CHAPTER – 2
Public interest Environment litigation as our rights development mechanism is one of the most important issue of the present scenarios of various legal sectors of our country. The term ‘public interest environmental litigation’ (PIEL), a new phenomenon in our legal system, is used to describe cases where conscious citizens or organizations approach the court bona fide in public interest. This is a significant new development from at least two points.
First, the courts are for the first time concerned with public interest matters. This is beyond the traditional role of the judges who previously adjudicated private disputes only.
Second, it involves a public law approach with respect to the rules of standing, procedure and remedies so that private citizens can advance public aims through the courts.
In Bangladesh, concerned citizens and organizations have challenged illegal detention of an innocent person for 12 years without trial, importation of radio-active milk” environmental damage resulting from defective flood action programmed”, appointment of the Chief Metropolitan Magistrate without prior consultation with the Supreme Court and so on. Within its scope, which is continuously expanding, Public Interest Litigation includes cases involving poverty related problems, police atrocities, illegal detention, environmental and consumer matters, health related problems, rights of children and women, minority affairs and other human rights issues.
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 so-called public activities are matters of the domain of public agencies, and the general public has no effective role or voice. The complex and conservative legal system has seemingly weakened people’s trust and confidence in it. In the back drop of such scenario, the arrogance of the defiant law enforcers can be effectively questioned, inter alia, by the people through the court as judicial scrutiny which is quite popularly known in most legal systems as public interest litigation initiated by concerned peoples or citizens groups and non government bodies. 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
Bangladesh is a country of 143,999 km2 with a population of 120 million people. The country is mostly flat land with some hills in the northern and eastern areas. It has a large area of mangrove forest along the coast of the Bay of Bengal, known as the land of rivers.
Bangladesh is particularly vulnerable to natural disasters such as floods and cyclones and it was in the wake of two consecutive floods in 1987 and 1988 that environmental issues assumed importance.
Traditionally, the people of Bangladesh, being the inhabitants of the flood plains of the huge deltaic ecosystem, lived in harmony with the nature as a result of which the values, life cycle, customs, usage, proverb and idioms re sound the tone of the chord of bond with the ecology. Bangladesh inherited a legal system introduced in the 19th and 20th centuries by the British. The basic structure of the system is built upon common law principles that promoted a feudal ownership concept and allocation with an absolute rent fixing and receiving authority.
Even huge resource bases like forests and fisheries were settled under the permanent settlement regulations in 1793 and possessed by the feudal lords. After the adoption of the State Acquisition and Tenancy Act in 1950 in the then East Pakistan, the feudal system was abolished and the estates were acquired by the State. The holders of various titles to resources become tenants of the State. The rent receiving interests vested in the State. However, the concept of different titles especially of “ownership” remained almost unfettered, and the management system continued to employ use-oriented approaches to harness optimal economic benefit. Public agencies became “feudal” over the management of public resources devoid of public input or accountability.
The term ‘public interest litigation’ (PIL) a new phenomenon in our legal system, is used to describe cases where conscious citizens or organizations approach the court bow fide in public interest.
In Bangladesh, concerned citizens and organizations have challenged illegal detention of an innocent person for 12 years without trial importation of radio-active milk environmental damage resulting from defective flood action programme,]appointment of the Chief Metropolitan Magistrate without prior consultation with the Supreme Court and so on. Within its scope, which is continuously expanding, PIL includes cases involving poverty related problems, police atrocities, illegal detention, environmental and consumer matters, health related problems, rights of children and women, minority affairs and other human rights issues.
This is a significant new development from at least two standpoints. First, the courts are for the first time concerned with public interest matters. This is beyond the traditional role of the judges who previously adjudicated private disputes only. Second, it involves a public law approach with respect to the rules of standing, procedure and remedies so that private citizens can advance public aims through the courts.
The basis of legitimacy of the law courts is impartiality. In the Common law based legal systems, including that of Bangladesh, this impartiality is safeguarded through an adversarial model of litigation. Thus the judge is a neutral umpire and is not supposed to intervene while the parties debate their case in front of him. So sacred is this impartial stance that it is believed that ‘bias even for a good cause is bias all the same’.
This system works well in most of the cases as long as they involve private disputes where the strengths of the parties are more or less evenly balanced. But when one of the parties is disproportionately poor and powerless, it becomes very difficult to litigate on equal terms. The disadvantaged party can afford neither the best lawyers nor the other resources available to his adversary. In private interest cases, this is the basis for providing legal aid to The poor The some problem crops un in public interest matters as well, those who are suffering, the people as a whole or a segment of the society, are often poor, ignorant, unorganized or afraid to approach the court. Since indifference and absolute reliance on the adversarial model would cause injustice, social activists advance PIL believing that ‘equal treatment of unequal is inequality.
2.2 -What is Public Interest Environment Litigation?
Public interest environment litigation describes legal actions brought to protect or enforce rights enjoyed by members of the public or large parts of it. Public interest Litigation”, in simple words, means, litigation filed in a court of law, for the protection of “Public Interest”, such as pollution, Terrorism, Road safety, constructional hazards etc. Public Interest Litigation is not defined in any statute or in any act. It has been interpreted by Judges to consider the intent of public at large.
When the words ‘public’ and ‘interest’ combine to form the term ‘public interest’, it becomes difficult to define due to a number of factors. The phrase is used in different disciplines including political science, economics and law with different connotations and from different perspectives. It again depends on the user and one’s purpose; from democrats to autocrats everybody uses it. Finally, it also varies from one jurisdiction to another. This confusion has led writers to say that ‘no general agreement exists about whether the term has any meaning at all’ and that the concept ‘makes no operational sense’
IN BLACK’S LAW DICTIONARY: “Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” Public Interest Litigation’s explicit purpose is to alienate the suffering off all those who have borne the brunt of insensitive treatment at the hands of fellow human being. Transparency in public life & fair judicial action are the right answer to check increasing menace of violation of legal rights. Traditional rule was that the right to move the Supreme Court is only available to those whose fundamental rights are infringed.
But this traditional rule was considerably relaxed by the Supreme Court in its recent.
Peoples Union for Democratic Rights v. Union of India (A.I.R.. 1982, S C 1473). The court now permits Public Interest Litigation or Social Interest Litigation at the instance of “Public spirited citizens” for the enforcement of constitutional & legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach court for relief. Public interest litigation is a part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the judicial door steps.
2.3-Characteristics & Determining Public Interest in a PIEL Cases:
In PIEL, the litigation must involve some clearly ascertainable public interest which is given due recognition and conscious preference with an aim to ensure collective justice. Apparently, three stages are involved in ideal cases:
- a. Public interest is given priority over special interests, private interests, group interests and vested interests. In other words, in a free competition of interests of different kinds, the interest of the public prevails;
- It is the judge who decides what public interest is by exercising his discretion. This thus is predominantly a matter of fact and is decided in a case to case basis;
- The discretion of the judge is exercised judiciously and not arbitrarily or whimsically. It may appear that ‘public interest’ is a vague and fluid concept, the meaning of which changes from time to time depending on the problem at hand. Accusations of vagueness, however, may be countered in several ways—-
Firstly, in most cases, we instantly know whether a matter involves public interest or not when we encounter it. Nobody needs special legal training to I appreciate that unhindered importation and distribution of radio-active milk is against public interest. In other words, in a good case, it is almost automatic that the element of public interest is recognized and appreciated.
Secondly, there is a whole body of PIL case laws already accumulated in India and Pakistan. We must also add the growing number of Bangladeshi cases to the list. We now have a considerable number of decided cases which the judges can follow in determining public interest elements in similar situations.
Thirdly, evidence of public awareness and reaction, especially through popular protests and newspaper reports, is a good indication for the judge that the matter at hand is one of public interest. However, a matter would not be a case of public interest merely because the public are interested in it.
Fourthly, the court may also lay down its own guidelines for entertaining PL cases. In India, the High Courts constituted PIL cells back in the 1980s to deal with PIL by distinguishing the good cases from the bad ones before the process of admission. In fact, rigidly specifying acts and issues as public interest matters would actually hamper the interest of the public, stifling the future growth of PL Public interest can be properly served only if there is a level of elasticity in the concept so that it can change its shape to meet the demands of time and social changes without rigors.
Although, the main and only focus of such litigation is only “Public Interest” there are various areas where a PIL can be filed. For e.g. Violation of basic human rights of the poor Content or conduct of government policy Compel municipal authorities to perform a public duty. Violation of religious rights or other basic fundamental rights. PIL may be distinguished from ordinary litigation in the following way. First, PIL is for the benefit of the people as a whole or a segment of the society. It aims to enhance social and collective justice and there must be a public cause involved as opposed to a private cause. This includes several situations:
- a. Where the matter in question affects the entire public or the entire community, e.g. illegal appointment of an unfit person as a government servant;
- b. Where the issue involves a vulnerable segment of the society, e.g. eviction of slum-dwellers with out any alternative arrangement;
Where the matter affects one or more individuals but the nature of the act is so gross or serious that it shocks the conscience of the whole community, e.g. rape of a minor girl in police custody.
Second, in the situations mentioned above, any individual or organization may approach the court. In other words, Pit involves liberalization of the rules of standing. This includes cases initiated suo motu; because the judge himself is a concerned citizen in such a case.
Third, the court adopts a non-adversarial approach as opposed to an adversarial system of litigation. This induces procedural aspects as well as the aspects of granting relief. As a result, the court may treat letters as writ petitions, appoint commissioners, award compensation or supervise and monitor the enforcement of its orders. In Bangladesh the use of legal mechanism as a tool produced various means and ends in addressing environmental injuries. The agenda of PIL was mainly based on strategic issues to generate awareness amongst the common people and all the actors for development of a realistic regulatory framework and parochial environmental jurisprudence. Following a BELA case in 1996, the concept of PIL was recognized by the judiciary that has allowed the millions of voiceless an access to the formal justice system. Meanwhile, BELA has instituted more than 40 cases on environmental issues. The cases involve wide range of issues including river pollution, industrial pollution, vehicular pollution, labor welfare, compensation for losses inflicted by development projects, encroachment of important wetland, and relocation of industry and so on. The issues are both national and local in nature. The major achievements of BELA in the filed of Public Interest Environmental Litigation (PIEL) include recognition of ‘right to environment’ as part of constitutional ‘right to life’; directive judgments with regard to against industrial pollution, vehicular pollution; payment of environmental compensation in development projects; river encroachment; unlawful filling of flood plain zones and so on. Why public interest litigation Public interest litigation is important because of several factors. Important among these are:
In most developing countries, the legal regime of environmental laws is weak and the laws are difficult to enforce and sometimes ambiguous. Public interest litigation has helped bridge this gap. Public interest litigation is important where the government is not willing to promote protect the environment. The government may not be willing to prosecute those who violate environmental laws and at times the government is a violator of environmental laws. In some jurisdictions an injunction can be brought to compel or stop the government from degrading the environment. In most developing countries Governments lack resources to prosecute and investigate all the criminal cases that take place within its jurisdiction. Public interest litigation enables individuals to bring action on behalf of the community, a role the government may not play.\Where criminal remedies are not enough, e.g. a fine may be too small compared to the amount of environmental degradation. A civil suit is well suited for orders such as restitution and compensation which may not be provided for by criminal laws of a country.
Where criminal remedies are not enforceable, e.g. where a crime is committed by a company and yet the punishment for the crime is imprisonment, it becomes hard to punish the company. Litigation on behalf of the public can be brought as a tort under negligence, nuisance and the rule of strict liability in Ryland’s Vs Fletcher.
