Discrepancies in the environmental law of Bangladesh

9 May, 2021 12:00 AM printer

The world has given us many resources to enjoy and use. We have been utilising those resources from our arrival in this world without paying heed to any conservation. Because of this, the environment is deteriorating to the extent that it has become unbearable for the earth.

Environmental concern has been on the emergence from the middle of the last century. After World War II, when the environment was severely damaged, 51 nations established the United Nations, committed to maintaining international peace and security. Until then, there was no precise instrument where all the principles of international environmental law had been codified. But the directions regarding environmental issues are found in the different international declarations, treaties and conventions.

Bangladesh has signed a lot of treaty, convention and protocol relating to environmental problems. The notable principles are: Sustainable Development, Integration and Interdependence; Inter-generational and Inter-general equity; Responsibility for Cross-Border Damage; Transparency, Public Participation and Access to Information and Remedies; Cooperation and Familiar and Individual Responsibilities; Alert Resistance; Provide Contaminant Policy; Access and Benefit-Sharing related to natural resources; General Heritage and common concerns of mankind; Good Governance, which was known as soft law. It is also claimed that soft law has developed as a significant source of environmental law at this time.

To protect the environment, improve environmental conditions, and control and eliminate environmental pollution in Bangladesh, the Bangladesh Environmental Conservation Act, 1995 was passed. Which came into force in 1999 and was revised in 2010 for the third time. Although the name of this law implies conservation, excluding the ECA (Ecological Critical Area) declaration, this law did not focus on any sort of conservation. Ecologically Critical Areas (ECA) are defined ecosystems affected adversely by the changes brought through human activities. The key aim of conserving ECAs is to protect the significant environmental features from encroachment by skewered development.

With constant environmental degradation in Bangladesh, the significance of conserved ECAs has been hailed by few esteemed decisions of the Bangladesh Supreme Court. After that, The Government finally adopted the Ecologically Critical Area Management Rules in 2016.

The promulgation of the rules has great significance for the protection and improvement of the environment in Bangladesh. The authorities have introduced many innovations in the management of ECAs, which include: inter alia, public participation in environmental decision-making, proper monitoring by the responsible authority, reporting to the Government, a specialised funding mechanism, involvement of local communities in resource management, alternative livelihood generation for affected people, incentives for local communities involved in management, the preparation of site-specific plans for the management of ECAs, and also the encouragement of public-private partnerships for environmental management.

Despite these positive attributes of the rules, there are some practical hurdles for implementing the regulations. Within the first instance, the rules haven't established any independent institutional mechanism. Not a single dedicated post or office has been created by the principles. It shares the existing entities, i.e., the Department of Environment (DoE), to manage ECAs. Though the rules provide that an official of the DoE will perform the secretarial functions of the District, Upazila, and Union committees, the DoE only has offices in 22 out of 64 districts. Also, it has no office in any Upazila or Union. For the practical administration of ECAs, at least one accessible cell inside the head office of DoE and one office of the DoE in each district need to be built up to supervise these rules requirements.

Second, the majority of the Committees' roles are advisory in nature, and few of the different committees' functions overlap and, in some cases, seem to be contradictory. For example, in terms of creating alternative livelihood for affected persons, District and Upazila Committees overlap and are conflicting in how the National Committee can make recommendations. At the same time, the District and Upazila Committees have a legal obligation to deal with this issue and initiate legal proceedings against any prohibited activities in ECAs. Lack of power and coherence will undermine the achievement of the objectives of the rules. The rules also provide for direct legal proceedings by the Committees. Because the Rules are framed under the (BECA 1995), any case under regulations must be initiated within the Environment Courts. So, not anyone or group of persons or a committee can file a lawsuit to the Environment Courts, which further hinder the enforcement of the rules.

Furthermore, while the guideline pays impressive attention to developing alternative livelihoods for affected people. Still, such alternative livelihoods do not include access to funds from the Ecology Management Fund.  Finally, the rules primarily deal with procedural matters without prescribing substantive rights or obligations. Violation of any provision of these Rules is an offence punishable by imprisonment up to two years or a fine up to BDT 2 lac. Which is undoubtedly challenging to enforce in a lawsuit.

For the effective implementation of these Rules, the above shortcomings and inconsistencies should be removed. Also, a funding mechanism should be established with regular and adequate flow of finance.

 

MD. Taher Uddin Rudro, Department of Law,

North-South University, Dhaka


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