to ratify international convention and protocols in view of its suitability. The National environment policy has introduced a number of salient environment principles like precautionary approach and Environmental Impact Assessment (EIA). It also assigned the Ministry of Environment and Forests (MoEF) with the responsibility of coordinating the implementation of the policy. 1.8 Constitutional and Environmental Protection The fundamental rights, the preamble or the state policies in Bangladeshi Constitution do not expressly mention any right to healthy and clean environment. The approach adopted in Bangladesh is two folded. The lawyers want to amend and develop the existing fundamental rights in order to pressure the Government to implement the environmental policies. On the other hand, the judiciary stressed the need of harmonious interpretation of the Constitution to ensure environmental protection. This attitude was reflected in the FAP case, where the judiciary adopted a holistic approach, and while interpreting the fundamental rights, took account of the policy statements, preamble and other provisions of the Constitution. Both the High Court and Appellate Division expanded the meaning of fundamental right to life to include protection and preservation of the ecology and right to have pollution free environment. However, the court declined to interfere with the FAP project as foreign assistance was involved and the whole project was meant to be for the benefit of the public. Moreover, it took account of the substantial amount of money that has been spent and that the project has been partially implemented. From the judgment, it is not clear how much environmental damage the court was prepared to tolerate in the name of development. Right to property, another fundamental right, implies that an owner is entitled to non-interference in the enjoyment of the property in question, in particular, non-interference by the Government. Because of the restrictive nature of this right, it has not been used by the court to protect environment. However, the environmentalists believe that a balance between individual ownership and community interests can help to create, interpret and apply property rules effectively to protect ecology. This, in effect, would harmonize enjoyment of our resources today and preservation of resources for our own future enjoyment and for the enjoyment of our descendants. Moreover, the concept of stewardship or trusteeship is well established in common law and could be a useful avenue to protect natural resources and public land, Only in one case in India, the court applied the notion of public trust in protecting and preserving the natural resources. In the view of the court, the state is the trustee of all natural resources, which are meant for public use and enjoyment, and it would be unjustified to make them a subject of private ownership. Public at large is the beneficiary of the seashore, running waters, air, forests, and ecologically fragile lands and the trustee is under legal duty to protect the natural resources. The Indian court considered this principle as international concept well established in their national system. It could help the Bangladeshi court to save the encroachment of open public space, Public Park and watercourses. The Salt Miners Case involved the rights of the residents to have clear and unpolluted water. The Supreme Court, by taking into account the seriousness of danger that the people in that area are exposed, ordered that all mining activities should take measures to the satisfaction of the court appointed commission which will prevent pollution of the reservoir, stream and catchment area. In Environment Pollution in Balochistan case the Supreme Court took account of a news item which contended that certain businessmen were planning to purchase coastal areas of Balochistan, a province in Pakistan, and turn the area into a dumping ground for waste material. The authorities were ordered by the court to insert a clause in the allotment letter/license/lease that the allotee or the tenants shall not use the land for dumping, treating, burying or destroying by any devise, waste of any nature including industrial or nuclear waste in any form. These three cases specifically applied a precautionary approach, though the court never mentioned the principle itself. It has fallen frequently to the judiciary to protect environmental interest, due to sketchy input from legislature, and laxity on the part of the administration. Note that the Pakistan judiciary has consistently mentioned and applied Indian cases where the Indian judiciary prioritized environmental and human rights aspects. Chief justice B.N. Kirpal, Supreme Court of India It should be recognized that a healthy environment is a sina quo non condition for life itself that no right could be exercised in a deeply altered environment. With the broad conception of the environment in mind, it is easy to see why admitting; or rather denying, particular claims would be difficult. As justice Feliciano famously said in his concurrence in Minors Oposa v. Factoran It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to a balanced and healthful ecology. The list of particular claims which can be subsumed under this rubric appears to be entirely open-ended: Prevention and control of emission and smoke from the factories and motor vehicles of discharge of oil, chemical effluents, garbage and new sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines, and whole communities; of dumping of organic and inorganic waste on open land, streets and through fares; failure to rehabilitate land after strip-mining or open pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamic or cyanide and other chemicals; contamination of ground water resoueces; loss of certain fauna and flora; and so on. In public interest litigation concerning air and noise pollution, the Dhaka High Court ordered the Government to convert petrol and diesel engines in Government owned vehicles to gas-fueled engines; the same order also calls for the withdrawal of hydraulic horns in buses and trucks by 28 April 2002. Another far reaching decision of the Dhaka High Court called for withdrawal of two-stroke engine vehicles from Dhaka City by December 2003, the cancellation of license for nine-years old three-wheelers, the provision of adequate numbers of compressed natural gas stations, and the establishment of a system for issuing fitness certificate for cars through computer checks. In dhungel v. Godawari Marbele industries, the Supreme Court of Nepal, in 1995, insisted that first remedial and then regulatory measures need to be adopted to mitigate such negative effects and then required the legislature to enact necessary legislation for protection of air, water, sound and environment and to take action for protection of the environment of Godawari area. 1.9 Standing in the Court Once the applicant is in the court with a claim in public interest, the most important question for the court is to decide whether the applicant should be allowed access to the judicial process. The traditional rule of standing suggests that judicial redress is only available to persons who have suffered a legal injury by reason of violation or threatened violation of his right or legally protected interest by the impugned action of the state or a public authority. This restricted standing rule has been cautiously applied by the court in several cases. In the 90’s, however, the judiciary offered a liberal view of standing and stated that ‘aggrieved party’ should mean a party who, even without being personally affected, has sufficient interest in the matter in dispute. This test has been used in two public interest cases, on dealing with human rights and the other dealing with environment. Therefore, it is difficult to say how the court in general will react to other environmental public interest cases. In India, however, the approach is much more liberal as they apply the sufficient interest test. Bangladesh is set to establish environment courts in 64 districts as the government of Prime Minister Sheikh Hasina has placed the Environment Court Bill 2010 in the Parliament, seeking provisions for allowing citizens to file cases against polluters and for setting up at least one environment court in each district. The Government has also placed the Climate Change Trust Bill 2010 in the legislature. While dealing with environmental matters, the most common remedies offered by the court are injunction, declaration and, civil and criminal damages. The judiciary of Bangladesh, in at least four environmental cases, granted injunctive relief to reduce environmental harm or pollution. Though suomotu actions have been taken by the court in India, the Bangladesh judiciary allowed such action in one case related to human rights, Moreover, the Indian courts made several directions on unconditional closure of tanneries and relocation, on payment of compensation for reversing the damage, to create experts and special committee in environmental cases, to pay the costs required for the remedial measures, on necessary measures to be adopted by the relevant Ministry to broadcast information relating to environment in the media, and to set up a committee to monitor the directions of the court, There is ample opportunity for Bangladesh judiciary to make the similar sort of innovative directions, and suomotu action in environmental cases. When the Indian courts applied the public trust doctrine, they have considered it not only as an international law concept, but also as one which is well established in their national legal system. The Indian Courts adopted similar innovative approach when they established polluter pays principle as a part of their national legal system. Accepting public trust doctrine as a part of common law, the Indian courts have applied this explicitly in three recent cases, one in 1997 and two cases in 1999 . This concept has not been applied in any environmental litigation in Pakistan and Bangladesh. However, their successful application in India shows that this doctrine can be used to remove difficulties in resolving tribal land disputes and cases concerning development projects planned by a Government. In M.C Mehta v. Kamal nath and others the court added that it would be equality appropriate in controversies involving air pollution, the disseminations of pesticide, the location of rights of ways for utilities, and strip mining of wetland filling on private lands in a state where Government permits are required. In both M.I builders PVT. LTD and Th. Majra Sings the court reconfirmed that the public trust doctrine has grown from article 21 of the constitution and has become part of the Indian legal thought process for quite a long time. Article 9 was explained again in the Salt Miners Case where the petitioner sought to enforce the right of the residents to have clear and unpolluted water. They contended if the miners were allowed to continue their activities, which were extended in the water catchment area, the watercourse, reservoir and the pipelines would contaminated. The court held in favor of the petitioner and said that if the water becomes contaminated, it would cause serious threat to human existence and the general public would be under serious threat. The court gave a broad meaning to the word life and stated that. The word life … cannot be restricted to a vegetative life or mere animal existence. In hilly area where access to water is scarce, difficult or limited, the right to have water free from pollution and contamination is a right to life itself. This does not mean persons residing in another part of the country where water is in abundance, does not have such right. The right to have unpolluted water is the right to every person wherever he lives. The cases discussed above show that the Pakistan judiciary has firmly established a right to healthy environment. The recent trend of case law suggests that it is difficult to have a clear-cut division between human rights and environmental cases. In most public interest litigation, both issues are argued and decided. As the 1980’s case studies in India show, the various categories of PIL covered mainly air, mining or forest conservation in broad manner. In 1990’s, the categories became more sophisticated and dealt with more complex areas of waste management protection of bio-diversity, access to environmental information, ground water management and relationship between labor rights and environmental rights. In Bangladesh and Pakistan, the public interest cases dealt with general aspects of environment, such as water as air or water pollution or challenging big development projects as well as complex aspects, such as water management or urban pollution. The following discussion shows that the categories of PIL in the latter two countries primarily deal with human rights related issues and concentrate on further exploring the fundamental rights to life. Thereafter, in the Taj Trapeziam Case the Supreme Court ordered a number of industries in the area surrounding Taj Mahal to relocate or introduce pollution abatement measures in order to protect the Taj Mahal from deterioration and damage. Following the decision of Vallore Citizen’s Case and Indian Council for Enviro-Legal Action Case, the Supreme Court described the environmental measures which anticipate prevent and attack the causes of environmental degradation. In S. Jagannath Case, the precautionary approach was relied on to curtail commercial shrimp farming in India’s coastal areas. The commercial user of agriculture lands and salt farms were discharging highly polluting effluent, and causing pollution water. Normal traditional life and vocational activities of the local population of the coastal areas were being seriously hampered. In M.C.Mehta (Tanneries) Case the principal was used when the Court wanted to relocate 550 polluting tanneries operating in Calcutta. In Bangladesh, in Radioactive Milk Case the petitioner, a potential consumer, submitted the writ petition in public interest stating that the consumption of the imported food item containing radiation level higher than the acceptable limit is injurious to public health and is a threat to life of the people of the country. A potential consumer’s right to life a suit has been recognized by this case. The Court simply assumed that such injury either occurred or were likely to occur and proceeded to issue remedial directions. In the Flood Action Plan Case, the Court took account of the seriousness of damage that could be caused to the environment by the project. However, the Court did not apply the development project. In Pakistan, the principle was found in Shehla Zia v. Wapda where citizens having apprehension against the construction of a grid station in a residential area, sent a letter to the Supreme Court. Their letter took account of two questions: (i) whether any Government agency has a right to endanger the life of citizen’s by its action without the latter’s consent: (ii) Whether zoning laws vest rights in citizens which cannot be withdrawn or altered without the citizens consent. The Supreme Court commented that:” The precautionary policy is to first consider the welfare and the safety of the human beings and the environment and then to pick up a policy and execute the plan which is more suited to obviate the possible dangers or make such alternate precautionary measures which may ensure safety. To stick to a particular plan on the basis of old studies or inconclusive research cannot be said to be a policy of prudence or precaution. 2.0 Sustainable Development and its application in the National Court Sustainable development reflects the principle of sustainable and equitable use of natural resources and its integration in the domestic legal system. As an umbrella concept, it tends to reconcile the conflicting goals of economic development and environmental protection, For South Asian countries, the conflict between trade, environment and development is a very crucial one and becomes apparent when people oriented development program clashes with environment. The uncertainty in relation to the elements of sustainable development and apparent contradiction between the objectives of development and of environmental protection make it difficult for this concept to achieve a definitive role in international environmental law. In the FAP case, the Bangladeshi court applied sustainable development in an indirect manner and gave priority to a development project funded by international donors. Taking an anthropocentric view, the court defined sustainable development which integrates a quality of life that is economically and ecologically sustainable. In most cases, the Indian judiciary gave priority to sustainable use of the natural resources, to preservation of biological diversity and to right of healthy environment for the present, and to certain extent, to the future generations. In spite of these Indian decisions, it is expected that our judiciary would give priority to the fundamental right to healthy environment. In 1994 BELA filed this Writ Petition 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. 