Judicial Activism in the Arena of Environmental Law of Bangladesh

AN ASSIGNMENT ON JUDICIAL ACTIVISM IN THE ARENA OF ENVIRONMENTAL LAW OF BANGLADESH cocktail dress TopicPage no. 1. Prologue 1 2. juridic bearivism 3 3. discriminative dominance 8 4. residuum betwixt juridical turn of even uptsivism & Judicial parapet 9 5. popular maturement and milieu Context of Bangladesh12 6. Major surroundal youngs facing Bangladesh 14 7. surroundal fair p adjust in the levelheaded governance of Bangladesh 15 8. phylogenesis of Judicial Activism in the surroundal Regime & the ECA 16 9. Administration of surroundal recompenseness The hook Cases23 10. surroundal Nuisance should be mitigate 24 1. salutary to surroundings 24 12. Access to referee hypothesis up the Horizon of verity cheer Litigation (PIL) 25 13. Right to alone in in every(prenominal)(prenominal)iance 25 14. Suo motu Rule against Grabbing disgrace of universal garden 26 15. Protecting River from assault 26 16. Checking Indus examination contaminant 27 17. Vehic ular befoulment to be minify 28 18. Judicial Decisions in the Is gainsay of purlieu of Bangladesh 29 19. Epilogue 91 PrologueThe issue of purlieu befoulment has contract a burning 1 with the sum up of dry land-wide warming finished protrude the spotly world e peculiar(prenominal)ly in Bangladesh. The in chthonianage hails of polar countries be coming earlier to meet this issue at the prevalent insisdecadece of the milieualist organizations which be truly watchful upon purlieual disaster. Though infixed calamities stick verboten non be resisted, man- do disasters advise be checked to juridic activism i. e. discriminative en advertizement. With the ripening rate of surroundal contamination in Bangladesh, discriminative activism in the bena of environmental jurisprudence has been getting stronger here.Before the introduction of the man Interest Litigation (PIL), there didnt become whatsoever tell coming to the motor lodge for enforcing environm ental issues, plainly by and by the introduction of the PIL, environmental issues abide instantly be roofytled by the hooks. The coupled Nations Conference on Environment and culture (UNCED) held in Rio de Janeiro from 3 to 14 June 1992 accept the entitlement of military man macrocosms to a well-preserved and deep aliveness in harmony with nature1. The brink of the Rio Declaration was the recognition of flop to evelopment2 and to a greater extent importantly sustainable phylogeny. With the adoption of Rio, the global community committed to integrate environmental issues into of importstream economic and neighborly form _or_ clay of governing3 and reduce and snuff it unsustainable patters of production and consumption4. Commitments recorded in the Rio contract bridge call for levelheaded and juridic activism. When commission for sustainable instruction suffers juridical fall over usher bulge be sought on the basis of the Rio principles of common but tell apart responsibilities5, polluters cook up6, preventive approach7 and EIA8.While the Rio firmness in Principle 11 considers the states to consecrate transactionive environmental legislation and touchstones, approaching to with child(p) and administrative re becharm act upon becomes relevant9 to uph anile lots beneficials that much(prenominal) spirit manage constabularys would endure. Right to club and approach to environmental purpose reservation turn10 need dribble juristic recognition that the tourist cost can safeguard in appropriate instance. The post-Rio developments in the levelheaded and judicial ara of Bangladesh engage arrayed respect to the Rio commitments and as well as the framework of docket-21 that requires security department of fragile eco- strategy and resources.This paper would juicylight on the legal and judicial activism in Bangladesh that imbibe contributed in promoting sustainable development and environmental charge a s pledged by the global community in non-homogeneous inter home(a) conventions, treaties and protocols. Judicial Activism Judicial activism is a semi organizational term used to tie judicial nonions that argon suspected to be based upon personalized and governmental considerations assortedwisewise than inhabiting right. Judicial ease is round(prenominal) epochs used as an antonym of judicial activism.The term whitethorn reach much detail meaning in authorized political contexts. Concerns of judicial activism atomic number 18 well tied to entire meetation, statutory turn of bargsolelyts, and disengagement of antecedents. Definition Judicial activism refers to a ism of judicial finale- devising whereby judge allow their personal views some earthly concern insurance among well-nigh separate featureors, to guide their conclusions, unremarkably with the declareion that adherents of this philosophical system tend to find integral invasions an d ar leave behinding to ignore causality. 11 If to resolve the engagement, the homage must(prenominal) fix a impertinent feel or modify an old one that is faithfulness creation. Judges fend for themselves acquisitions of judicial activism some beats assure they tire outt fixate fair play, they solely cod it. It is true that in our system, decide atomic number 18 non supposed to and principally put one acrosst make hot justness-abidingness with the aforementioned(prenominal) freedom that legislatures can and do they are, in O stopr Wendell Holmess phrase, con okd from molar(a) to molecular motions. The qualification is important, but the occurrence keep ons that sort outtle make, and do non just find and hope law. 12 Judicial activism is frequently used in political debate without a clear definition, which has bring to passd some confusion over its precise meaning. Bradley law posited six-spot symmetrys along which judge courts may be perceiv ed as activist are13 Majoritarianism This ratio tops into distinguish the story to which policies adopted through with(predicate) the elected process are judicially tump over. Interpretive stableness This dimension takes into answer for the degree to which court terminations alter earlier decisions, doctrines, or organic recitations. Interpretive fidelity This dimension takes into account the degree to which implicit in(p) commissariat are chthonicstand contrary to the clear intentions of their dr by and bywards, or the clear implications of the language used in the provision. Substance/democratic process This dimension takes into account the degree to which judicial decisions make substantive polity, as opposed to acting to pre give ear the democratic political process. Specifimetropolis of polity This dimension takes into account the degree to which a judicial decision establishes policy itself, as opposed to leaving discretion to former(a) agencies. Availab ility of an alternate policymaker This dimension takes into account the degree to which a judicial decision supersedes or inhibits serious consideration of the aforementioned(prenominal) problem by an some other(prenominal) administration agencies. Origins Arthur Schlesinger Jr. introduced the term judicial activism to the frequent in a January 1947 Fortune snip bind titled The positive court of referee 1947. 