- “Public Interest Litigation: Introduction” [Vol-20, Lawyear PP (1989)]
- Dr Mohiuddin Farooque v.Bangladesh Represented by Secretary Ministry Of Commerce and other (case note) (1 996) 438 DLR 48
- Dr Mohiuddin Farooque vs. Bangladesh (1997) (case note),(FAP2O) BLD 17
- International Conference on Environmental compliance & enforcement [ 5th editi (1991)]
- Syed Ahmed Istiaq : An Introduction frontier of judicial review on public interest litigation ( 3rd edi.1993,45 DLR)
- Farooque MI: “Judiciary in Bangladesh”:(2nd edi. 48 DLR 1996)
- Law, Oxfordm38 Basil Blackwell,18-48
- < http:// eoearth.orga/article/public interest litigation & the environment> accessed 28th November 2005
- < http: // wikipedia.org/wiki/public interest litigation > Accessed 4th August 2006
3.1-Origin of Public Interest Litigation (PIL) through Environment:
Prior to the 1980s, only the aggrieved party could approach the courts for justice. However, post 1980s and after the 2%emergency era, the apex court decided to reach out to the people and hence it devised an innovative way wherein a person or a civil society group could approach the supreme court seeking legal remedies in cases where public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PIL’s in the court. Filing a PIL is not as cumbersome as any other legal case and there have been instances when even letters and telegrams addressed to the court have been taken up as PIL’s and heard by the court. 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 so-called public activities are matters of the domain of public agencies, and the general public has no effective role or voice. The complex and conservative legal system has seemingly weakened people’s trust and confidence in it. In the back drop of such scenario, the arrogance of the defiant law enforcers can be effectively questioned, inter alia, by the people through the court as judicial scrutiny which is quite popularly known in most legal systems as public interest litigation initiated by concerned peoples or citizens groups and non government bodies. 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. Mohiuddin Farooque vs. The Election Commission & Others (47 DLR, p. 235) and Dr. Mohiuddin Farooque vs. Bangladesh & Others (Writ Petition No. 891 of 1994). 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. Mohiuddin Farooque vs. Bangladesh & Others (Writ Petition No. 998 of 1994) 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 PIL. 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”. First come in Bangladesh.
Public Interest Litigation Public interest litigation got great fillip with the emergence of Bangladesh Environmental Lawyers Association (BELA). At the instance of BELA high court Division prohibited environmental pollution during Dhaka City Corporation election in 1994, and strike by doctors working in the government hospitals causing untold sufferings to the patients. At the instance of BELA High Court Division in 1996 also directed the government to take measures to prevent import of contaminated foods from abroad. In those cases question of locus standi was not raised. In 1993, High Court Division held that president of Retired Government Servants’ Association has locus standi to file a writ petition on behalf of its members and that decision remained stayed till 1996 by the Appellate Division on appeal. BELA brought several public interest litigations for protection of environment, public health, prevention of pollution, enforcement of fundamental right of right to life, freedom of expression to prevent state control of Radio and Television, prevention of child trafficking, prevention of discrimination in public service against blind persons etc, but those are still pending for decision. On the application of a citizen High Court Division directed abstaining members of jatiya sangsad to attend the session of the Sangsad. On appeal that direction has been stayed by the Appellate Division.
3.2-Historical Background of Public Interest Litigation related with Environment:
PIEL is a term of US origin. In the US, PIL means ‘Public Interest Law’. But, in Bangladesh it means ‘Public Interest Litigation’, which is one of the tools used in a number of countries including the US in PIL movement. In this paper, I prefer to go for using the term for Public Interest Law relying on its original meaning.
Some of the PIL activities in countries of the world have been influenced by the PIL movement in the US, which had a particularly productive period in the 1950s, 1960s and 1970s. The US experience drew attention to the potential for law to serve as an instrument for change, and began the processes of thinking law not simply as a method of dispute resolution, but also as an instrument of social justice.
Different terms including ‘alternative law’, ‘developmental law’ and ‘structural legal aid’ have been used interchangeably with ‘public interest law’. Senator Jose W Diokno of the Philippines identified the major characteristics of what is often called ‘public interest law’ saying, ‘…. development requires a different type of legal aid…. concentrating on public rather than private issues, intent on changing instead of merely upholding existing law and social structures, particularly the distribution of power within society’.
A scrutiny of PIL in various jurisdictions demonstrates a very interesting pattern. PIL first emerges as a result of expressions of social commitment of conscious individuals. Then it faces an initial period of recognition problem. Eventually, it breaks down the traditional constrains. Once successful, it is treated as a major development and becomes a permanent feature of the legal system. Finally, this success in its part inspires other jurisdictions to follow the same route. PIL thus travels from one jurisdiction to another.
However, development of PIL is closely dependent on the constitutional culture and historical experience of the people. Therefore, its history in each jurisdiction is unique. The present chapter outlines the historical background & development of PIL which have immensely influenced the Bangladeshi developments, which will be examined in the next chapter.
The term PIL, as it is now known, and the associated term ‘public interest law1, were first coined in the United States. While arrogant capitalism and excessive individualism often typifies the American society, there is also a strong tranquil current of collectivism and social mindedness. This concern for the society has brought many changes during this century. In the legal field, it has brought new techniques, mechanisms, approaches and procedures in favour of the collective interest. Public interest law includes a number of these developments including legal aid, research, formation of public opinion, lobbying and litigation conducted by specialized lawyers and organizations. PIL, litigation in the interest of the public, is thus only one of the various methods of the greater movement of public interest law. There are a number of movements that may be identified as the roots of public interest law and have shaped its ‘patterns of organization, modes of financing and choices of strategies’
The first major root of public interest law may be traced to the legal aid movement that started during the 1870s. Legal aid movement brought two new features to the established system. One is that pro bono work became institutionalized. The other is that it reflected not an individual lawyer’s concern but the concern of the community that was often subsidized by a third party benefactor. By the first half of the century, legal aid became a regular and established feature. Public interest lawyers borrowed the organizational form of legal aid firms. On the one hand, there was commitment and enthusiasm to serve the people. On the other hand, they were professionals with independent offices, salaried staff and full time devotion.
The second root of public interest law lies in the works of the Progressive Era Reformers. At the turn of the twentieth century, during the time of rapid industrialization and social and political changes, a movement aimed to check the evils of unregulated business enterprises achieved remarkable success. New legislation aimed to protect the workers and consumers and monitoring institutions like the Federal Trade Commission came up to defend collective rights.
Progressive Era Reform helped to advance the philosophical basis of public interest law as it proceeded with the assumption that the Government should intervene in the economic life of the society so that the market does not operate in a way injurious to public welfare. Another contribution of the progressive legacy is that it focused on the self-realization of the lawyers; their commitment and obligation to the society. The third root directly antecedent of public interest law is the American Civil Liberties Union (ACLU) and its offshoot the National Association for the Advancement of Colored People Legal Defense and Education Fund (NAACP/LDF). ACLU was founded during the World War I and was mainly a citizens’ lobbying group. It worked to protect the democratic rights of the citizens including rights to free speech and due process. With the help of a network of volunteer lawyers, ACLU acted as a watchdog of governmental corruption and abuse of power.
3.3-ROLE OF PUBLIC INTEREST ENVIRONMENTAL LITIGATION (PIEL) IN COMPLIANCE AND ENFORCEMENT:
Public Interest Environmental Litigation generates awareness, educates the actors and creates values in the society even if the case is lost in a court of law on technical grounds. Such efforts also bring changes in the behaviour, however limited, which may become significant and unavoidable norm eventually. It is further an attempt to resolve the intra and inter sectoral conflicts of law on mandatory delimitation. Legal mechanism and the role of judiciary have proved to be very effective process in any advocacy or activism. It has been quite successfully used in many countries like India (Sangal, 1992). Although in most cases on environment the judiciary may not respond the way an activists would like (due to its own limitation), such attempts create awareness that marks the making or remolding of values in the society.
The impact of Public Interest Environmental Litigation may not always be visible but may also be the initiation of a process which in the long run would provide tangible dividends. One such example can be cited in this regard as observed from the writ petition no. 186/94 (BELA vs. The Election Commissioners and Others). In this case the failure of the Election Commission and other law enforcing agencies in preventing the candidates from violating laws in the name of election campaign for the post of Mayor and Commissioners of the Dhaka City Corporation (capital city of Bangladesh) was raised in january 1994. All the campaigners of the candidates defaced peoples property, encroached on public streets and pavements and used too many loud speakers disturbing peace for the people and creating pollution. The High Court Division directed the respondents to show cause as to why the election shall not be postponed since it was not being conducted in accordance with the law. All the respondents appeared and the major political parties joined as respondent to make commitment that all illegal acts would be stopped and removed.
The Attorney General ensured that funds would be placed to repaint peoples property. The impact of this case can be partly evaluated now as follows: the law enforcing agencies assessed their extent of statutory sanction; political parties nay the nation came to know that what they had been doing and witnessing for more than half a century as “election culture” was not lawful and people could challenge such acts and failures. During the recent June 1996 parliamentary election there was hardly any wall writing or electioneering boxes on public properties or rampant use of loud speakers. The credit for such situation, inter alia, should also go to the litigation of BELA for the case which was well publicized. Development programmes are undertaken administrative sector-wise by sector ally compartmentalized public agencies, activities on any of the key sectors create major impact on the other because the institutional linkages or the coordination mechanism do not exist or operate (Government of Bangladesh, 1991).
Therefore most of the laws which have bearing on environment and ecology are sectoral enactment either as substantive legislation and/or, as statute on institutional framework explaining powers and functions. The agencies are protected by their empowering laws against legal action and citizens are generally barred from having recourse to the provisions of these laws. Most of these laws are either not enforced or applied in a manner incompatible to their conservation and sustainability spirit. The utilization of constitutional remedy through the initiation of Public Interest Environmental Litigation showing violation of fundamental rights has been found to be effective in activating the provisions of such laws in public interest.
In one case against indiscriminate, unlawful and unauthorized cutting or razing of hills the court ordered the Department of Environment to submit a status report taking necessary assistance from other concerned agencies?
The petition field by BELA for minimization of vehicular pollution would require close coordination among the activities of different organs having chain reaction of the issue. Neither legal rights nor interests can be extinguished without appropriate compensation. Many of the adverse local social and environmental impacts induced by development projects could be avoided or minimized if the procedures of law were followed. In the context of payment of compensation for undertaking development programmes it has been in practice to award the same only to persons affected by the acquisition of land. But some laws contain provisions for claiming compensation by the affected people for damage of rights of fishery, drainage, use of water or other right of property.
The jurisdiction of the High Court Division has been invoked by BELA claiming implementation of a project in consonance with legal requirements for payment of compensation to the affected people for all sorts of losses which are legally recoverable. On hearing the parties, the High Court Division observed that “in implementing the project the respondents cannot with impunity violate the provisions of law … We are of the view that the Flood Action Plan-20 Project work should be executed in complying with the requirements of law”.
After pronouncement of the judgment BELA assisted the affected local people in submitting claims for compensation to the appropriate authority. In the meanwhile the concerned authority for implementation of project has initiated steps for setting out parameters basing on which the compensation for all other sorts of damages to be assessed and paid.
The land use pattern in the country has been the prime cause for current trend of rapid degradation of environment. Unplanned and unregulated utilization of lands either owned by public or private entities have further been aggravating the situation. However, inconsiderate and indiscriminate authorization for use of land in a manner incompatible with traditional land use pattern leading to disputes between traditional and alternated land users. The authorization and utilization of lands for various purposes without paying necessary heed to environmental consequences have been creating a chaotic situation leading to mis-management having negative impact upon overall administration of the country’s land resource.
Particularly, the management of public land is the worst hit sector which requires some modification and accountability for sustainable resource exploitation. Some of the cases field by BELA regarding the use of public land is aimed at strict compliance of legal norms for land management. In such cases the High Court Division stayed the effectiveness of such unlawful attempts and we hope that the verdict announced on full length hearing of those petitions would act as a barrier in exercising the land management practice. The number of appeals that have entertained so far start from grievances of the civil servants down to the poor landless to protect their statutory and traditional rights and Professions. The process of empowering the large section of the downtrodden populace has been the central objective of the activity of BELA which has been to some extent materialized through the initiation of Public Interest Environmental Litigation to prevent the abuse under various disguise. It has responded to every call whether directed to it or from the news received from the media to stand for the people of different parts of the country within the limited resources.
Public Interest Environmental Litigation can effectively be initiated in respect of disaster happened due to any development work where EIA and access to its review procedure is mandatory. Since disaster or environmental management measures are described and proposed in EIA, it would be easier to challenge in times of disaster whether those commitments have been fulfilled. In a recent gas explosion incident in Bangladesh occurring from a drilling well, the EIA has been the crucial issues for litigation.
Public Interest Environmental Litigation has contributed in strengthening the capacity of the concerned institution in implementing duties and responsibilities as enumerated in the sectoral laws aiming to maintain environmental standard. The notion of law enforcement has taken such a shape where it can be said that non enforcement makes laws non existent. Such non enforcement of laws may also be attributed to a number of other reasons hindering the sustainable development. Through Public Interest Environmental Litigation the concerned authority is directed to carry out the duties stated in the respective statute which gradually making the development environment friendly through compliance of legal principles.
