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