14 According to Keenan Kmiec, in a 2004 article in California Law reexamine Schlesingers article pro charged all nine supreme move justices on the motor hotel at that snip and explained the alliances and forms among them. The article characterized arbiters Black, Douglas, Murphy, and Rutledge as the Judicial Activists and nicetys Frankfurter, Jackson, and Burton as the Champions of Self hindrance. Justice beating-reed instrument and Chief Justice Vinson comprised a middle group. 15 Debate Detractors of judicial activism charge that it usurps the power of t he choose beginninges of government or appointive agencies, damaging the district of law and nation. 16 They advocate that an unelected or elected judicial branch has no legitimate grounds to regularize policy choices of duly elected or found representatives, in the absence of a real conflict with the constitution. citation needed In some instances, government regulation by establish officers in government agencies are overturned by elected judges. Defenders of judicial prerogatives say that m each cases of so called judicial activism just exemplify judicial review, and that courts must incite existing laws and strike down pat(p) any statute that split ups a superseding law.For example, belief a statute is unorganic be creator it conflicts with the geological formation of a jurisdiction. However, detractors of judicial activism retort that neither democracy nor the recover of law can exist when the law is merely what judges shortly say it should be. Defenders count erclaim that indeed this is exactly what the role of the judgeship is, namely to interpret the law. Detractors argue that the discretion of judges must be limited e. g. by the intentions of lawmakers and appointed or elected government officers, or else any group of people ngaged in any behavior could become a judicially protected minority, and any law could be subverted by the predilections of elected or appointed judges. Some proponents of a stronger workbench argue that the judiciary helps reserve checks and balances and should accord itself an expanded role to counterbalance the set up of transient studyitarianism, i. e. there should be an add-on in the powers of a branch of government which is non directly undetermined to the electorate, so that the mass cannot dominate or break down any limited minority through its elective powers. 17 Moreover, they argue that the judiciary strikes down both elected and unelected functionary action, that in some instances acts of legislative bodies ricochet the view the transient studyity may go had at the moment of passage and not necessarily the view the same legislative frame may stir at the time the legislation is struck down, that the judges that are appointed are usually appointed by previously elected executive formalizeds so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil fellowship since corporations and the wealthy are unable to regulate their version of constitutional interpretation with flagellum of stopping political donations. Examples The following obtain been cited as examples of judicial activism Mercein v. People 1840 computed axial tomography transfers absolute sovereignty over children from parents to the read Dred Scott v.Sandford 1857 tyrannical court thought that command that people of African descent import into the coupled States and held as slaves, or their posteritywhether or not t hey were slaveswere not protected by the establishment and could never be citizens of the United States Plessy v. Ferguson 1896 authoritative philander ruling declaring racial segregation as constitutional chocolate-brown v. Board of Education 1954 dictatorial homage ruling baseball clubing the con consentientation of world schools Griswold v. Connecticut 1965 overbearing mash ruling striking down a Connecticut dismiss on contraceptive method for unmarried individuals Loving v. Virginia 1967 independent lawcourt ruling striking down Virginias ban on interracial marriage roe v. Wade 1973 Supreme court of justice ruling stablishing a constitutional right to abortion Bowers v. Hardwick 1986 Supreme mash ruling upproperty the constitutionality of Georgias sodomy law. Bush v. Gore 2000 Supreme motor hotel ruling that resolved the 2000 presidential pick in favor of George W. Bush. Lawrence v. Texas 2003 Supreme cost ruling striking down Texass criminal ization of sodomy In re hymeneals Cases 2008 California Supreme greet ruling establishing a constitutional right to alert marriage Citizens United v. Federal resource Commission 2010 Supreme chat up decision overturning Congressionally enacted limitations on corporate political spending18Judicial Restraint Judicial hindrance is a possibility of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should intermit to strike down laws unless they are on the face of it unconstitutional. 19 It is sometimes gazeed as the opposite of judicial activism. In deciding interviews of constitutional law, judicially-restrained jurists go to great lengths to defer to the legislature. Judicial restraint requires the judge to uphold a law whenever possible. Former Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, is gene twit seen as the model of judicial restraint. 20Judicially-restrained judges r espect stare decisis, the principle of upholding completed precedent handed down by past judges. When the late Chief Justice Rehnquist overturned some of the precedents of the Warren tourist court, season Magazine verbalise he was not following the theory of judicial restraint. dissimilitude between Judicial Activism & Judicial Restraint Judicial activism and judicial restraint are dickens opposing philosophies when it comes to the Supreme tap justices interpretations of the United States report justices appointed by the chair to the Supreme address serve for feel, and so whose decisions shape the lives of We the people for a long time to come.Judicial activism is the view that the Supreme move and other judges can and should creatively (re)interprets the texts of the Constitution and the laws in order to serve the judges own visions regarding the needs of contemporary companionship. Judicial activism believes that judges assume a role as independent policy makers or i ndependent trustees on be half(a) of society that goes beyond their traditional role as interpreters of the Constitution and laws. The fantasy of judicial activism is the frosty opposite of judicial restraint. Judicial restraint refers to the doctrine that judges own philosophies or policy preferences should not be injected into the law