3.4- Legal frame work of Public Interest Litigation in preserving Environment:
Law or a law-related framework is used in the PIL movement in furtherance of its objectives. Law, if used creatively, can be one source, among a number of sources, which enables people to mobilize and engage in positive action to better their lives. The amount of time and resources PIL groups spend working within the state-administered legal system depends on the nature of that system. If the rule of law is upheld in a country and the legal system commands credibility, then there will be a tendency to use the formal legal mechanisms within that system. Where the rule of law is absent, and/or the legal system does not command much credibility, PIL groups will tend to work outside the system, although again, they may, on occasion and in a specific context, use a particular legal mechanism or channel.
For example, the legal system has more credibility in some former British colonies. In Bangladesh, India, Sri Lanka and Malaysia, there has been a tendency to work within the confines of the state-administered legal system. While this may have some positive aspects, it has also generated some negative ones. Except perhaps in India, few groups in the other countries have looked for new and imaginative ways of using law and law-related strategies. By contrast, in Indonesia and the Philippines, where public institutions, including the judiciary, do not command much confidence, there has been a search for other, more legitimate and credible institutions. There, by refusing to stick within the confines of the formal legal system, the public interest law movement has been more creative and dynamic. On two occasions the question of “standing” of Bangladesh Environmental Lawyers Association (BELA) was kept open, i.e., Dr. Mohiuddin Farooque vs. The Election Commission & Others ( 47 DLR, p. 235) and Dr. Mohiuddin Farooque vs. Bangladesh & Others (Writ Petition No. 891 of 1994). 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. Mohiuddin Farooque vs. Bangladesh & Others (Writ Petition No. 998 of 1994) 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 PIL. 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”.
3.5-Development of PIL for preserving Environment:
Beginning of Public Interest Cases (1987-1990)
After the withdrawal of martial law, from 11th November 1986, the Supreme Court started functioning with respect to its original writ jurisdiction”. General Ershad’s democracy was controlled and guided, elections were held but failed to ensure the legitimacy he desired. The limited democratic practice, however, gave the Court some opportunity for a more active role. In 1988, the Eighth Amendment of the Constitution made Islam the state religion and decentralized the higher judiciary. This decentralization was successfully challenged in the Court, resulting in one of the most important of all post liberation judgments.
In Anviar Hossain Chowdhwy v. Bangladesh 8th Amendment casethe amended Article 100 of the Constitution was challenged as ultra virus. The Court, by a majority judgment of three against one, declared that the basic structure of the Constitution can not be altered and as such the amendment was void”.
The Court not only confirmed its power of judicial review, it preceded to discus various aspects of constitutionalism in Bangladesh and judicial activism. In this judgment the principle of the supremacy of the Bangladesh Constitution, the validity and authority it derives from its autochthony and the imperative nature of its dynamism were established. The judgment was a severe blow to General Ershad’s authority and enhanced the prestige of the Court enormously. Whenever the authority of judiciary was to be decided vis-à-vis other governmental organs. As such this case is sometimes described as a forerunner of PIL case”.
Defying General Ershad’s autocratic regime, concerned citizens started coming to the Court with their petitions. The first group of petitions came in the nature of quo warranto, since such proceedings do not require the petitioner to have a personal grievance. The position of quo warranto petitioners was strengthened in M Mostafa Hossain v. Sikder M Faruque and another, where BH Chowdhury CJ reaffirmed that in a writ of quo warranto challenging authority of a person holding public office, any citizen, irrespective of personal grievance can come to the Court. In that case, the Court even rejected a compromise petition on the ground that a matter of great public interest was involved.
In Saiyid Munirul Huda Chowdhuiy v. AKM Nurul Islam”.an advocate challenged the appointment of the Vice President of Bangladesh on the ground that he formerly held the office of Chief Election Commissioner and as such Article 118(3) (a) of the Constitution disqualifies him for a ‘service of the Republic’. MS Ali J. held that the office of the Vice President is excluded from the category of persons holding an ‘office of profit in the service of the Republic’ and summarily dismissed the petition.
However, these cases dealt mainly with the political rights of the applicants. Even in the few cases where the subject matter is not political, they represent concerns of the middle classes rather than those of the poor or the socially deprived.
3.6-Development of Public Interest Litigation in Bangladesh:
Development of Public Interest Litigation has been gradual. Before its introduction in Bangladesh, it successfully developed in several other jurisdictions. The term ‘public interest litigation’ was first used in the USA in the late 1960s and early 1970s when a special type of cases sought to represent the underrepresented interests of the society in law courts. It came as a part of the greater movement of ‘public interest law’ that included legal aid, alternative dispute resolutions, lobbying and so on. Funded by voluntary sector organizations, lawyers organized themselves into public interest law firms. Success of PIL in the USA influenced other jurisdictions including Canada, Australia and England. The English judges, and subsequently the lawmakers, gradually liberalized the principles of locus standi enabling concerned citizens to approach the court for public interest. However, the most remarkable development of PIL took place in India in the early 1980s.ln the aftermath of the emergency period, there was a rapid expansion of free press and activities of voluntary sector human rights groups. A number of judges proceeded as social activists and induced and led a major change of the traditional law by introducing Pit. Accordingly, any person can activate the court to safeguard the interest of the public, especially those of the poor and vulnerable section of the community. This new development was seen as a constitutional imperative to attain social justice. Pakistan joined the club in the late 1980s after the restoration of democracy. The judges introduced Pit on the ground that the Islamic social justice precepts of the Constitution validate a Pit approach”.
Advancement of PIL in Bangladesh coincided with the restoration of democracy. Some attempts to introduce PIL in Bangladesh started since 1992. Initially, it was difficult to overcome the threshold problem. However, relentless efforts of the social activists enabled the progressive minded judges to interpret the Constitution liberally through a series of cases. When success finally came in 1996, the Supreme Court not only found that Public Interest Litigation is valid under the constitutional scheme, but that the Constitution mandates a Public Interest Litigation approach
4.1- Public interest litigation in the regime of Environmental Law of Bangladesh:
The constitution of Bangladesh does not explicitly provide for the right to healthy environment either in the directive principles or 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. It added that the citizens and the residence of Bangladesh have the inalienable right to be treated in accordance with law. If these rights are taken away, compensation must be paid. Article 32 states: “No person derived of life or personal liberty saves in accordance with law.” These Two Articles together incorporate the fundamental right to life.
In 1994, public Interest litigation was initiated before the Supreme Court dealing with air and noise pollution. The Supreme court agreed with the argument presented by the petitioner that the constitutional right to life’ does extend to include right to a safe ad healthy environment. (footnote). In a recent case, the Appellate division and the High court Division of the Supreme court have dealt with the question in a positive manner.
The Appellate Division in the case of Dr.M. Faroqueb=v=Bangladesh has reiterated Bangladesh’s commitment in the context of engaging concern for the conservation of Environment, irrespective of the locality where it is threatened. This was a full court consensus judge met and the court decided:
“Article 31 and 32 of our constitution protect right to life as a 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 violated of the said right to life.
The High Court Division in the same case (footnote) expended the fundamental right to life to include anything’s that affects life, public health and safety.
4.2- A brief description of FAP- 20 Case and Reason for granting Locus Standi :
With regard to Environmental issues, thecae laws and the recognition of Bangladesh is of recent development. The Laws relating to Environment applied Environmental courts, applied under the Environmental Courts Act, 2000. But when there is no officious remedy the High court Division of the Supreme Court is the only the light of hope to establish the Environmental rights. Public Interest Litigation Public interest litigation got great fillip with the emergence of Bangladesh Environmental Lawyers Association (BELA). At the instance of BELA high court Division prohibited environmental pollution during Dhaka City Corporation election in 1994, and strike by doctors working in the government hospitals causing untold sufferings to the patients. At the instance of BELA High Court Division in 1996 also directed the government to take measures to prevent import of contaminated foods from abroad. In those cases question of locus standi was not raised. In 1993, High Court Division held that president of Retired Government Servants’
Association has locus standi to file a writ petition on behalf of its members and that decision remained stayed till 1996 by the Appellate Division on appeal. BELA brought several public interest litigations for protection of environment, public health, prevention of pollution, enforcement of fundamental right of right to life, freedom of expression to prevent state control of Radio and Television, prevention of child trafficking, prevention of discrimination in public service against blind persons etc, but those are still pending for decision. On the application of a citizen High Court Division directed abstaining members of jatiya sangsad to attend the session of the Sangsad. On appeal that direction has been stayed by the Appellate Division.
Question of locus standi has finally been settled by the Appellate Division in the Flood Action Plan case brought by Dr. Mohiuddin Faruk, founder secretary of BELA in 1996 holding that any member of the public suffering a common wrong, common injury or common invasion of fundamental rights of an indeterminate number of people or any citizen or an indigenous association espousing such cause has locus standi. Before and after that decision BELA, ain o shalish kendra, Bangladesh Legal Aid Services Trust, Bangladesh National Women Lawyers’ Association, Bangladesh Nari Progati Sangha, Bangladesh Mahila Ainjibi Samiti, bangladesh mahila parishad and many public spirited persons brought public interest litigations before the High Court Division for redress of the grievances of the deprived sections of the people.
Since locus standi has been liberalized in 1996, some of the public interest litigations have been disposed of by the High Court Division in 1997. In Flood Action Plan Case the government was directed to protect the environment and ecology and to observe relevant provisions of law in executing the flood protection scheme. In 1999, High Court Division directed Rajdhani Unnayan Kartripaksha (rajuk) not to reduce the area of park and other common facilities by covering the same into residential or commercial plots in Uttara model town. Earlier in a case, High Court Division declared that park in Gulshan residential area should be maintained free from nuisance for the protection of health and hygiene of the residents of that area. That Division also directed removal of bar fetters of a prison detainee, and also released a woman in handcuffs from safe custody. That Court also stayed construction of a market building on the site earmarked for car parks, filling up of a lake, and eviction of slum dwellers in the Dhaka City.
With the liberalization of locus standi public interest litigation has great prospect in ameliorating the conditions of the downtrodden and deprived sections of the people, and bringing successor to their sufferings making the assurances of fundamental rights in the Constitution a reality in their lives. But there is also the danger of flooding the court with unnecessary litigations at the instance of busybodies posing as public spirited persons, and thereby unnecessarily burdening the High Court Division which is already overburdened with cases which take years together for disposal, and thus causing undue hardship on the litigant public. This crisis can be averted if the court remains vigilant at the inception, and meticulously examines the bonafide of the petitioner to seek redress through public interest litigation. [Kazi Ebadul Hoque]
4.3-Objective of PIL through Environment:
The board objective of BELA is to promote environmental justice and contributes towards the development of sound Environmental jurisprudence. The specific objectives of the organization are including:
1) Undertake studies on and research on the local, national or international regulatory regime on environment.
2) Undertake legislative advocacy
3) Seek Judicial or administrative relief to ensure implementation of existing environmental laws.
4) Resolve environmental disputes through court cases, alternative dispute resolution, mediation and other means.
5) Create greater awareness about environmental laws and issues.
6) Initiate participatory process to ensure environmental good governance
7) Provide legal assistance and support endeavourers for protection of the environment and associated human rights.
8) Develop and core group of environmental activities.
Public Interest Litigation describes legal actions brought to protect or enforce rights enjoyed by members of the public or large parts of it. It has been a tool of great social change in many countries like India, Bangladesh, and Uganda on such issues like environment, public health and tobacco control. It can be used as a means through which the law can be enforced as a way of increasing or enhancing compliance with tobacco control measures.
PIL is brought before the court with the objective of promoting and vindicating public interest which demands that violation of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantageous position should not go unnoticed and redress.
It is fact that most of the people of Bangladesh as well as of the third would countries live below subsistence level. And only because of the prohibitive cost of litigation, they cannot even think of going before the court of law for justice denied to them by someone or by the government itself. So the lawyers, magnanimous individuals and social service organization (NGO) are the only one who can come forward for the cause of justice to these poor arid disadvantaged people. And indeed to enable those lawyers, magnanimous individuals and the NGOs to initiate litigation in favor of the aggrieved, the concept of public interest litigation has been originated and developed by the courts.
