Agenda 21, a comprehensive action program adopted at the historic Rio Conference of 1992, was designated to integrate the goals of continued economic development and environmental protection. In pursuance of this Agenda, the first Environment Court Act was passed in 2000. However, to meet the challenge of time and to ensure the proper application of environmental laws of Bangladesh effectively, the Environment Court Act, 2000 has been repealed in 2010 and the new Environment Court Act, 2010 has been passed with the object of establishing environmental courts for speedy trial of environmental offences and matters incidental thereto. But the Court established under the Act is not functioning effectively due to the following loopholes:
As per section 4 of the ECA, 2010 the environment court consisting of joint district judge is required to perform the functions of environmental court in addition to his general duties. Being already burdened with backlog of cases in civil and criminal courts, how can a joint district judge perform the gigantic functions of civil, criminal and environmental courts?
Since the environmental offences are of special nature involving scientific and technical implications of environmental violations, expert knowledge is specially required to determine the level or presence of pollution. But the Environment Court Act, 2010 requires no such experts in the constitution of environmental courts.
Designing the environmental courts dependent on the written report of an inspector of the Department of Environment to take cognizance of a cause gives the executive preference over the judiciary. However, the court can directly receive a case from private persons without such prior authorization if the court is satisfied that a person presented a written request to the Inspector to accept the case and no action was taken within 60 days after such request or the court, in such circumstance, may direct the said Inspector to investigate the case. But the ECA nowhere provides for any time-limit within which the investigation is to be concluded. As a result the Inspectors frequently delays in submitting reports to the court.
The ECA, 2010 has not recognized the substantive or procedural principles of the environmental jurisprudence e.g. Principle of harm prevention, precautionary principle, principle of sustainable development, principle of prior notification and principle of public participation in decision making process etc. Again, the environment court has no suo moto or epistolary jurisdiction to take up an environmental cause and to try it. The court also lacks in possessing the power of judicial review.
The special public prosecutors or the special Government Pleaders appointed as per provision section 14(4) are not well conversant with the environmental laws and in some cases they willingly do not produce evidences and witnesses to establish the violation of environmental laws. As a result, the court fails to uphold environmental justice.
The ECA, 2010 though intended to provide speedy environmental protection, the procedure accommodated in sections 10 &14 and application of CPC, 1908 and CrPC, 1898 to the trial and disposal of environmental suits and cases make the trial dilatory and procedurally complicated.
The environment court has also some limitations in exercising its jurisdiction such as the court can deal only with the matters arising out of the Environment Conservation Act 1995, keeping a wide range of other environmental laws beyond its ambit though as per section 2 of the ECA, 2010 any other law may be specified by the Government in the official Gazette for the purpose of the Act and another limitation is that the court as per section 15(1) of the Environment Conservation Act 1995 read with section 2 of the ECA,2010 can impose the maximum penalty of taka 10 lac irrespective of the gravity of environmental harm or tort.
The adoption of the Environment Court Act, 2010 is undoubtedly a milestone in the journey of environmental protection in Bangladesh. The court established under the Act should have been designed in such a manner that can overcome the adversarial drawbacks of civil and criminal courts. But the Act fails to ensure speedy and effective environmental protection due to some latent defects. Releasing the environmental court from the workloads of civil suits and criminal cases, entrusting it with the sole function of trying environmental cause, empowering it with suo moto and judicial review power, extending its scope of application and jurisdiction, and removing all other loopholes can make the court competent for the coherent dispensation of environmental justice in Bangladesh.
The writer is Lecturer in Law at Cox's Bazar International University.