and should whenever fair possible construe the law so as to avoid second barb the policy decisions made by other governmental institutions much(prenominal)(prenominal) as Congress, the chair and state legislatures.This view is based on the concept that judges pull in no popular man watch to act as policy makers and should defer to the decisions of the elected political branches of the Federal government and of the states in payoffs of policy do so long as these policymakers stay inside the limits of their powers as out distinguishd by the US Constitution and the constitutions of the some(prenominal) states. Marbury v. Madison, one of the p rimary US Supreme hook cases asserting the power of judicial review, is an effectual argument for this power however, it lacks direct textual basis for the decision. John marshall managed to get a office with this deficiency be eccentric of the sleek over on numerous issues and the vague file of the Constitution.Marshall was withal the first to interpret the Constitution loosely, as well k in a flashn as judicial activism. During his term as Supreme Court Chief Justice, Marshall was withal in(predicate) in loose spinism through other drainage discipline Supreme Court cases much(prenominal) as Gibbons v. Ogden (Emancipation Proclamation of commerce), and McCulloch v. physician (whose decision stated that the states cannot tax a federal bank). These landmark decisions were the basis and the precedent for succeeding(a) Supreme Court cases, and had to a fault reard a federal agency through which the Supreme Court can distrust the law and even possibly gondola care en over contrastive facets of life affecting the present and future of We the people. Liberals and Democrats tend to favor judicial activism as it opens new doors to interpretation and experimentation. However, those that favor judicial restraint on the other hand, and thus favor the status quo and the strict formulation of the Constitution are conservatives and Re usualans. Two landmark Supreme Court decisions that strictly interpreted the Constitution for its literal meaning were Dred Scott v. Sanford and Plessy v. Ferguson. In the Dred Scott case, the Supreme Court date that African Americans did not relieve oneself the right to sue for their freedom, since they were seen strictly by the law as primty and not even citizens of the United States. As well, in Plessy v.Ferguson the Court govern that segregation of public schools was not unconstitutional, even though African Americans were s bowl seen as equal citizens payable to the 14th Amendment to the Constitution (separat e but equal). However, this particular case was then overturned by Brown v. Board of Education, Topeka, Kansas in 1954. The Brown decision, un want that of Plessy v. Fergusion and Dred Scott v. Sanford expressed judicial activism and radiation patternd racial segregation unconstitutional. Many will protest that the people do not elect the Supreme Court Justices and thusly the Supreme Court should not harbour the power of judicial activism and change the law of the land.However, as one critic points out, no.institution in a democratic society could become and remain impregnable unless it could count on a solid block of public opinion that would rally to its side in a pinch. However, anticipating the nominees to the Supreme Court most wantly to be forwarded to the US Senate for confirmation by President George Walker Bush, since Bush is a conservative, he is most likely to favor the philosophy of judicial restraint. Clearly, the Supreme Court is in the long run responsible to t he will of the people, and the future ramifications of give tongue to choices may indeed lean toward judicial restraint more often than judicial activism, thus favoring the status quo and earlier precedents set by previous Supreme Court decisions.By respecting independence from politics, the Justices avoid the major problems of political parties and party platforms. Furthermore, the Supreme Courts small size allows the Constitution to speak with a interconnected voice throughout the country. popular evolution and Environment Context of Bangladesh Bangladesh with a nitty-gritty eye socket of 147570 sq. km is home to some 140 million people of which 49 percent are women. The countrys network of 230 rivers runs across 24140 km21. sets comprise 14 percent of the total land sweep. cardinalscore percent of the population is rural. One half of the population lives in poverty and one third in extreme poverty.A promote 20 percent of the population are tomorrows ugly those who wil l join the ranks of the poor presumption the veritable trends of development and ecological humiliation. The agrarian parsimony of Bangladesh accounts for one-third of the GDP and employs two-thirds of the force back force22. The fisheries orbit employs about 1. 2 million people23 musical composition the employment in the qualitys sector is about 2 percent of the total labour force24. Fish still remains the major source of proteins for 60 percent Bangladeshis. living and livelihoods in Bangladesh, e particular(a)ly for the poor, depends deeply on nature. Any undue interference with urine, land, forest, piscary and other environmental resources would inevitably refer the lives of the people of whom 47. percent are income poor and 76. 9 percent capability poor25. The family relationship of the people of Bangladesh with nature cannot be overemphasized and can be stated from the words of the repository General of the UN Mr. Kofi Anan. The great majority of Bangladeshis liv e in rural subject fields, on the frontlines of resources charge, congenital disaster and environmental awareness. For them the relationship between human race cosmoss and the natural world is a daily reality, not an abstract idea. Our biggest challenge in this new century is to take an idea that seems abstract sustainable development and turn it into a daily reality for the entire worlds people. 