4.4- Conceptual Distinction among the Public Interest Litigation and Ordinary Litigation:
Public Interest Litigation may be distinguished from ordinary litigation in the following way:- First, PIL is for the benefit of the people as a whole or a segment of the society. It aims to enhance social and collective justice and there must be a public cause involved as opposed to a private cause. This includes several situations:
(a) Where the matter in question affects the entire public or the entire community, e.g. illegal appointment of an unfit person as a government servant;
(b) Where the issue involves a vulnerable segment of the society, e.g. eviction of slum-dwellers with out any alternative arrangement;
(c) Where the matter affects one or more individuals but the nature of the act is so gross or serious that it shocks the conscience of the whole community, e.g. rape of a minor girl in police custody.
Second, in the situations mentioned above, any individual or organization may approach the court. In other words, Pit involves liberalization of the rules of standing. This includes cases initiated sue motu; because the judge himself is a concerned citizen in such a case. Third, the court adopts a non-adversarial approach as opposed to an adversarial system of litigation. This induces procedural aspects as well as the aspects of granting relief. As a result, the court may treat letters as writ petitions, appoint commissioners, award compensation or supervise and monitor the enforcement of its orders.
In short, Public Interest Litigation may be described as a type of litigation where the interest of the public is given priority over all other interests with an aim to ensure social and collective justice, the court being ready to disregard the constraints of the adversary model of litigation. Thus when conscious citizens or organizations, with bonafide intentions, approach the court for the interest of the public in general or a disadvantaged or under privileged segment of the society and not for any private, vested, special or group interest, it is termed as ‘public interest litigation’. An injury to the public interest will be apparent only when some constitutional or legal rights, privileges or benefits are affected or where a constitutional or legal duty or obligation has not been performed. Pit becomes a necessity when protection of law is unavailable to the public or a segment of it due to ignorance, poverty, fear or lack of organized endeavor. Public interest litigation describes legal actions brought to protect or enforce rights enjoyed by members of the public or large parts of it. It has been used as a tool for great social change in India, Pakistan, Bangladesh, Tanzania, Uganda, Australia, the Philippines, etc., on such diverse issues as the environment, health and land issues.
Chapter – 5
5.1- What are the procedures of PIL through the Environment?
PIL, in simple words, means litigation filed in a court of law for the protection of ‘public interest’. It has been interpreted by judges to consider the intent of public at large. Although the main and only focus of such litigation is ‘public interest’ there are various areas where a PIL can be filed. For example, violation of basic human rights of the poor, content or conduct of government policy, compel municipal authorities to perform a public duty, violation of religious rights or other basic fundamental rights etc.
In the case of a private factory in Dhaka, causing pollution, then people living in its vicinity or any other person can file a PIL against the Government of Bangladesh, the State Pollution Board and also against the private factory.
However, a PIL cannot be filed against the private party alone; the concerned State Government and State authority has to be made a party”.
(a) Procedure in the High Court Division:
A PIL is filed in a High court, and then two copies of the petition have to be filed. Also, an advance copy of the petition has to be served on the each respondent, i.e. opposite party, and this proof of service has to be affixed on the petition. In Supreme Court:
If a PIL is filed in the Supreme Court, then (four + one) (i.e. five) sets of petition have to be filed. The opposite party is served the copy only when notice is issued.
(b) Court Fee:
A Court fees of taka 100. So, per Respondent (i.e. for each number of opposite party, court fees of taka. So) has to be affixed on the petition.
(c) Steps Involved:
Proceedings, in the PIL commence and carry on in the same manner, as other cases However, in between the proceedings if the judge feels he may appoint a commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems etc. After filing of replies, by opposite party, and rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision.
5.2. How to file Public Interest Environmental Litigation?
A PIL may be filed like a write petition. However, in the past the SC has treated even letters addressed to the court as PIL. In People’s Democratic Union vs. Union of India, a letter addressed by the petitioner organization seeking a direction against the respondents for ensuring observance of the provisions of famous labor laws in relation to workmen employed in the construction work of projects connected with the Asian games was entertained as a PIL. The SC has encouraged the filing of PIL for tackling issues related to environment, human rights etc”.
In the past, many people have tried to misuse the privilege of Pill’s and thus now the Court generally requires a detailed narration of facts and complaint, & then decides whether to issue notice and call the opposite party. However, as there is no statute laying down rules and regulations for a PIL; the Court can treat a letter as a Public Interest Litigation, The letter should bring the true & clear facts, and if the matter is really an urgent one, the court can treat it is a PIL But still it depends upon facts and circumstances, and court has the entire discretion.
5.3. Strategies for PIEL:
The allegations against state and private party should be backed by reliable evidence, for eg in a PIL on malnutrition deaths you need reports indicating it and data of the state regarding child mortality rates from various government surveys. Research based evidence will hold well in a PIL. It will be good to make an NGO working on the issue a party to the petition, if there can be more than one organization agreeing on an issue it will hold more ground in the court. A good lawyer with an experience in PILS will add advantage for the success of the PIL.
5.4-Who can file public interest Environmental litigation?
Any public-spirited person can file a Public Interest Litigation case (PIL) on behalf of a group of persons, whose rights are affected. It is not necessary, that person filing a case should have a direct interest in this Public Interest Litigation.
For example: A person in Dhaka can file a Public Interest Litigation for malnutrition deaths in Rajshahi. Someone can file a PIL in the Supreme Court for taking action against a cracker factory that’s employing child labor. Any person can file a PIL on behalf of a group of affected people.
However, it will depend on the facts of the case, whether it should be allowed or not.
The Supreme Court (SC), through its successive judgments has relaxed the strict rule of locus Sandi applicable to private litigation.
5.5- A PIEL can be filed when the following conditions are fulfilled:
There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority. It is for the enforcement of basic human rights of weaker sections of the community who are downtrodden, ignorant and whose fundamental and constitutional rights have been infringed. So, it must not be frivolous litigation by persons having vested interests”.
5.6- When a PIL can be filed:
A PIL can be filed only in a case where ‘public interest’ at large is affected. Because of merely one person affected by state inaction not a ground for a PIL. Following are some of the possible areas where a PIL can be filed.
(i) Where a factory or industrial unit is causing air pollution and people nearby are getting affected.
(ii) Where, in an area or street there are no streetlights, causing inconvenience to commuters.
(iii) Where there is regular loud ‘making’ in a residential area causing noise pollution. Where there are some construction of a building and cutting down trees, causing environmental pollution.
(iv) Where poor people are affected because of government’s arbitrary decision to impose heavy-‘tax’.
(v) For directing the police or jail authorities to take appropriate decisions in regards to jail reforms, such as segregation of convicts, delay in trial, production of under trial persons before the Court on remand dates.
(vi) For abolishing child labour, and bonded labour.
(vii) Where rights of working women are affected by sexual harassment.
(viii) For keeping a check on corruption and crime involving holders of high political office.
(ix) For maintaining roads, sewer etc in good condition.
(x) For removal of big hoarding and signboard from the busy road to avoid traffic problem”.
5.7. Against whom can be filed public interest litigation through the Environment?
A Public Interest Litigation can be filed only against a State j Central Government, Municipal Authorities, and not any private party. However a “Private party” can be included in the Public Interest Litigation as a “Respondent”, after making the concerned State authority a party.
5.8- DIFFERENT WAYS TO FILE A PIEL:
The different ways PIL can be filed in the Supreme Court and High Courts are;
- Sending letter petitions with relevant facts and documents to the Chief Justice of the concerned court. The matter must be sent by registered post.
- By directly filing the PIL in the court through the Free Legal Service Committee of the court.
- Directly filing the case with the help of any PIL lawyer.
- Filing the case through NGOs or PIL firms.
5.9-POINTS TO BE FOLLOWED WHEN FILING PIEL:
- Discuss the legal issue with the affected people thoroughly.
- Find out whether the matter infringes on the fundamental rights of the people or not. It is also important to specify which fundamental rights have been violated.
- Help the people to decide whether legal action must be taken in the court to enforce their rights or to prevent the violation of their rights.
- Write out a petition with all the facts and details, dates, etc,
- Specify in the petition the type of relief wanted by the people.
- Get the signatures of all the affected people, if possible.
- Collect all the available documents, paper clippings, photographs, investigation reports, certificates and affidavits related to the issue and attach them to the main petition as annexure.
- If possible, consult a socially conscious lawyer or the members of the local legal aid society before sending the petition.
- Send the registered petition to the Chairman of the High Court Legal Services Committee of the respective High Court or to the Chairman of the Supreme Court Legal Services Committee.
5.10- MAJOR ENVIRONMENTAL ISSUES FACING BANGLADESH:
Regional / Global
- Ecological changes due to shared water disputes
- Maritime boundary dispute and a weaker regime on marine resources
- Green house effect and its consequence on Bangladesh
- Refugees and migration
- Ecological effect caused by transfrontier activities
- Population and poverty
- Degradation of resources (anti-people and uncoordinated)
- Conflict of development with environment illiteracy Vs ignorance
- Pollution: water, air, soil
- Destruction of mangrove, tree cover and firewood
- Loss of fisheries
- Unplanned human settlement
- Unplanned urbanization and industrialization
- Loss of wildlife
- Natural hazards
5.11-Interim measures to protect the Environment
There are many kinds of remedies, which can be given in a PIL, to secure the public interest. First comes the interim measure. The court can afford an early interim measure to protect the public interest till the final order, for example.
- Release of under trial on personal bonds ordering release of all under trial persons who have been imprisoned for longer time than the punishment period, free legal aid to the prisoners, imposing an affirmative duty on magistrates to inform under trial prisoners of their right to bail and legal aid. Or
- Closure of Industrial plant emitting poisonous gas, setting up victim compensation scheme, ordering the plant reopening subject to extensive directions etc. Or
- Prohibiting cutting of trees or making provisions for discharge of sewage, till the disposal of final petition.
In fact, relief in most of the PIL is obtained through interim orders. Moreover, the court may appoint a committee or commissioner to look into the matter, and submit its report. Such a committee or commissioner may also be given power to take cognizance of grievances and settle it right in the public intent. And finally had comes final order by way of direction to comply within a stipulated time.
The agencies are protected by their empowering laws against legal action and citizens are generally barred from having recourse to the provisions of these laws. Most of these laws are either not enforced or applied in a manner incompatible to their conservation and sustainability spirit. The utilization of constitutional remedy through the initiation of Public Interest Environmental Litigation showing violation of fundamental rights has been found to be effective in activating the provisions of such laws in public interest. In one case against indiscriminate, unlawful and unauthorized cutting or razing of hills the court ordered the Department of Environment to submit a status report taking necessary assistance from other concerned agencies. The petition field by BELA for minimization of vehicular pollution would require close coordination among the activities of different organs having chain reaction of the issue.
Neither legal rights nor interests can be extinguished without appropriate compensation. Many of the adverse local social and environmental impacts induced by development projects could be avoided or minimized if the procedures of law were followed. In the context of payment of compensation for undertaking development programmes it has been in practice to award the same only to persons affected by the acquisition of land. But some laws contain provisions for claiming compensation by the affected people for damage of rights of fishery, drainage, use of water or other right of property. The jurisdiction of the High Court Division has been invoked by BELA claiming implementation of a project in consonance with legal requirements for payment of compensation to the affected people for all sorts of losses which are legally recoverable.
On hearing the parties, the High Court Division observed that “in implementing the project the respondents cannot with impunity violate the provisions of law … We are of the view that the Flood Action Plan-20 Project work should be executed in complying with the requirements of law”. After pronouncement of the judgment BELA assisted the affected local people in submitting claims for compensation to the appropriate authority. In the meanwhile the concerned authority for implementation of project has initiated steps for setting out parameters basing on which the compensation for all other sorts of damages to be assessed and paid.
The land use pattern in the country has been the prime cause for current trend of rapid degradation of environment. Unplanned and unregulated utilization of lands either owned by public or private entities have further been aggravating the situation. However, inconsiderate and indiscriminate authorization for use of land in a manner incompatible with traditional land use pattern leading to disputes between traditional and alternated land users. The authorization and utilization of lands for various purposes without paying necessary heed to environmental consequences have been creating a chaotic situation leading to mis-management having negative impact upon overall administration of the country’s land resource. Particularly, the management of public land is the worst hit sector which requires some modification and accountability for sustainable resource exploitation. Some of the cases field by BELA regarding the use of public land is aimed at strict compliance of legal norms for land management.
In such cases the High Court Division stayed the effectiveness of such unlawful attempts and we hope that the verdict announced on full length hearing of those petitions would act as a barrier in exercising the land management practice.
