Environmental Justice:Environmental Justice:Challenges, Access and Necessity of Challenges, Access and Necessity of

National NetworkNational Network

M. Iqbal KabirM. Iqbal Kabir

Lawyer, BELALawyer, BELA

PROBLEMS…

Contamination of Rivers

All 7 rivers flowing through & around the capital were declared biologically dead

Unplanned Urbanization

Filling up of wetlands by land grabbers causing deterioration of wetlands

Degradation of Forests

Total Coverage has shrunk from 16% in 1970 to 6% in 2006

Salinity Intrusion and Loss of Agricultural Land

17% of agricultural land is used for shrimp cultivation for export.

Disaster

Leading to Climate Refugees

Industrial Pollution

Dumping of Wastes

Shipbreaking

Kills and Pollutes

• The Constitution of the People’s Republic of Bangladesh, 1972

* Article 102 – Power of High Court Division to issue certain orders and directions, etc.

* Article 18A – Protection and improvement of environment and biodiversity

* Article 31 – Right to protection of law

* Article 32 – Protection of right to life and personal liberty

* Article 40 – Freedom of profession or occupation

Legal Provisions &Legal Provisions &Available Judicial ForumAvailable Judicial Forum

• The Penal Code, 1860

* Section 268 – provides punishment for the offence of committing a public nuisance

* Sections 269 & 270 – a negligent act resulting in an infection that is dangerous to life is an offence* Sections 272 to 276 – acts of adulteration of food, drinks and drugs are offences * Section 277 – contaminating the water of a public spring or

reservoir to make it unfit for ordinary use is a punishable offence * Section 278 – poisoning the atmosphere to the detriment of

persons living in the neighborhood or passing along a public way is a punishable offence

* Sections 284 to 287 – negligence in the use of poisonous substance, fire and combustible matter, explosive substances and

machinery is also punishable if it results in danger to human life

Legal Provisions &Legal Provisions &Available Judicial Forum(Contd…)Available Judicial Forum(Contd…)

• The Code of Civil Procedure, 1908

* Section 9 – empowers the court to try suits of civil nature – relief in the form of damages,

injunction, interim orders, declaration and decree

* Section 91 – suit may be filed in case of a public nuisance or other wrongful acts affecting or likely to affect the public

* Order 1 Rule 8 – class action

Legal Provisions &Legal Provisions &Available Judicial Forum(Contd…)Available Judicial Forum(Contd…)

• The Code of Criminal Procedure, 1898

* Section 133 – an executive magistrate can interfere and remove a pubic nuisance of an environmental nature

* Section 142 – he can adopt immediate measures to prevent danger or injury of a serious kind to the public

* Section 144 – for prevention of danger to human life, health or safety, the magistrate can direct a

person to abstain from certain acts

Legal Provisions &Legal Provisions &Available Judicial Forum(Contd…)Available Judicial Forum(Contd…)

• The Environment Conservation Act, 1995

* Section 4(3) – Power of the DG, DoE to issue direction for the closure, prohibition or regulation of any industry, initiative or process * Section 8(2) – Power of the DG to adopt any measures including public hearings for settling an application regarding environmental pollution or degradation

* Section 14 – Any person aggrieved may prefer an appeal to the appellate authority and the order passed by such authority on appeal shall be final and no suit can be filed in any court against such order*Section 4, 6, 6A, 9, 12 – Offences - Non-compliance with directions, harmful activities in ECAs; emitting injurious smoke from vehicles; manufacture, sale of injurious articles; discharge of excessive environmental pollutants; operating industry/project without environmental clearance

Legal Provisions &Legal Provisions &Available Judicial Forum (Contd…)Available Judicial Forum (Contd…)

• The Environment Court Act, 2010

* Section 4 – Establishment of Environment Courts in each district to try offences under the ECA and any other law specified by the government for the purposes of this law

* Section 5 – Establishment of Special MagistrateCourts

* Section 6 – Jurisdiction of Special Magistrate Court

* Section 7 – Jurisdiction of Environment Court

* Section 20- Environment Appellate Court

Legal Provisions &Legal Provisions &Available Judicial Forum (Contd…)Available Judicial Forum (Contd…)

Judicial Activism

in

Defending Environmental Rights

Court directed protection and restoration of the 7 rivers

Court comes forward in protecting Court comes forward in protecting forest and forest dwellersforest and forest dwellers

Court directs rights of disaster Court directs rights of disaster affected people to be definedaffected people to be defined

Industries to comply or shut downIndustries to comply or shut down

Shipbreaking ordered to be shutShipbreaking ordered to be shut

Rules to regulate import of hazardous wasteRules to regulate import of hazardous waste

ThreatsThreats

Writ Petition No/ 4604 of 2004 and

Writ Petition No. 5103 of 2003

Rule in Writ Petition No. 4604 of 2004 succeeds in part and the Rule in Writ Petition No. 5103 of 2003 fails.