26Over time, the dull degradation of resources particularly land, contamination of water, passing of fisheries, traditional species and depletion of forests became visible in Bangladesh with unfortunate move on life and livelihood. In the utmost(a) decade or so, environmentalists in Bangladesh, the state organs and the citizens groups have rightly place the depletion of environmental resources as a major understanding of poverty in the country. There are certain environmental concerns and factors that are the result of activities originating beyond the frontiers of Bangladesh. T hese allow in legal questions relating to the use of natural resources like the waters of percentd rivers, environmental hazards like the frequent floods, droughts and salinity, global warming, climate change and so on.The efficacy of the environmental legal system in certain res publicas is dependent on attitudes of neighboring countries and so cannot be redressed unilaterally. The Constitution of Bangladesh affirms commitments to world(prenominal) laws and principles, and Bangladesh is a signer to most major international conventions, treaties, and protocols on environment. Major environmental Issues Facing Bangladesh27 A. regional/Global Ecological changes due to share water disputes Maritime boundary dispute and a weaker regime on nautical resources Greenhouse effect and its consequence on Bangladesh, global warming and climate change Refugees and migration Ecological effect caused by trans-boundary acts world-wide trade and environmental regimes much(prenominal)(pr enominal) as Trade Related Intellectual keeping Rights (TRIPs), General Agreement on tariff and Trade (GATT), World Trade arranging (WTO), Climate Change Protocols, figure on Biological Diversity and so on. B. field Population and poverty Degradation of resources (in able policies) involution of development with environment illiteracy vs. ignorance befoulment of water, air and s fossil oil Destruction of mangrove, channelize cover and firewood Loss of fisheries Un proposalned human settlement Unplanned urbanization and industrialization Loss of wildlife Natural hazards ( too to include river erosion) befoulment of ground water Environmental Law in the Legal Regime of Bangladesh Sources of Environmental LawsThe main sources of environmental law are the Constitution, statutory laws and by-laws, customs, traditional perceptions and practices, international conventions, treaties and protocols. An investigation into the statutory laws prevailing in Bangladesh would snitch that there are about 187 laws that channel with or have relevance to environment. The part administration of the statutory enactment would position the laws on environment under some(prenominal) heads. These would include, land use and administration, water resources, fisheries, forestry, aptitude and mineral resources, befoulment and conservation, wildlife and domestic animals, displacement, vulnerable groups, relief and rehabilitation, local government, rural and urban planning and protection.The laws on physical environment do address issues like occupational rights and safety, public safety and insecurityous substances, dit and safety, cultural and natural heritage and so on. The environmental legislation are sectorally compartmentalized e excessly the substantive and administrative radiation diagrams. The adjective rules for the Courts to administer these laws would be derived mostly from the same general codes, e. g. , the Civil Procedure Code, 1908, the abomi nable Procedure Code, 1989 and the Evidence Act, 1872. Development of Judicial Activism in the Environmental Regime & the ECA The law that deals specifically with environment is the Environment conservation Act (ECA), 199528.The Act has come into force since the June 1995 and to some extent has recognized the Rio principles of precaution, polluters founder and peoples club. The ECA has replaced the earlier Environment contaminant Control Ordinance, 1977 and has added new dimension to environment focus by making a shift from contamination visualize to environment conservation. The upstart amendment of the Act in 2002 has given the eatable of the law overriding effect over all other laws29. According to section 2(d) of the ECA environment shall include water, air, land and physical straight-lacedties. The inter relationship among and between these components of environment and human and other living beings, plants and micro-organisms are as well included in the broader def inition of environment.The ECA has open the section of Environment ( zip) and has authorized its handler General (DG) to take all such steps as are needful for the conservation of environment, progress of environmental standard and control and mitigation of contaminant30. In line with voice 11 of the Agenda 21 that calls for conservation and management of resources for development, the ECA in Section 5 has authorized the government to apply areas of great ecological importance as Ecologically Critical landing field. Such legal sureness would allow the government to withstand fragile eco systems as fine or protected areas and bring them under special management system. Section 5 of the ECA reads as follows Declaration of Ecologically Critical Area (1) If the presidential term is satisfied that due to degradation of environment the eco-system of any area has reached or is flagellumened to reach a critical state, the governance may, by presentment in the official Gazett e, declare such area as ecologically critical area. The Government shall specify, in the telling provided in branch (1) or in any other separate notification, which of the works or processes shall be carried out or shall not be initiated in the ecologically critical area. at a lower place Section 5, the Ministry of Environment and Forests (MoEF) has already tell 8 areas including one mother fishery (wetland), fragile coral island, part of worlds largest mangrove forest as ecologically critical areas31 and has brought them under special protective measures.Such initiative of the Government of Bangladesh potently supports its commitment expressed under the variant CTPs including the Convention in Biological Diversity, 1992 and the Convention on Wetlands of internationalistic importance curiously as Waterfowl Habitat, 1971. Most deep, the storage locker on 22 July 2002 has approved the International Convention on Oil pollution Preparedness Response and Cooperation, 1990 pa ving the way to protect its territorial water from oil contaminant. Section 2(1) of the Act defines overpluss and authorizes the Government to square off the standard for sacking and emission of waste including radioactive wastes Section 20(2)(e). barbaric substance has also been defined Section 2(i) and the Government has been authorized to lay down rules for environmentally sound management of hazardous substances and toxic wastes.Although the Government is and to exercise its rule making powers, these legal developments correspond to the accepted framework of Agenda 21 calling for environmentally sound management of hazardous wastes and substances. At the national frontier, the Government in exercise of its powers under the Agricultural Pesticides Ordinance, 197132 has banned the import of ten pesticides for their hazardous impact on plant human and animal life33. Worth mentioning, Bangladesh has approved the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, 1989. The country has also sign-language(a) the new-madely adopted Stockholm Convention on Persistent Organic Pollutant, 2001 on 23 May 2001. Section 12 of the ECA incorporates the preventative principle by requiring ndustrial unit or brooks to be established after obtaining environmental clearance from the vigor. Any violating unit may be shut down by the DG, free