6.1- Issus in PIL through Environment:
Unlike mainstream law, PIL is not oriented to the individual nor does it deal with a range of ‘single’ disputes. PIL is invariably group-oriented. It deals with the assertion of group or collective rights, involves questions of injustice pertaining to a group or collectivity, or may involve a legal action where an individual is representative of a group. PIL sees in this group dimension to its work the opportunity to make more profound structural changes in society and initiate larger ripples of change.
The intent on ‘changing instead of merely upholding existing law and social structures’ often distinguishes the PIL work from, for example, many governmental legal aid schemes which provide legal services to underserved or disadvantaged sectors of society, but may not intend, in doing so, to change existing law and social structures or to challenge the distribution of resources and power in the society.
This intent has brought PIL groups into conflict with governments. Indeed, many NGOs all over the world, in Bangladesh as well, have emerged as governments have shown themselves incapable of promoting positive social change and eradicating patterns of unequal distribution of resources and power.
The socio-economic context in which PIL groups function is crucial to their work. The groups contend with unequal development patterns and fighting unjust socio-economic policies and see as one of their objectives the redesigning of the legal map to promote in their view a more equitable system of legal relations. Matters relating to access to credit, marketing schemes, land ownership and use, land tenure and production-sharing systems are matters of concern to them, as are questions of squatters’ rights, access to sanitation and water, environmental rights, and the rights of indigenous or tribal peoples.
PIL has also flourished in countries of the world, because it provides a way for civil society to become actively involved in questioning public decision-making, including decisions on political structure and democratic space. It provides a way to challenge and change major public policy decisions and campaign for social, economic and political reform.
6.2-Tools of PIEL
A range of different tools is used in PIL movement and these are quite dependent upon the context within which the PIL group works. The use of these tools does not automatically qualify an organization as a PIL group, but a survey of the tools is helpful to understand the range of ways in which PIL work towards their goals.
6.3-Duties of Court in case of PIEL
In the case of public interest litigation, the following aspects have to be considered.
- while deciding matters concerned with “Public interest litigation”, the courts are expected to act with care and caution;
- The courts are bound to come to the rescue of weaker sections, downtrodden, of the society where the grievances concerned with such sections of society are brought to the notice of the court by way of “Public interest litigation”
- Public interest litigation” is not in the nature of “adversary litigation” but it is a challenge to Government and officers to make the basic human rights meaningful.
- Courts must be careful to see that under the guise of redressing a “Public grievance”, they should not encroach upon the sphere reserved by the constitution to the executive and the Legislature.
- Courts should not give scope to nay one to indulge in reckless allegations under the guise of “public interest litigation”.
- Courts have to see whether the persons moving the court have sufficient interest and whether there in “Public injury” and whether the act is a “bonafide” one.
- Even in the domain of “Public interest litigation”, a third party will not be welcome to question statutory orders relating to property.
- Courts must be slow and also should act carefully while dealing with “political questions” by way of “Public interest litigation”
- Courts should be reluctant to decide matters involving pure “Political questions”.
- Courts before dealing with such questions should carefully scrutinize whether such “political questions also involve the determination of any “legal” or “constitutional right” or “obligation”.
- Courts must be very vigilant in deciding such matters since a clear demarcation in such matters into the categories specified in (i) and (j) may not be always possible.
- Courts should be satisfied that the ‘Public interest litigation” is a bonafide litigation and not a “malafide” one.
- Even in the domain of “Public interest litigation”, a third party will not be welcome to question statutory orders relating to property.
- Courts must be slow and also should act carefully while dealing with “politica questions” by way of “Public interest litigation”
- Courts should be reluctant to decide matters involving pure “Political questions”.
- Courts before dealing with such questions should carefully scrutinize whether such “political questions also involve the determination of any “legal” or “constitutional right” or “obligation”.
- Courts must be very vigilant in deciding such matters since a clear demarcation in such matters into the categories specified in (i) and (j) may not be always possible.
- Courts should be satisfied that the “Public interest litigation” is bonafide litigation and not a “malafide” one.
6.4-Award of Compensation
In PR cases, the High Court Division can award compensation to the victim for wrong done to him. Awarding of compensation is neither new nor exclusive to PR cases but public interest matters are probably the most appropriate ones where compensation may be granted. This power of the court has been recognized in Bangladesh in the following words of MM Hoque J;
“Since this Court exercises its Special Original Jurisdiction and since this Court has got extraordinary and inherent jurisdiction to pass any order as it deems fit and proper, we are of the view that this Court has the power to award simple cost of the case as well as monetary compensation considering the facts and circumstances of each case.
Although habeas corpus matters are considered as fit cases for awarding compensation, there is no bar in awarding compensation in other cases.
General, a money claim has to be agitated in a suit to be instituted in a court of the lowest grade competent to try it. Award of compensation under Article 102 is an exception to this general rule and is thus not a substitute for such a civil suit. In other words, even after awarding of compensation under Article 102, the right to claim compensation through the ordinary process of suit remains unaffected.
Compensation awarded under Article 102 is thus of a palliative nature. It aims to provide immediate relief to the victim since it would amount to injustice if a poor destitute, long suffering victim is sent to the civil court for a compensation suit, without a penny in hand, to establish his claim through the long and rigorous process of civil litigation.
Compensation awarded under Article 102 only when the infringement of fundamental right appears to be gross and patent and ex facie incontrovertible. In many cases, compensation appears to be the most appropriate immediate remedy due to the poverty, disability or socio-economic disadvantaged position of the victim.
The leading case with regard to compensation in Bangladesh is Biids Akhter Hoddain v. Bangladesh and others where illegal detention of a political leader for 17 days was challenged. The Court awarded an amount of one lakh taka to be paid by the government. In Shahanewas v. Bangladesh the detenue was held in custody in place of an absconded convict with malafide intentions. The Court ordered an award of twenty thousand taka to be realized from respondent No. 4, an ASI, who was in charge of the police outpost where the wrong was done.
Some of the trend setter Indian cases of compensation include illegal detention in person for over 14 years, failure of police civilians by army personnel, illegal detention of a person on the basis of “untrustworthy and meaningless evidence”, failure of police to produce arrested persons before the Magistrate within the requisite period, police opening fire in a peaceful assembly of peasants and landless people.
Compensation may be awarded in two stages. First, as soon as the rule is issued, the court may grant an amount as compensation. This is aimed at providing immediate interim relief till the case is finally disposed off. Second, at the time of disposal, the Court may finally determine the amount pf compensation and adjust the amount with the portion already released. In any cases any amount awarded by the High Court Division may be described as interim compensation since the victim is free to file a regular suit for compensation and damages. Thus the High Court Division may send the case for disposal to a more appropriate forum.
6.5- CONSTITUTIONAL MANDATEAND BASIS OF PIL
The concept and practice of PIL must be capable of being justified, explained and supported by constitutional provisions. Accordingly, the judges and lawyers in the sub-continent, including Bangladesh, proceeded to show that PIL not only conforms to the constitutional spirit and scheme, but the Constitution itself mandates a PIL approach. This constitutional basis of PIL is the subject matter of the present Chapter. In the sub-continent, proponents of PIL advance their arguments in two stages. First, it is argued that the constitutions are people oriented and support the social justice approach. Thus, in intention and spirit, the constitutions of the sub-continental countries are pro-PIL. Second, they rely on the rule that no provision of the Constitution should be treated in isolation. Since interpretation of individual constitutional provisions is given on the basis of its scheme and spirit, which supports social justice, any interpretation is bound to support PIL. We shall examine in the present chapter how a PIL approach, under the constitutions of India and Bangladesh is thus guaranteed.
6.6- REPRESENTATIVE SUITS AND PIEL
Representative suits are described in the Code of Civil Procedure in the following way: Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such a suit, on behalf of or for the benefit of all persons so interested. This is very similar to class action suits in the American jurisprudence. A representative suit, however, is not the same thing as a PIL for the simple reason that it is designed to deal with group interests to avoid a multitude of similar actions and protection of social or public interest is not its primary purpose.
First, a representative suit is conducted within the perimeters of the traditional adversarial system. It is neither of inquisitorial nature, nor designed to assist social activism. PIL, on the other hand, involves a negation of the adversarial method and includes innovative techniques in the process of adjudication as well as in granting relief.
Second, the petitioner of a representative suit is aggrieved in the traditional sense of the term and some other persons share the same grievance with him. PIL cases often involve a petitioner who is not aggrieved personally, especially in the traditional sense.
Third, representative suits may be filed where there are ‘numerous persons’. This term carries its specific meaning. On the one hand, ‘numerous persons’ do not embrace the general public. So it excludes cases where the interest of the entire public is concerned. On the other hand, the word is not synonymous with numberless or innumerable and the body of persons represented must be sufficiently definite. Still, there is no rule fixing any limit to the numbers and the actual number need not be capable of being ascertained. So the court must apply its discretion as to what is or is not numerous in a particular case. It appears that there is a scope of filing PIL cases as representative suits where a segment of the society, whose nervier is sufficiently definite, is injured. But representative suits do not offer relief to the public as a whole and the innovative remedies provided under the writ jurisdiction are not available.
Chapter – 7
Problems and Complexities PIL through the Environment:
Because of its developing state, the whole process of public interest litigation is beset with numerous problems. One such problem is that of fluctuating bench structure which admits and hears a writ petition. Since all the judges of the superior court are not equally convinced of the desirability of this new extension of courts jurisdiction, the fate of the writ fluctuates with the bench fluctuation.
Public Interest Litigation presents many other organizational complexities. It creates not only factionalism but also makes docket management among the judges difficult. Inability of the court to forge proper compensation patterns is yet another problem of public interest litigation.
There are other procedural complexities also. Most of the public interest litigation cases involves disputed question of fact, which have been either read by the petitioner in a newspaper or with which he was remote acquaintance because he is not the actual victim. Such disputed facts cannot be properly decided and evaluated on affidavits. Moreover, if the paper report is not correct, it will lead to unnecessary wastage of time, money and energy of the court as well as of the government. Further the consistent administrative behavior in denying every fact makes the situation still more difficult.
Public Interest Litigation jurisdiction further involves the problem of priority and docket congestion. Lawyers have started complaining in many countries that most of the court’s time is now being consumed by public interest litigation and, therefore, their cases are not being taken up expeditiously.
Further, public interest, unless taken in its proper perspective, irritates the administration and, therefore, increases the chances of confrontation between the judiciary and the executive which will be most unfortunate for any country.
It is true that no one would waste his time and money in challenging an administrative action in which he has no interest. However, it is equally true that in any developed legal system, the professional litigants and meddlesome interlopers who invoke the jurisdiction of the court in mailers that do not concern them need discouragement.
8.1- Locus Standi of PlL Petitioner on Environment: Bangladesh Development and the new Principles:
The first part of Article 102(1), relates to fundamental rights. The power of the court is not discretion since Article 4491) declares that the right to move the Court to enforce fundamental right is itself a fundamental right. So the situation is situation is similar to Article 32 of the Indian Constitution. The second part of Article 102(2), relates to cases involving non-fundamental rights. It uses the same language and defines the same five types of ‘writs’ as Article 98 of the Pakistan Constitution of 1962. Clause 2(a) (i) provides for remedies in the nature of prohibition and mandamus; clause 2(a) (ii) grants remedies in the nature of certiorari; clause 2(b) (ii) deals with remedies in the nature of quo warranto.
For the purpose of our discussion on standing, however, we have two broad types. In the first category are cases under clause 1 and clause 2(a) where the applicant must be a ‘person aggrieved’. In the second category are cases under clause 2(b) where any person can apply, whether or not aggrieved. Interestingly, in cases of habeas corpus and que warranto, the applicant is required to show grievance in cases of fundamental rights but not in cases of non-fundamental rights. This apparent anomaly, however, does not give other types of rights more importance than fundamental rights. The Court has taken the prudent view of harmonious interpretation and as such no one is denied relief on this issue.
Mabmudul Islam says:
It is very difficult to accept a contention that the condition for enforcement of the fundamental right relating to personal liberty is more onerous than the condition for issuance of an ordinary writ of habeas corpus. A reasonable and harmonious interpretation should be given and it should be taken that the requirement of ‘aggrieved person’ to apply for enforcement of fundamental rights is not applicable in respect of a petition involving detention by an aggrieved person even though the petition for habeas corpus alleged violation of fundamental rights.
In sprite of the close resemblance with the Indian and Pakistani constitutional provisions, the standing rules in Bangladesh have developed through a somewhat different route. The following discussion will examine how the Bangladesh Supreme Court, following the English, Indian and Pakistani Courts, gradually came out of the restrictive locus standi rules where public interest is nvolved.