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. Mohiuddin 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 Hon’ble 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 aforesaid judgment 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 Hon’ble Appellate Division granted prayer Leave. 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 authority 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 cancelled the project. A direction was issued upon the Secretaries, Ministry of Land, Home Affairs, Water Resources; Chairmen, Bangladesh Water Development Board and Bangladesh Inland Water Transport Authority and the Deputy Commissioners of Dhaka and Narayanganj requiring them to prepare and submit a report in the form of an action plan setting out a definite time frame and stating the measure to be undertaken for recovering the public property of the river Buriganga and evict the illegal encroachers as identified by a report of the Deputy Commission of Dhaka dated 5 February, 1998. The direction was issued by a division bench of the High Court following a Writ Petition No. 4098 of 1999 filed by BELA and required the report to be submitted within two months. The Hon’ble Court also issued a Rule Nisi upon the above state parties also including the Secretary, Ministry of Environment to show cause as to why they should not be directed to perform their legal duties in taking immediate appropriate measures for removing the illegal encroachment over the river Buriganga and protecting its environment and restoring the same in a manner best suited in the interest of the public. 2.1 Public Consciousness regarding Environmental Issues Bangladesh will face serious environmental problems in near future. The environmental condition is degrading day after day. Environmental degradation threatens all development endeavors. In the context of developing economics Bangladesh to faces a wide array of environmental problems which affect the well-being of its citizens. Bangladesh Government, NGOs and civil society has taken some policies and programs to control the environmental problems but these efforts are not fruitful. Lack of citizen’s response is cause of failure. Individual citizen response is essential for all development activities especially environmental activities. If the fruits of plans have to reach the common man, it will essential to ensure that at every stage of planning and implementation there is full participation of the citizens. Citizen’s response to various environmental issues such as air and water need to be properly studied and known. Findings of this study revealed that the level of understanding awareness and participation of the respondents are low. Along with many other recommendations, respondents put stress on acquiring environmental information and tree plantation to overcome this situation. 2.2 Recommendations Environment policies should be formulated to balance conflict of interest between livelihood requirements of the people and sound environmental resource management. The provisions of sectoral policies should therefore be critically analyzed to synchronization and ensure synergy. To ensure the feasibility of all national policies relevant to climate change, concerned policy makers should take measures on mitigation and adaptation process to build up central database and Management Information System (MIS). Since many environmental problems are partly due to non-enforcement of existing laws, the legal system should be strengthened. There is an immediate need for the amendment of the environment related laws to make those meet the demand of the time. Taking examples from the region, Bangladesh should seriously consider the inclusion of provisions in the Constitution to provide broad guidelines to environment protection. Alternative dispute settlement mechanism can be a viable option to initiate better protection of the environment. The non-governmental organization requires participating more in the policy making and making the politicians aware of the loopholes in the environment. A civil society initiative is in environmental issues. The Parliamentary standing committee should be made bound on environment and forests should be made bound to propose an amendment to the Constitution to include provisions on environment as a fundamental principle of state policy, as a fundamental right and as a public duty. 2.3 Conclusion The advancement of the relationship between human rights and the environment would enable the incorporation of human rights priciples within an environmental scope, such as anti-discrimination standards, the need for social participation and the protection of vulnerable groups. At the same time, the human rights system would be stregthened by the incorporation of environmental concerns, enabling the expansion of the scope of human rights protection and generation of concrete solutions for cases of abuses. The Environment of Bangladesh is in serious threat of green house effect and global warming. The government of Bangladesh should take effective steps to save the Environment of Bangladesh. The non- government organizations also can play a good role in this regard. The judiciary of Bangladesh has to be stricter to save the environment. As a mass people we also can make contribution in this field. At last it can said that the judiciary is trying to maintain effective role to save environment and to ensure healthy environment for all with lack of sufficient laws in this regard.
Posted on: Mon, 11 Nov 2013 12:29:27 +0000
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