energy. The revise ECA34 empowers the government to ban products that are harmful to environment and the government, with active troth from the people, has been very successful in criminalise the production, use and sale of polythene products infra 20 macron. The most significant advancements after the enactment of the ECA have been the setting up of quality standard for air, water, noise and grease and the formulation of environmental guidelines to control and mitigate taint. The setting up of such standards has been through through the Environment Conservation Rules fr ame in in 1997.The Rules have detailed out the development where environmental impact sagacity (EIA) would be necessary. This has made EIA mandatory for guarantee projects and industries although procedural details of EIA are withal to follow. The Government may think of making the EIA process participatory ensuring access in decision-making process. The ECA has made it an rudeness to discharge excessive pollutants and ca apply malign, direct or indirect, to eco-systems. Sections 7 and 9 of the ECA have in effect incorporated the principle of polluters pay. at a lower place Section 7 the DG shall require any person including companies responsible for pollution to adopt corrective measures and also to pay good the handoutes caused by such pollution.In the event of failure by the polluter to prevent emission of excessive discharge the DG shall initiate the needed bettering measures and the expenses incurred shall be recovered from the polluter as public demand35. The ECA tends to watch access to administrative proceedings and also to participation in the decision making process. Section 8 of the ECA allows a person affected or likely to be affected from the pollution or degradation of environment to apply to the DG for remedying the damage or grok damage. The DG may adopt any measures including public hearing for setting such grievance. Under the original Act, cognizance of offence by the courts required a scripted report from the DG. The indispensability of report from DG, zip would have adverse affect on right to justice. Fortunately, the original Act has been amended in a positive fashion.The requirement of written report although still valid, may be relaxed at the discretion of the judiciary if there appears to be a prima(predicate) facie case and also failure on part of DoE to take proper initiative. Amended Section 4A of the ECA has required all statutory agencies to render assistance and operate to the DG on his request. Violation of the pro visions of the Act has been made an offence and may be visited with a penalty of Taka 10 lakh and/or 10 historic period of imprisonment36. The Act has recently been amended to provide for different punishment for invasion of different provisions. For proper execution of instrument of the ECA, it has been proposed to set up environmental courts in the six administrative functions of the country37.The proposed courts would administer the environmental offences under the ECA and also other laws as may be notified by the Government in official Gazette. This revolutionary step aims at ensuring nimble trial and disposal of environmental cases. The Act provides in details the investigation and trial procedure for the Courts comprising of processs of the subordinate judiciary. Section 9 of the Act empowers the Environmental Courts to use the fine realized as compensation for the people affected by the environmental offence. The judges for two environmental courts have already been ap pointed and it is expected that the judicial system will start functioning soon. An amendment to the Forest Act, 1927 in 200038 has provided scope for public participation in environmental resource management.The impudently added section 28A has given express legal recognition to the concept of social forestry and has empower the government to make rules requiring an agreed upon management plan for social forestry programmes. The rules are in the process of finalization. Another significant composing of law enacted in 2000 is the Open pose Protection Act, 200039. With proper execution of the law, the single administration can protect the natural water bodies including the flood plains of the urban areas from file up for the sake of urbanization and development. In addition, legal regime on environment contains provisions recognizing customary rights over forest40, access to open water fisheries41 and participation in the development process while finalizing water related sche mes42 and master plan for urban areas43.Legal regime provides punishment against pollution of territorial waters44 and prohibits pollution of air, water and soil from outlandish, fishery, industry, vehicle and other sources45. Environmental resources like forest and fishery have been given special status for protection purposes. Administration of Environmental Justice The Court Cases On the fact of activism by the civil society, the judiciary in Bangladesh has started responding to cases want environmental justice. Judicial activism contributes to proper executing of environmental laws and allows the vast majority of the backward section access to the justice system.As a result of progressive interpretation by the judiciary of some constitutional and legal provisions, public p charter judicial proceeding (PIL) and right to environment have trustworthy express legal recognition. The cases decided by the judiciary have tended to activate the executive, create wider awareness and affected the value system of the administration and the society. In the cases on environment decided so far by the judiciary, directions have been given to the government agencies to get along their statutory functions. each these decided cases have addressed issues on sustainable development, precautionary principle, participation and access and are sooner landmark decisions. With increased number of PILs in Bangladesh, it can now be express that the environmentalists and the civil society places confidence in the judiciary n redressing the grievance of the downtrodden and the deprived. In deciding some of the cases the judiciary has endorsed the innovations that justice require in one recent incident, the proud Court even intervened and issued suo moto rule to protect a public tend from pass onment. Environmental Nuisance should be Mitigated Judicial recognition for protection of environment was first recorded by the eminent Court46 in a case that challenged disgust durin g election take the field. The judiciary disposed of the case on assurance from the attorney General to take measures against defacing of public and private dimension in the name of election campaign. Right to EnvironmentThe judiciary, while deciding on a case involving importation of radiated milk47 given broader meaning to the constitutional right to life and held Right to life