Powers of High Court Division to issue certain orders and directions:
According to Article l02 (l) of the constitution of Bangladesh provides that the High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part if of this Constitution.
According to Article 102(2) of the constitution of Bangladesh provides that the High Court Division may, if satisfied that no other equally efficacious remedy is provided by law.
- On the application of any person aggrieved, make an order
- directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do;
- declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or
According to Article l02 (3) of the constitution of Bangladesh provides that notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.
According to ArticlelO2(4) of the constitution of Bangladesh provides that Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of-
- prejudicing or interfering with any measure designed to implement any development programmed, or any development work; or
- being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorized by him in that behalf) has been given an opportunity or being heard, and the High Court Division is satisfied hat the interim order would not have the effect referred to in sub-clause (a) or sub-clause (b) According to Article 02(5) of the constitution of Bangladesh provides that In this article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defense services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.
The exemption in sub-section 3 – referring back to article 47 of the constitution -has little impact on health and safety issues.
8.2- Public Interest Litigation in different countries through the conservation on PIL:
Public Interest Law and PIEL in England
Regarding individual legal activism for common good, the historical experience of the English has been somewhat different from that of the Americans. Yet, as in States, the movement for legal aid is probably the most important precursor of the modern public interest law.
Legal aid in England, although practiced in one form or another prior to the 2” World War, became firmly entrenched since 1949. A major reform began with the creation of the Legal Aid and Advice Scheme and entrusting it to the Law Society, the national association of solicitors. The emergence of the so — called ‘welfare state’ attempted to ensure that the poor, for their individual problems, get some sort of legal assistance. However, further major developments were •made only in the early 1970s when the legal aid system was recognized incorporating the modem concepts. In fact, litigation in social or public interest, public advocacy, formation of public opinion for social interest, etc. did not start earnestly till the mid I 960s.
In terms of litigation in public interest, the development in England mainly took place within the ambits of administrative law where administrative actions are challenged by the citizens. It was a slow process Gradually a number of liberal judges, including Lord Denning, extended the meaning of the term ‘locus stand!’, enabling the activists to approach the court. Significant changes were brought in 1977 — 1981 when a set of new rules liberalized applications for judicial review.
Thus, the development of PR in England is mainly a story of the evolution of the locus standi ‘rules.
Development of PIEL in India
It has been suggested that the judges and scholars pioneering PR in India were influenced and inspired by the American development. Especially, Bhagwati J. cited Cappelletti in the Judges Transfer caseand favorably discussed his ideas in a subsequent article. Western scholars including Cappelletti were discussed by other Indian writers as well, but this generally happened when the concept of PIL had already been introduced and accepted in India.
Perhaps the primary and most important factor that prompted the development of PR in India was a strong sense of social consciousness of a number of judges. By the late 1970s, even after more than three decades of independence, India was still an underdeveloped and poor third world country with millions of people barely surviving in abject poverty. The state not only failed to ameliorate the conditions of the poor, it faltered to incorporate substantial distributive or social justice for the masses. The legislature was seen as insensitive to the causes of the poor and merely a forum for politicians who were desperate to realize their personal ambitions. The executive also failed to meet the expectations of the people and there were widespread governmental inefficiency, mistakes and lawlessness.
Indian Supreme Court of made a landmark decision in the Public Interest Litigation of
Union of India v. Asst. for Decorate reforms with peoples Union for India as to the election.
The Court held:
- The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word ‘elections’ is used in a wide sense to include the entire process of election consisting of several stages and embraces many steps.
- Article 324 is reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules.
- The word ‘elections’ includes the entire process of elections which consists of several stages and it embraces many steps some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion. If on affidavit a candidate is required to disclose the assets held by him at the time of lection, voter can decide whether he could be it-elected even in case where he has collected tons of money.
- To maintain purity of elections and in particular to bring transparency in the process of election, the commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.
- The right to get information in democracy is recognized all throughout and it is natural right flowing from the concept of democracy. At this stage, Article 19(1) and (2) of the International Covenant of Civil and Political rights was referred to.
- Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to public interest the Supreme Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the executive to sub serve public interest.
Under our Constitution Article 19(1) (a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of voters, that is to say, voter speaks out or expresses by casting voter. For this purpose, information about the candidate to be selected is a must. Voters (little man-citizen’s) right to know the antecedents including criminal past of his candidate contesting election for Member Parliament or Member Legislative Assemblies is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers.
Development of PIL in Pakistan
Pakistan begins an underdeveloped country like India has been same problems of poverty and social injustice. Executive lawlessness, combined with the failure of the legislature to ensure the progress of law, has given rise to similar frustrations as has been even more complicated by the Indian. Yet the situation was perhaps been even more complicated in Pakistan because of the failure of democracy for prolonged periods due to the imposition of martial law. While Pakistan had three Constitutions in the imposition of the term, there were several interim constitutional arrangements in between. One consequence of this chaos was the pathetic status of the fundamental rights of the people. Annulled, curbed or declared non applicable, these rights could not be claimed by the aggrieved for long periods at a time. Whenever the Constitution was restored, the judiciary started to move towards establishing its authority till the next Martial Law came to halt everything once again.
The environment was conductive and Pakistan was soon to follow the Indian example. Pit developed there in the late 1980s, in the famous cases of Benazir Bhutto v. Federation of Pakistan a political party challenged a new order by the Martial Law government for registration of political parties. The Supreme Court gave standing to the political party and refused to take a conservative or traditional stance. Benazir Bhutto‘s case established a framework of standing rules in matters of public importance.
This was soon followed by the leading case of Darshan Masih alias Rehmatay and others v. The State. The court acted on the basis of a telegram demanding enforcement of fundamental rights involving bonded laborers. The court enunciated the philosophy, rules of standing and procedure of Pit. The proceeding was concluded and an order was passed on the basis of an agreement reached by all concerned.
Afzal Zullah CJ, followed by Nasim HAsan Shah CJ, played vital roles in the development of Pit in Pakistan. They invited cases and attempted to establish a procedural framework to deal with PR petitions. This was made public in a judicial conference held in Quetta on 15th and 16th August 1991. It was declared that it is the responsibility of the Judiciary under the Objectives Resolution and under the Constitution to take notice of violations of rights of citizens.As it happened in the USA and India, despite opposition, PIL became an integral part of the Pakistan legal system by the early 1990s.
CHAPTER – 9
Case study on PIL through the conservation of Environmental basis:
* Modhumoti Model Town Case Title & No.
In a historic judgment on 27 July, 2005, a division bench of the Supreme Court of Bangladesh comprising Mr. Justice MA Matin and Mr. Justice A F M Abdur Rahman declared the implementation of the Modhumoti Model Town (MMT) undertaken by the Metro Makers and Developers Ltd. as unauthorised, illegal and against public interest. The judgment came following a public interest litigation (4604 of 2004) filed by Bangladesh Environmental Lawyers Association (BELA) that was exhaustively argued before the special bench that delivered the judgment. Together with the BELA petition, the Hon’ble Court has rejected an earlier petition filed by the Metro makers. BELA first filed the petition on 14 August, 2004 challenging the legality of the Project that was filling up the sub-flood flow zone near Amin Bazar and was being implemented ignoring the mandate of RAJUK. On 15 August, 2004 a Division bench of the High Court comprising Mr. Justice Md. Abdul Wahab Miah and Justice Zinat Ara issued injunction for six months against Metro Makers Ltd. preventing them from further earth filling or undertaking any other activity for implementing the Project including advertisements to sell plots in Modhumoti Model Town. The said order further banned all advertisements for selling of plots of the so-called Modhumoti Model Town.
Subsequently, the stay order was vacated by a division bench of the High Court comprising Mr. Justice Joynal Abedin and Mr. Justice Nirmalendu Dhar on 1 September, 2004 against which BELA preferred appeal. Although the vacation bench of the Appellate Division presided over by Mr. Justice Tafazzul Islam again granted stay in favour of BELA on 3 October, 2004, on regular appeal the Appellate Division referred the matter to the High Court Division for hearing on merit.
The matter was finally disposed of today together with the earlier writ petition (5103 of 2003) filed by the Metro makers alleging that RAJUK through filing of police case was illegally obstructing its development activities. In that case Metro makers obtained stay in their favour and continued to implement the project on the claim that they had RAJUK’s approval for the same. The permission letter they appended in their petition was challenged by BELA as forged and subsequently on scrutiny of the original files, the court today held that the letter was of course not a genuine one. The Hon’ble Court, therefore, discharged the rule issued earlier that so long prevented RAJUK from obstructing earth filling by the Metro makers. In disposing of the BELA’s case the Hon’ble Court made the rule absolute in part. Considering the length of the judgment, the Hon’ble Court only pronounced the operative part touched upon five major issues. Firstly the Court rejected the plea of the Modhumoti’s lawyers that BELA has no standing to file the case. The maintainability issue was also decided favourably.
On the issue of legality of the project the court categorically held that the project of Modhumoti Model Town being undertaken in violation of the Town Improvement Act and the Master Plan prepared thereunder, the Environment Conservation Act and the Act No. 36 of 2000 and without having obtained any permission from RAJUK, the same is unauthorised, illegal, without lawful authority and against public interest. The Court therefore, directed RAJUK to protect the sub flood flow zone of Savar Amin Bazar from illegal earth filling by the Metro makers and also directed Metro makers to refrain from undertaking any further earth filling in the said sub–flood flow zone. The Court, however, directed that since people have already purchased plots, the third party interest of the buyers shall not be affected by this order. On behalf of BELA, the petition was moved by Mr. Mahmudul Islam, Mr. A F Hassan Ariff, both former Attorney Generals and Dr. Kamal Hossain with assistance from S. Rizwana Hasan, Iqbal Kabir and Tanjibul Alam. On behalf of RAJUK and the government, the petition was moved by Mr. A J Mohammad Ali, Attorney General, Ms. Sigma Huda and Mr. Adilur Rahman Shubhro, deputy attorney general.
On behalf of Metro Makers and the added respondents (buyers of plots), amongst others, Mr T H Khan, Mr Azmamul Hossain, Mr. Rokonuddin Mahmud, Mr. Abdul Matin Khasru, Mr. Mahbubey Alam, Ms. Tania Amir, Mr. Sirajul Haq appeared before the Court. The petition of BELA was fought against the indiscriminate and unregulated earth filling by the developers that is causing unbearable water logging in the City.
Dr. Mohiuddin Farooque v. Election Commission & others Writ Petition No. 186/1994 (Nuisance during Election Campaign)
The first ever-environmental litigation was filed in 1994 in the form of a Writ Petition 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; incessant 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 Hon’ble Court issued rule nisi upon the respondents asking them to show cause as to why they should not be directed to comply 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 petitioner 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.
Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 891/1994 (Industrial Pollution Case)
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.
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 pollution 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 seven years since the date of filling 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 severely 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 directions, the Hon’ble 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.”
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 aggravation 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 Road 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 City Corporation;
(8) The Secretary, Ministry of Health & Family Welfare,
(9) The Secretary, Ministry of Commerce,
(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 incompatible 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 nervous system, resulting to high blood pressure, IQ and memory-retention damage among children and damage to foetuses leading to deformed babies. The high sulphur content in the petroleum, and hence in the smoke, causes severe damage to the ecology. The main thrust of Dr. Farooque’s 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 inherent 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 supported 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 alarming 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 Gas (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 filling stations within six months and to ensure that all cars imported since July 2001 be fitted with catalytic converter. 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 certificate 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.
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 multistoried building at the site earmarked for public car park in the RAJUK Master Plan unlawfully and without the latter’s approval and hence liable to be demolished. It was further submitted that the construction was continuing defying DoE’s finding that the said building would create a disruption to the environment of the area and the neighbourhood depriving them the right to life, body and healthy environment against hazardous pollution and obstruction to air and light as being endangered by the unauthorised 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.
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.”
Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 867/97 (Contaminated Drink)
The petitioner Dr. Mohiuddin Farooque, Secretary General of BELA, bought a 1000 ml bottle of soft drink brand name PEPSI produced by the Bangladesh Beverage Industries Limited for consumption from a shop in Dhanmondi. After going back home while he was about to open the said bottle he found that the liquid in it contained various foreign materials and substances including dead insects, sediments etc. He, therefore, without opening the bottle went to various statutory bodies and got the bottle physically examined and the fact was admitted and recorded by everyone including BSTI and Institute of Public Health. The petition is filed and moved alleging that the presence of such materials and substances were the result of utter failure and negligence in maintaining the acceptable quality, preventing adulteration, in performing statutory duties, and a detrimental act to human and public health under various laws of the country and the Constitution of Bangladesh. It is also stated that although the authorities were informed including the Respondents, no satisfactory step was taken to protect the right of the petitioner and the public health and interest at large. The right to life of the people was endangered by such actions and inactions of the Respondents. The acts and omissions that had led to such contamination and the presence of foreign substances and materials were also criminal offence under various penal laws, stated Dr. Farooque.
After hearing the matter the High Court Division issued show cause notice on the Ministry, BSTI and the Institute of Public Health for their failure to take appropriate action against the Pepsi Cola manufacturer. The Court also asked the Bangladesh Beverage Industries Ltd to show because why its license to manufacture Pepsi Cola should not be cancelled. The Matter is now pending before the Court.
Subsequently, the Petitioner also lodged a criminal case against the Bangladesh Beverage Industries Ltd. since such contamination and adulteration were crime. The Chief Metropolitan Magistrate Court also issued summons upon judicial enquiry and the criminal case was also pending.
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. 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 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 Hon’ble Appellate Division granted prayer Leave.Pending hearing of the rule, parties are directed to maintain status quo.
Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 1252/1997 (Unregulated 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 notice 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 licences 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 declared to have been done without any lawful authority and be directed to implement the circular.” The matter is now pending for hearing
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 Occidental of Bangladesh Limited for their negligence 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 combat the after effects of the fire, as reports suggest that it took quite a long time before normal 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.
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 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. 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. 2482 of 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 statement 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 names and 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.
Biplob Kumar Roy v. Bangladesh and othersWrit 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. 1840 of 1999 filed by BELA and one member of the local fisherman community, alleged that such leasing violated the notification of the Ministry of Land dated 5 September ’95 prohibiting leasing of open fisheries for protecting the rights of the poor fishermen community and ensuring their livelihood. The rule required to show cause as to “why the leasing out of the part of the river Naboganga shall not be declared to have been made in defiance of legal and constitutional obligations and against public interest, is of no legal effect and without any lawful authority”. The authority ultimately cancelled the lease.
Khushi Kabir v. Bangladesh and othersWrit Petition No. 3091 of 2000 (Illegal Shrimp Cultivation)
A Division Bench of the High Court Division comprising Mr. Justice Mohammad Gholam Rabbani and Justice Begum Nazmun Ara Sultana has issued a Rule Nisi on 6 June, 2000 upon the Secretary and Assistant Secretary, Ministry of Fisheries and Livestock, Director General, Fisheries Directorate, District Commissioner, Khulna, District Fisheries Officer, Khulna to show cause as to why the impugned order for utilizing the land of Polder 22 for shrimp cultivation under Deluti Union, Paikgachha P.S. of Khulna district dated 9 May, 2000 shall not be declared to have been issued without lawful authority and have no effect as being ultra virus and in violation of the fundamental rights of the petitioner as guaranteed under articles 27, 31 and 42 of the Constitution. The Hon’ble Court also stayed the operational effect of the above-mentioned letter issued by the Respondent No. 2 and of any steps taken for shrimp cultivation pursuant to the impugned letter issued from the same Respondent.
The petitioners were aggrieved by the order issued by the Respondent No. 2 vide letter bearing No. Motsho-2 (Niti) 10/99/52 that purported to direct that Polder No. 22 under Deluti Union of Paikgacha Thana be earmarked for shrimp cultivation upon the application submitted by Advocate Sheikh Mohammad Nurul Hoq, MP. The petition alleged that if the area under Polder 22 is allowed for shrimp cultivation that would create environmental problems.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 1691 of 2001 (PAP Case)
A division bench of the High Court comprising Mr. Justice Kazi AT Monwar uddin and Mr. Justice Mozammul Hossain has issued a Rule Nisi upon the Secretary, Ministry of Water Resources and Land; Chairman, BWDB; Director General, WARPO; Deputy Commissioner, Tangail and Executive Engineer, BWDB to show cause as to why they should not be directed to assess the compensation claims of the Project Affected People in compliance with the provisions and procedures of the Acquisition and Requisition of the Immovable Property Ordinance, 1982; section 28, 30 and 31 of The Embankment and Drainage Act, 1952 (East Bengal Act I of 1953); Article 11(1)(c) of Bangladesh Water and Power Development Boards Order, 1972 (President’s Order No. 59 of 1972) and the judicial pronouncement dated 28 August, 1997 passed in Writ Petition Nos. 988 and 1576 of 1994 by this Hon’ble Court. This matter is pending for hearing.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh & others Writ Petition 3336 of 2002 (Filling up of Ashulia Flood Flow Zone)
A Division Bench of the High Court comprising Mr. Justice S.A.N Mominur Rahman and Mr. Justice Arayesuddin has directed to immediately stop the unlawful earth filling of the Ashulia flood flow zone by Jamuna Builders Ltd. Following a writ petition filed by BELA, the Hon’ble High Court has given the direction on 13th of July, 2002. In the petition filed by BELA relief was sought against 8 respondents including Secretaries, Ministry of Housing and Public Works, Ministry of Land, Ministry of Environment and Forest; Chairmen, RAJUK and BWDB; Director General, Department of Environment; Deputy Commissioner, Dhaka; and Managing Director of Jamuna Group Ltd.
The BELA petition alleged that the earth filling by the Jamuna Builders Ltd. and other developers in Ashulia flood flow zone for housing purposes has no approval from the RAJUK. The filling up of the flood flow zone and the branches of the Turag River flowing thereon was essentially changing the nature, character and utility of the
natural water body. Such filling up was in gross violation of the Master Plan of the City prepared by RAJUK and also the 2000 Act that aims to protect the open spaces including the flood flow zones from being filled up. The 2000 Act strictly prohibits activities that would change the nature of the water bodies including flood flow zones without prior approval from the government.
The Master Plan prepared by RAJUK discourages all development in main flood flow areas to enable free flow of flood water. The only activities allowed therein under the Master Plan are agriculture, dry season recreation and ferry terminals. The violation of the Act of 2000 is punishable with imprisonment of 5 years and fine upto Taka 50 thousand.In defiance of all these legal requirement, the Jamuna Builders Ltd. proposed to develop housing over an area of 2276.19 bigha encroaching upon 5000 acre flood flow zone and also the branches of Turag that the government, as claimed by BELA failed to prevent effectively.
Upon hearing the petition, the Hon’ble Court directed the respondents to show cause as to why the unlawful filling up of Ashulia flood flow zone and branches of the Turag River by the Jamuna Builders Ltd. should not be declared illegal under Act XXXVI of 2000, Town Improvement Act, 1953 and the Environment Conservation Act, 1995. The Court has further directed to immediately stop all kinds of earth filling in the Ashulia flood flow zone. The matter is now pending for hearing.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 4685 of 2002 (Protection of Fuldi River from Unlawful Leasing)
In ensuring sustainable management of public properties BELA has filed this Writ Petition before the Hon’ble High Court Division of the Supreme Court on 9March, 2002. A large portion of the river Fuldi of village Sonar Kandi under Gazaria police station of Munshigonj District was unlawfully leased for a period of 99 years. The villagers have been using the said river in their agricultural activities including irrigation and drainage. Peasants of nearby villages have been earning their livelihood by carrying out various income generating activities in and around the river that includes boat ferry service, traditional fishing, daily convenient usage, water transport and other usual utilisation like many other rivers of the country. The petitioners claim that the respondents have been acting collusively with mala fide abuse of power with intention to deprive the petitioners and the general public of the locality from their livelihood and environmental protection as the Scheduled Land forms part of natural water flow of the rive Fuldi. The Court issued a Rule Nisi calling upon the Respondents to show cause as to why the impugned settlement of the disputed scheduled land being against public interest and violative of the petitioners fundamental rights guaranteed under Articles 27 and 31 of the Constitution should not be declared to have been done without lawful authority and is of no legal effect .The Court also stayed the operation of the impugned lease deeds for a period of 3 months from date. The rule was made returnable within 4 weeks from date. The respondents were Secretary, Ministry of Land; Divisional Commissioner, Dhaka Division; Chairman, Bangladesh Water Development Board; Director General, Department of Environment; Deputy Commissioner, Munshigonj, Additional Deputy Commissioner (Revenue), Munshigonj; the Assistant Commissioner (Land), Munshigonj; Amina Khatun, Ameenuddin & Lal Banu. The matter is now pending for hearing.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 1430 of 2003 (Tannery case)
To relocate Tannery Units from Hazaribagh the High court has issued a Rule Nisi on 3 March, 2003.A division bench of the court comprising of Mr. justice M.A Aziz and Mr. Justice Nazrul Islam Chowdhury has called upon the seven government agencies and two tannery associations as respondents namely; the secretaries of the Ministries of Industries and Commerce, Environment and Forest, the Director General and the Director of DoE, member of Planning Commission, Chairmen of RAJUK ,BSCIC and Tanners Association and BFLLFEA .They were asked to show cause why they should not be directed to relocate within 18 months from date the tannery units from Hazaribagh area of the city to suitable location as contemplated in the Master Plan prepared under the Town improvement Act 1953 and ensure that adequate pollution fighting devices are developed in the new location /site as required under the Environment Conservation Act, 1995 and the Factories Act, 1965 and the rules made there under. Pending hearing of the Rule, the respondents are also directed to apprise the Court regarding the process of relocation of Tannery Units and submit a report in this regard to the Court within 6 months from date. The rule is made returnable within 4 weeks.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 2911 of 2003 (Ship Breaking to be Regulated by Law)
Most recently BELA has also filed a petition on the 19th of April, 2003 before the Honb’le High Court division to check pollution of coastal / marine ecosystem caused by the disposal of hazardous ship wastes as taking place in the ship breaking operation in Sitakunda of Chittagong. Seeking relief against violation of legal provisions on environment and labour protection, the petition has been filed, amongst others, the Secretaries, Ministry of Shipping, Industries and Commerce, Labour and Employment, Environment and Forest. The Director General, Department of Environment, Fire Service and Civil Defence, Chief Inspector of Factories and Establishments, Department of Explosives, Collector of Customs, Chittagong, Mercantile Marine Department and the President of Bangladesh Ship Breakers Association are amongst the other respondents. According to the petitioners; the available records suggest that no ship-breaking agencies have environmental clearance despite the clear requirement to have such clearance as a hazardous industry/factory. Moreover, the persistent violation of labour related laws in the ship breaking agencies have resulted in few major explosions in the past three years.
Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice M. M. Ruhul Amin and Mr. Justice Mohammad Bazlur Rahman has issued a Rule Nisi calling upon the respondents to show cause why they should not be directed to ensure that ship breaking operation is undertaken only after obtaining certificate of environmental clearance as required under section 12 of the Environment Conservation Act, 1995 and on adopting detailed and appropriate safety and labour welfare measures as required under the Factories Act, 1965.
The Court has also asked the respondents to show cause as to why ship breaking shall not be undertaken only after obtaining gas free certificate from the custom Department to prevent dangerous explosion and protect the workers/labourers from the risk of death, grievous heart and injuries. In this regard the respondents would also show cause why import of ship for breaking purposes shall not be regulated in line with the requirements of the Basel Convention, 1989. The Rule is made returnable within 4 weeks.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 3475 of 2003 (Protection and Maintenance of Parks and Playgrounds of Dhaka)
A petition was moved on 11 May, 2003 before the High Court Division by BELA seeking proper maintenance and protection of 10 playgrounds and 61 parks of the City. This petition was filed against the Mayor, Dhaka City Corporation (DCC), Chief Engineer, Public Works Department (PWD) and Chairman, RAJUK the petitioner prayed for direction to (i) ensure proper maintenance and protection of open spaces of the City as required under the Town Improvement Act, 1953, the Dhaka City Corporation Ordinance, 1983 and the Open Space Protection Act, 2000, (ii) complete the process of demarcation of all open spaces, (iii) develop, time bound plan for development and maintenance of the open spaces as required under the Town Improvement Act, 1953 and the Dhaka City Corporation Ordinance, 1983, and (iv) implement the said plan within such time as may be fixed by the Court.
Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice Md. Tafazzal Islam and Mr. Justice A. F. M. Abdur Rahman has issued a Rule Nisi calling upon the respondents to show cause why they should not be directed to ensure proper maintenance and protection of open spaces of the city as a Annexure-C and C-1 (10 playgrounds and 61 parks of the City) as required under the Town Improvement Act, 1953, the Dhaka City Corporation Ordinance, 1983 and the Open Space Protection Act, 2000.and or pass such other or further order or orders as to this court seem fit and proper. Pending hearing of the rule the Court also directed to (i) complete within six months from the date of the order the process of demarcation of all open spaces as of annexure C and C-1 protect these as envisaged under the open space protection Act, 2000 (ii) develop a time bound plan for development and maintenance of the open spaces as required the Town Improvement Act 1953 and the Dhaka City Corporation Ordinance 1983 and (iii) implement the said plan within such time as may be fixed by this Court and the respondents Nos. 2 and 5 are also directed to submit periodic reports of compliance time bound directors of this court and or require any further person, body or authority to monitor such progress and report in a manner to be determined by this Court. The Rule has been made returnable within 3 weeks from date.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh & others Writ Petition no. 2224 of 2004 (Protection and Conservation of Sunderbans)
A petition (Writ Petition no. 2224 of 2004) was moved on 2 May 2004 before the High Court Division by BELA seeking special protective measures to protect and conserve the 9285.15 sq kilometers of Sunderbans as an Ecologically Critical Area (ECA). In the petition filed by BELA relief was sought against the Secretaries, Ministry of Land, Ministry of Environment & Forest (MoEF), Department of Environment (DoE), Chief Conservator of Forest, the Divisional Forest officer, Bagerhat, Divisional commissioner, Khulna, the Deputy Commissioner, Bagerhat, the Upazila Nirbahi officer, Bagerhat. The petition stated that the land area in question is being grabbed by the Ministry of Land for unlawfully implementing its project despite severe protests even from the Forest Department. It was also stated in the petition that the government vide a gazette notification dated 30 August, 1999 has declared 10 (ten) kilometres area around the reserved forest of Sunderbans as Ecologically Critical Area (ECA) and has prohibited in that area such activities that can threaten the forest and habitat of wild animals. The plan of the Ministry of Land to implement its project is in fact within the limits of the ECA. Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice Shah Abu Naim Mominur Rahman and Mr. Justice Jubayer Rahaman Chowdhury has issued a Rule Nisi calling upon the government to show cause as to why the setting up and implementation of Adrasha Gram project should not be declared to have been undertaken without any legal effect. Pending hearing of the Rule the Court has also stayed implementation of the project and issued an injunction restraining the Secretary, Ministry of Land, Divisional Commissioner, DC and UNO of Bagerhat district from carrying out any activities towards settlement of any person in the ECA of the Sunderbans. The Rule has been made returnable within 8 weeks.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 9089/05 (Construction of Jetty in Cox’s Bazar)
In a public interest litigation filed by BELA challenging the decision of the Cox’s Bazar Sea Beach Management Committee to construct a jetty in the Ecological Critical Area (ECA) of the Cox’s Bazar Sea Beach, a division bench of the High Court comprising Mr. Justice Abdul Matin and Mr. Justice Md. Rezaul Haque has stayed all activities in connection with the construction of the Jetty. The petition has been filed against, amongst others, the Secretaries, Ministries of Environment and Forest, Communication, Civil Aviation and Tourism, Deputy Commissioner, Cox’s Bazar. The petition was filed by BELA on request from Cox’s Bazar Unnayan O Paribesh Shangrakkhan Parishad and Cox’s Bazar Environmental Journalists Forum. The grievance of the petitioner was that the Sea Beach Management Committee was not authorized to introduce commercial activities in the beach area or undertake/authorize construction in the beach area in the name of development. Further the decision of the Committee to go for such unplanned construction and introduction of commercial activities have been taken without any environmental clearance from the government. Such decisions also reflect the insensitiveness of the Committee to protect the ecologically fragile beach that has already been declared ECA by the government for its critical condition.
The local people apprehend that the claim of the Committee that the jetty is needed to facilitate rescue and security operations and also to protect the fish trawlers from sea-pirates and enable the Coast Guard, Bangladesh Rifles and Police to prevent the pirates is not tenable as these objectives have no relevance to the construction of a Jetty. Instead the hurried construction of the Jetty, non-disclosure of the source of fund and the proposition to collect toll from it clearly reveal that the actual agenda behind the construction of the Jetty is hidden and as such the same in contrary to public interest. Upon hearing the petitioner, the Hon’ble High Court has further issued a rule nisi upon the respondents to show cause as to why the decision for construction of the Jetty and the construction of the Jetty for commercial purposes in the ECA of the Cox’s Bazar Sea Beach without having the authority to do so shall not be declared unlawful, unauthorized and of no legal effect and why the Jetty shall not be directed to be removed and dismantled and also why the respondents shall not be directed to refrain from authorizing any commercial activity in the ECA of the sea beach.
Gaurang Proshad Roy and Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 5732 of 2005 (Illegal Shrimp Cultivation at Dakop, Khulna)
In a Writ Petition filed by BELA and local affected people of Dakop Upazilla of Khulna regarding issuance of Shrimp Cultivation Licence and forced flow of saline water over the agricultural lands of the local affected people, a Division Bench of the High Court comprising Mr. Justice Md. Abdul Matin and Mr. Justice Mamnun Rahman on 13 August, 2005 issued a Rule Nisi upon the respondents to show cause as to (i) why the issuance of licence by the Upazilla Nirbahi Officer and Upazilla Fisheries Officer for shrimp cultivation in the five Unions namely, Bajua, Banishanta, Dakop, Kailashgonj and Laudob of Polder No. 33 of the Dakop Upazilla shall not be declared to be without lawful authority and of no legal effect as being contrary to the provisions of laws; (ii) why forced intrusion of salt water over the agricultural lands of the affected local people for cultivation of shrimp shall not be declared to be without lawful authority and of no legal effect; (iii) why the respondents shall not be directed to compensate the affected people for the loss suffered by them due to flow of saline water over their lands; (iv) why all the respondents shall not be directed to take appropriate measures to prevent the unauthorized use of the sluice gates and public water bodies by the shrimp cultivators in Polder No. 33 under Upazilla – Dakop, Khulna; and (v) why projects for cultivation of shrimp and production thereof in saline water shall not be required to be regulated in public interest by the provisions of the Environment Conservation Act, 1995.
9.2- Limitation of PIL through Environment:
While conducting this report some limitations has found. Like the limitation of this report is the sample selection. Here the sample has been chosen conveniently which may be leads to select some non-factual sites, As it is a type of litigation, PIL has all the constraints and limitations of the litigation process. However, to promote public interest, the constraints of the litigation process have been liberally construed where Pit is involved. In general, Pit indicates a petition in public interest in the nature of writ under Article 102 of the Constitution of Bangladesh. Development of Pit in Bangladesh so far has revolved around this constitutional jurisdiction. But PIL is not confined only within the constitutional jurisdiction. There is scope for PIL in Civil and Criminal courts as well as in special courts and tribunals provided that such litigation fulfills the criterion of PIL. Thus for example, Order 1 rule 8 relating to representative suits or section 91 regarding public nuisance of the Civil Procedure Code are relevant. However, the present book is concerned, apart from certain exceptions with the constitutional aspects of Pit and the civil and criminal law aspects are not within its scope. Institutional arrangements are described, including the development of authorities responsible for the management of natural resources. Along with this major environmental issues facing Bangladesh and the status of laws regulating these issues, the paper deals with the right to a healthy environment which has been recognized through case laws as one of the fundamental rights, the enjoyment of which is being guaranteed by the Constitution of Bangladesh. Finally, the paper describes the emergence of Public Interest Environmental Litigation (PIEL) and the experience yielded during this short span of time about its role in ensuring compliance and enforcement in the backdrop of continuing non enforcement, lack of coordination and non compliance of laws for sound management of the environmental resource base.
CHAPTER – 10
The method of Public Interest Environmental Litigation (PIEL) has opened up a new horizon. It is not alone a mode of fostering the enforcement of environmental or other regulations through judicial process, but a potential way in creating awareness amongst the members of a society about their rights and duties. This species of litigation can be an unique vehicle of rendering service to those who can not speak for themselves. It can clarify and promote judicial remedies making the judiciary progressive and the ramification of which gives the people a fair idea about the interface between the issues and the regulatory regime. It elaborates the functional interpretation of law with precision thereby removing ambiguity lessening the scope of exploitation with accountability. PIEL fills in the gaps in law, the inconsistency in the regulatory regime between law, policies and institutional framework and enjoins law with morality.
Initially, the development of PIL in Bangladesh was slow due to the threshold problem. This was mainly because of the prolonged periods of martial laws and autocratic regimes that curtailed the fundamental rights and disrupted the normal functions of the judiciary. Once the democratic institutions had a change to operate, the judiciary boldly re-asserted its proper constitutional role. As a result, progressive interpretations of the Constitution, including the development of PIL, became possible.
Apparently, the process of democratization of the system and the development of PIL coincided in Bangladesh. The growth of PIL in the midst of this process has produced interesting results — each in turn influencing the other. Since the activists and lawyers were focused on the participation of the people in the decision making process, they often used the new technique of PIL for this end. During the last few years, there is hardly any constitutional question of significance that has not been raised before the Court.
However, the courts had to be very cautious. When confronted with issues that were mainly political in nature, the judges carefully separated the legal and constitutional aspects from the political ones. In some cases, as a result, the petitioners were unsuccessful. But in cases with genuine social justice mailers, the courts did not hesitate to pronounce in favour of the petitioner. This is why almost all the successful PIL cases involve mailers relating to the poor and the disadvantaged.
In any case, PIL has not only been successfully introduced, it has been domesticated as well. The role of the Supreme Court in this regard is momentous. As a result of wise and judicious use of its constitutional powers, the status of the court is now firmly entrenched in the popular mind. At the same time, we now have a Bangladesh brand of PIL that is in tune with our constitutional and legal culture. Therefore, PIL has surely come to stay. The way forward is not deny, criticize or restrict PR, but to widen its scope and to bring it even nearer to the ‘people.
Finally, it needs to be mentioned that PIL does not work in isolation. It is a part of the greater movement for legal aid or a constituent of the greater theme of public interest law. So in the hand of the social activist lawyer, PR is one of many strategies which the concerned citizens and activists in Bangladesh are now using in combination. There is a realization that litigation is not a cure — all for all types of issues and problems. Retaining a close nexus with the press, the voluntary sector organizations are increasingly using new strategies including publication, lobbying and representation.
Future of PIL in Bangladesh element for the continued advancement of PIL is the very spirit of activism that introduced it in the first place. Continued success depends less on the cold calculations of law and more on the warm feelings of our hearts. Since PIL is an expression of social consciousness of the fortunate few, its progress is guaranteed to the extent we appreciate, acknowledge and remain conscious of our social responsibility.
Some probable recommendation to reduce the limitation of enforcement of PIL mechanism in Bangladesh, are given below:
The court in various countries have to innovate new methods and devices, new strategies for the purpose of providing access to justice to large masses of peoples who are deprived and to whom freedom and liberty have no meaning. Considering all these developing judicial trends the Supreme Court of Bangladesh should expressly come forward to allow PIL. In favour of liberal interpretation of the term “aggrieved person” some more important points should be mentioned —,
- Article 102 of our Constitution uses the term ‘any person aggrieved’. It does not use the expression as “aggrieved part” or any person personally aggrieved”
- Sri Lanka and Pakistan — these tow neighboring countries have, although they have same Constitutional constraints as we have in our Constitution, already overcome the barricade of ‘aggrieved person’ and they are now widely allowing PIL So why not our Supreme Court.
The main and foremost duty of the government and the judiciary is to guarantee equal right and protection to its citizens and thus strict follow up of the rule of locus standi as an impediment, rather than sewing the purpose enumerated in the International Human Rights Instruments as well as in the Constitutions — ‘equality before law’. Indeed to avoid this impediment so as to ensure equality before law in practice, the concept of public interest litigation has been originated and developed by the court.
Public Interest Litigation should take a broader View and define Public Interest Law activities as follows:
- Legal service to the poor;
- Representation without fee or at a substantially reduced fee in cases seeking the vindication of an individual’s fundamental civil rights and rights belonging to the public at large;
- Representation of charitable organization.
To exercise PIL Mechanism, there are some limitation and boundaries which PIL could not cross. But to get proper aid, advantage and relief, those limitation and boundaries should be reduced; otherwise PIL mechanism will be failed.