In the result the Rule in Writ Petition No. 5103 of 2003 is discharged without any order as to cost. The impugned alleged obstruction made by respondent No. 4 against the illegal development of Housing project named Modhumoti Model Town is treated to have been made with lawful authority.

Considering the same competing public interest of the added respondent Considering the same competing public interest of the added respondent Nos. 8-52 and the other innumberable purchasers of plots in the said Nos. 8-52 and the other innumberable purchasers of plots in the said Modhumoti Model Town and its nearness to completion through investment Modhumoti Model Town and its nearness to completion through investment of corers of public money including Bank Finance and investment made by of corers of public money including Bank Finance and investment made by the purchasers of plot and considering the development of the area being the purchasers of plot and considering the development of the area being not absolutely barred under DMDP, we keep the avenue open for the not absolutely barred under DMDP, we keep the avenue open for the respondent No. 7 and others for procuring appropriate permission from the respondent No. 7 and others for procuring appropriate permission from the relevant authorities under the Provision of Section 75 of the Town relevant authorities under the Provision of Section 75 of the Town Improvement Act 1953 under Section 6 of Jaladhar Ain, 2000 (Act, 36 of Improvement Act 1953 under Section 6 of Jaladhar Ain, 2000 (Act, 36 of 2000) and also if required under any law applicable for the time being to 2000) and also if required under any law applicable for the time being to such Housing Development Project should it observesuch Housing Development Project should it observeall formalities of law.all formalities of law.

Civil Appeal No. 256 of 2009

With

Civil Appeal No. 253 to 255 of 2009

And Civil Petition for Leave to Appeal No. 1689 of 2009

What would be the position of the third party purchasers who claim to be bona fide purchasers?

Whether the fundamental right claimed by the third party purchasers is protected under article 42 of the constitution?

Whether Metro Makers has any obligation towards the third party purchasers?

Whether there is any legal bar to acquiring more than 100 bighs of land under PO No. 98 of 1972?

Even if there could not have been any law imposing restriction relating to the use of the nal lands in the areas in question which operate as reservoir of flood and rain water.Declared unlawful and Metro Makers are directed to restore the wetlands of these two mouzas to its original state within six months from the date of the availability of the certified copy of the judgment, failing which RAJUK is directed to undertake the work of restoration of these wetlands and recover the cost of restoration MM and their directors treating the cost as public demand.

Justice demands that third party should be compensated. Accordingly, MM are further directed to refund the purchasers double the amount of the money including the cost of registration of the deeds of sale received by them from the purchasers within six months.

Lawyer for the MMT

Mr. T H KhanMr. M Amirul IslamMr. Ajmamul Hussain QCMr. Rafique-ul HoqueMr. Rokanuddin MahmudMr. Mahabubey Alam Mr. Abdul Motin KashruMrs.Tania AmirMrs. Rezwana ChowdhuryMr. Srajul HoqMrs. Seema Zahur

For RAJUK and GoBMrs. Sigma HudaMr. AJ Mohammad AliMr. Shah Md. Ahsanur RahmanAdilur Rahman Shubhro DAG

For petitionerKhondker Mahbubuddin Ahmed Dr. Kamal HossainMahmudul IslamSyeda Rizwana Hasan (in person)M. Iqbal Kabir Tanjibul Alam

Animals keep on coming back aliveAnimals keep on coming back alive

Major LimitationsMajor Limitations

• Laws are backdated• Not compatible with policy commitments• Legal rights not clearly defined• Institutional incapacity• Weak implementation/enforcement• Lack of coordination• Limited scope for PP/Transparency• Lack of environmental awareness• Political will

Brings back smile!Brings back smile!

Thank youThank you