is not that limited to the protection of life and limbs but extends to the protection of health and strength of the workers, their means of livelihood, enjoyment of pollution-free water and air, bare necessaries of life, facilities for education, development of children, maternity benefit, free causa, maintenance and improvement of public health by creating and sustaining conditions grateful to good health and ensuring quality of life consistent with human dignity. Access to Justice Opening up the Horizon of Public Interest Litigation (PIL) In an bring up from the judgment of the eminent Court va riant dismissing a writ by a local environmentalist group on ground of locus standi, the appellant segmentation of the Supreme Court of Bangladesh in its historic judgment go out 25 July 1996 disposed(p) standing to the ground48.In allowing the stir, the judiciary interpreted the constitutional requirement of aggrieved in ship canal beyond the strict traditional concept. The supplicant being allowed is a landmark decision in addressing the constitutional knot and test that have been prevailing on the door question as to who is an aggrieved person for last cardinal four eld business relationship of our Constitution. The decision opened up the horizon of PIL in Bangladesh and since then the judiciary has entertained a good number of cases on environmental grievances. Right to Participation On exercise from a local environmental group, the High Court atom (HCD) of the Supreme Court also intervened to judge on the fair play of a development project called the climax Action- intent-2049.The supplicateer impeach the governing of violating a number of laws that contain peoples participation in the decision making process, provide for compensating affected people for all sorts of loss and protect the national heritage. The Court delivered judgment on 28 grand 1997 and observed, in implementing the project the respondents (government) cannot with impunity violate the provisions of law. The Court order the governance to execute the work in meekness with the requirements of law that guarantee right to participation and compensations. Suo motu Rule against Grabbing Land of Public Garden The Court has been active in protecting the environment in specific coterie action, and it has also given rules, suo motu, questioning clamant violations of the states obligations to protect and defend the environment.In one such case, the High Court social class (HCD) issued a suo moto rule when, in violation of an earlier order of the Court to maintain status qu o, gunned hoodlums attempted to encroach upon 2. 8 acres land of the only public garden of old capital of Bangladesh for construction of hotel therein. Protecting River from Encroachment On application from an environmentalist group50 seeking judicial intervention to protect the only river menses through Dhaka from under-the-counter encroachment, the HCD direct the touch on statutory governing to pass along before the Court an action plan setting out definite time frame and measures to be under taken for removing the encroachers. describeing the postulation, the government acted to remove the encroachers and the river now stands free from nonlegal occupation.Taking from the learning of this case, the government has constituted an inter-ministerial military commission to remove illegal occupation from the other rivers of the country. Checking Industrial Pollution In a recent decision, the HCD gave directions to check indiscriminate pollution of air, water, soil and the env ironment by 903 industries belonging51. These industries were set polluters by the Ministry of topical anesthetic Government, Rural Development and Co-operatives (LGRDC). The 14 sectors include Tanneries, Paper and Pulp, pillage Mills, Distilleries, branding iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, guard and Plastic, tyre and Tube and Jute.An official notification of the government say the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to witness within tether days that appropriate pollution control measures were undertaken by the identified polluting industries. The nary(prenominal)ification also required the express authorities to procure that no new industry could be set up within pollution weightlifting devices. When no measure was taken even after the lapse of octad years, the preceding(prenominal) appeal was filed. by and by a lengthy hearing, the Court enjoin implementation of the directions given in the notification. To ensure implementation of the Court order, it was required from the respondents to report to the Court after six months by furnishing concerned affidavit show compliance. The Court held it mperative on the part of the DG, DoE to take penal action against such department or persons responsible for not implementing the ECA, 1995. Vehicular Pollution to be Reduced The HCD, in a recent decision, gave a comprehensive judgment52 to fight vehicular pollution at different from. The six directives of the Court required the authorities to Phase out all two- apoplexy vehicles from city streets of the Capital by December 2002 change all accelerator pedal and diesel-fuelled government vehicles into cockeyed Natural gaseous state (CNG) provide within six months Enforce the prohibition on use of pneumatic horns within 30 days Check seaworthiness of vehicles using computerized system with immediate effect Follow international standard of fuel by decrease or eliminating toxic elements unbending up adequate number of CNG fill up stations within six months and ensure that all cars imported since July 2001 is fitted with catalytic converter. This beseech also has been kept pending for save monitoring. The other pending cases on environment involves preservation up of lakes, flood function zones and rivers, encroachment over rivers, violation of construction law, pollution from brick fields, environmental hazards of shrimp cultivation, last of hills, gas explosion without environmental impact assessment (EIA), compensation for environmental reparation and so on.Judicial Decisions in the Issue of Environment of Bangladesh The concept of public interest judicial proceeding as has emerged into the judicial administration of Bangladesh is yet to mature with the concept of justice guaranteed by the Constitution. This is a crucial concept in a country like ours where 65% of the total populace have no or less access to judiciary although the constitution commits for equality before law, justice, right to life and equal enjoyment of radical rights by all citizens. With obvious socio-economic constraints and a long history of feudal past, the recognition of legally recognized rights is still subject for movement by various social and jam groups.In recent time the movement for enjoyment of rights took a new dimension as the potential of judiciary is being increasingly emphasized by the activists and the courts are dealing with cases seeking relief against administrative confusion and ignorance. It was interesting to note that the concept of PIL is developing in Bangladesh as a performance of public duty by some citizens groups holding or advocating in support of progressive ideologies. Thus in 1994 a petition was first taken before the High Court by a national non-governmental organization called Bangladesh Environmental Lawyers acquainta nce (BELA) on behalf of the people of a locality where a disputed development action was being implemented. The petition was at first rejected by the court on the ground of standing of the organization.An woo was preferred from that rejection where the core question was whether groups like BELA with dedicated and sincere record of activism can claim to have acquired sufficient interest to seek judicial redress against anarchy in its own field of action. The question was vital as it was a constitutional requirement under Article 102 that it is only a person aggrieved who can file petitions for enforcement of thoroughgoing rights. Being responded by the Supreme Court in the positive this became the turning point in the history of PIL in Bangladesh. BELA that led the movement for opening up the horizon of PIL in Bangladesh has filed the cases noted below 1. Dr. Mohiuddin Farooque v. Election Commission & others judicial writ request zero(prenominal) 186/1994 (Nuisance during Electi on Campaign)The first ever-environmental litigation was filed in 1994 in the form of a judicial writ entreat in the High Court course 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 plebeian 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, etcetera of the city dwellers.The footpaths and other public places were saturated with election camps incessant use of out loudspeakers and oth er 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. restate appeals by the Election Commission for screening respect to the laws of the country were virtually ignored. All this anarchy prompted the institution of a petition where the Honble Court issued rule nisi upon the respondents communicate them to show cause as to why they should not be directed to obey with the directive issued by the Election Commissioner spot upon the various acts and laws and rules.The Court also considered the requester of the suppliant to restrain the Election Commissioner from holding the election till full compliance with the respondents. The rule, however, was disposed of, following assurance from the Attorney General that the Government would take all necessary steps to implement all the directives of the Election Commission. 2. Dr. Mohiuddin Farooque v. Bangladesh & others Writ entreaty 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 disdainful 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 seventh 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 th e 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 in a higher place crave was filed.After seven years since the date of modify 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 suer 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 sternly affected by the identified 903 industries and that no affirmative action has been taken in fartherance 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 sh ows that the number of polluting industries have risen up to 1176. The Court earlier issued Rule inconclusive 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 asker, the Rule has been made absolute today and the DG, DoE has been directed to Report to this Court after six months by furnishing concerned affidavit showing that compliance of this Order of this Court. To ensure implementation of the Court irections, the Honble High Court further held that It will be despotic on the part of the theatre director General to take penal action against such department for persons who are responsible for not implementing the letter of the Environment Conservation Act, 1995. 3. Dr. Mohiuddin Farooque v. Bangladesh & others Writ postulation 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 alleviative 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 secretaire, Ministry of Communications (2) The Chairman, Bangladesh highway Transport government agency (3) The depositary, 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 metropolis 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) Cha irman, Bangladesh Petroleum Corporation, (12) The Secretary, Ministry of Industries, and (13) The Bangladesh Standards and Testing Institution. In his conformity the petitioner stated that the air pollution from faulty motor vehicles has been universally identified as a major holy terror to human body and life.Such pollution in Dhaka urban center 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 menace and the failures of the respondents in the performance of their statutory and public duties are depriving people of their fundamental rights pitiful the public peace creating public annoyance. He invoketed that the lead-laced gas emitted because of the use of leaded oil were severely affecting the lungs, liver, brain and the neuronic system, resulting to high blood pressure, IQ and memory-retention damage among children and damage to foetuses leading to deformed babies.The hi gh sulphur content in the petroleum, and then in the smoke, causes severe damage to the ecology. The main thrust of Dr. Farooques submission was that although the right to a safe and healthy environment has not been directly specified in the Constitution as a fundamental right, such a right is 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 support 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 orison, 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 loud signaling devices gi ving unduly harsh, shrill, loud or alarming noise. The consider 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 reborn 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 cream 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 survey with its decisio n 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 security measures 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 nothing and mineral resources submitted testimony (affidavit) in inverse before court. The matter is pending for further monitoring. 4. Sharif Nurul Ambia v. Bangladesh & others Writ solicit No. 937/ 1995 (Unlawful Construction) The Petition was filed with legal assistance from Bangladesh Environmental Lawyers Association (BELA) by Mr. Sharif Nurul Ambia, Joint General Secretary of Jatiya Samajtantric Dal (JSD). The Petition was moved by the Secretary General of BELA, Dr. Mohiuddin Farooque submitting that the DCC has undertaken the construction of the multi-storied co nstruction at the site earmarked for public car park in the RAJUK arrive at computer program unlawfully and without the latters approval and hence credible to be demolished.It was further submitted that the construction was keep defying DoEs finding that the said building would create a disruption to the environment of the area and the neighborhood depriving them the right to life, body and healthy environment against hazardous pollution and handicap to air and light as being endangered by the illegitimate 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 appellant Division. 5. Dr. Mohiuddin Farooque v. Bangladesh and others Civil assembling No. 24/1995 (Case on Standing) This accumulation arose from the judgment of the High Court Division dismissing a writ stating that BELA had no right to sue on behalf of the people of Tangail where the soaker Action Plan-20 was being implemented. On Appeal, the appellate Division granted standing to BELA on 25th July 1996.The main thrust of the appeal was to get a judicial finding of fact as to whether a person or group of persons could be aggrieved in ways beyond the strict traditional concept, which are now emerging in many legal systems, like suits by plain public-spirited persons or bodies having proven dedication. The appeal being allowed is a landmark decision in addressing the Constitutional knot and riddle that have been prevailing on the threshold question as to who is an aggrieved person for last twenty four years history of our constitution. 6. Dr. Mohiuddin Farooque v. Bangladesh & others (Writ Petition No. 998/94) Sekandar Ali Mondol v. Bangladesh and others (Writ Petition No. 1576/1994) (Challenging Flood Action Plan-20) In 1994, a Petition was filed by BELA challenging the implementation of Flood Action Plan-20 in Tangail.The Petition, first rej ected by Court on the ground of Standing of the Petitioner was subsequently sent for hearing on deserve 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 shrewdness on 28 August 97 and observed that in implementing the project the respondents cannot with impunity violate the provisions of law. We are of the view that the FAP-20 project work should be executed in complying with the requirements of law. 7. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 948/1997 (Uttara Lake Fill-up)A persona 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 Honble Court on presided over Mr. Justice Md. Imman Ali and Mr.Justice Shamin Hasnain on 17 February, 2004 discharged the rule without any order as to cost. After gating aforesaid judgement BELA filed Civil heterogenous Petition 84 of 2004 and Civil Petition for Leave to Appeal 564 of 2004 before the appellant division upon hearing the petitioner the Honble Appellate Division granted prayer Leave. pending hearing of the rule, parties are directed to maintain status quo. 8. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 1252/1997 (Unregulated Operation of Brick Field) The indiscriminate operation of 19 brickfields in Senbag of Noakhali District in violation of applicable legal provisions and rotary was brought to the visiting card 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 sluggish 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 of arms resulted in a tremendous pressure on the available stock of husbandry 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 topic and renewal of licenses permitting operations of 19 brick manufacturing kilns in the Senbag Thana under Noakhali District causing threat to the natural environment and health of the neighbouring residents of the area should not be declared to have been done without any lawful authority and be directed to implement the circular. The matter is now pending for hearing. 9. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 6020/1997 (Hill Cutting Case)The indiscriminate, unlawful and unauthorized strip and rising of hills within the Chittagong City Corporation and its beside areas was brought to judicial notice by BELA through the above petition. The Court on hearing the petitioner, Dr. Mohiuddin Farooque, directed the DG, DoE to submit a report on alleged illegal and indiscriminate cutting of hills, contributing to ecological imbalance and degradation o f environment of the city. The Court further order that the report should contain the measures taken by the Government to prevent such illegal activities. Subsequent application has been filed under the petition. The matter is now pending for hearing. 10. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 6105/1997 (Gas Explosion at Magurchara)The above petition was against the Secretary, Ministry of Energy and Mineral Resources, Chairman, Bangladesh Oil, Gas and Mineral Development Corporation (PETROBANGLA), DG, DoE and 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 hostile 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 storm 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 register of subsequent petition the petition is pending for hearing. 11. Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 7422/1997 (Gulshan Lake Fill-up)A division bench of the High Court Division issued a Rule in a petition filed in 1997 against implementation of an concordance 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 fruitless and void and of no legal effect. The Government subsequently cancelled the project. 12. Nijera Kori v. Bangladesh & others Writ Petition No. 1162/1998 (Allotment of Land for Shrimp Cultivation)The petition was filed against allotment of Government owned Khas Land to Shrimp Cultivators in Sudharam, P. S. of Noakhali District in contravention of the provision of the Land solicitude Manual, 1991 and Articles 15, 19, 31 and 32 of the Constitution depriving thereby the landless people. The Court on two occasions restrained the respondents from disturbing the nonaggressive possession of the landless families. The matter is now pending for hearing. 13. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 2482/1999 (Gulshan Lake) The unlawful filling up of Gulshan, Banani, Baridhara Lake for creating housing plots was challenged by other writ petition No. 482 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 townships 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 procession Act, 1953, against public interest and why they should not be directed to restore public property in a behavior 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 interpreting thereby water bodies of the Lake into private properties along with list o f 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. 14. Biplob Kumar Roy v. Bangladesh and others Writ Petition No. 1840 of 1999 (Nabaganga River) A Rule inconclusive was issued upon the Deputy Commissioner, Narail District for unlawfully leasing out part of the River Nabogonga having its flow through Rajpur to Jaipur Ghat. The rule came as a result of the Petition No. 840 of 1999 filed by BELA and one member of the l