THE ROLE OF GREEN TRIBUNALS IN SHAPING ENVIRONMENTAL JUSTICE IN BANGLADESH

AI Generated Image

The current world faces critical triple planetary crises which are composed of environmental pollution, climate change, and biodiversity loss. Nowadays, every global organization and institution actively supports the development of powerful local institutions which include specialized judicial bodies to handle environmental issues. This article will look into the legal frameworks that govern sustainable environmental conservation as well as outline a comparative analysis between the statutory laws in Bangladesh and India.

The Rio Declaration 1992 establishes through principles 10 and 13 the requirement for national authorities to establish local judicial administrative proceedings that would address environmental law violations. SDG 16 strengthens the importance of enabling effective local institutions with accountability and inclusiveness to ensure justice access for everyone in reaching sustainable development goals.

Even the Constitution of Bangladesh imposes a non-justiciable constitutional obligation on the state to safeguard the environment and biodiversity. Furthermore, case law over the years has well established that the right to life under Articles 31 and 32 of the Constitution is a justiciable fundamental right with intrinsic relations to the environment, and that the right to a safe, healthy, and pollution-free environment is a guaranteed fundamental right. As a result, the government bears the same responsibility as other basic rights in providing a safe, healthy, and pollution-free environment for all citizens of the country.

The combination of ineffective environment conservation mechanisms and natural climate change vulnerabilities makes Bangladesh susceptible to environmental harm. The situation in Australia New Zealand along with India provides valuable insights. The National Green Tribunal Act (NGTA) 2010 authorized India to create National Green Tribunals (NGTs) for accelerating the handling of environmental and natural resource and wildlife protection matters.

Bangladesh manages environmental adjudications through the combination of the Bangladesh Environment Conservation Act (BECA) 1995 with its Rules 1997 and the Environment Court Act (ECA) 2010. According to the ECA there is no requirement for special qualifications needed to serve as an environment court judge in Bangladesh but Section 4 of the NTGA specifies eligible credentials due to environmental violations' scientific nature.

The environment courts established under the ECA fall short on the issue of enforcement. Sections 15 and 16 of the BECA allow the court to impose a maximum fine of taka ten lac (with or without extra penalties) on both natural and juristic people, regardless of the seriousness of the crime. Section 26 of the NGTA (India) specifies, in order to enforce compliance with judicial decisions, that failure to comply with any NGTA instruction or any of its judgments shall result in imprisonment for three years or a fine ranging from 10 to 25 crore rupees, or both.

The ECA states under section 4 that the environment court will function through the authority of a Joint District Judge. The judge assumes partial judicial responsibility in environment courts while simultaneously fulfilling duties as a district judge who handles extensive cases in civil courts. According to section 5(3) of the NGTA the judicial members along with the expert members of the tribunal remain prohibited from maintaining any additional office during their appointment period thus promoting NGT judges’ efficiency.

Sections 19(1) and 19(3) of the NGTA (India) provide that the tribunal is not bound by the procedure laid down in the Bharatiya Nagarik Suraksha Sanhita 2023 (The Indian Code of Criminal Procedure) or the rules of evidence contained in the Bharatiya Sakshya Adhiniyam 2023 (Indian Evidence Act). In Bangladesh, however, sections 14(1) and 14(6) of the ECA allow for the use of CPC 1908 and CrPC 1898 in the trial and resolution of environmental actions and cases. The NGT operates on internationally acknowledged ideas such as the ‘polluter pays principle’ and ‘sustainable development’ as outlined in Section 20 of the NGTA (India), both of which are lacking from our statute. Another advantage of the NGT is that it encourages ADR processes and out-of-court settlement methods. Moreover under the ECA 2010, only a directly aggrieved individual has locus standi, and such locus standi is even constrained, needing prior clearance from the DoE to seek justice in court.

Though in the process of Public Interest Environmental Litigation (PIEL), the High Court Division of the Supreme Court has been applying its jurisdiction under Article 102 of the Constitution to safeguard citizens' environmental rights. However, it is insufficient to provide justice in environmental cases for a variety of reasons. Namely: Environmental lawsuits often take years, even decades, to complete, delaying justice and enabling suffering to keep happening. PIEL typically reacts to environmental damage after it has occurred, rather than preventing harm before it occurs; in other words, it does not have any suo moto rule.

Successful environmental courts , such as the Land and Environment Courts in New South Wales, Australia; the Environment Court in New Zealand; and the National Green Tribunal in India, make decisions based on legal, scientific, and technical knowledge in environmental areas, as well as experiences and skills in the related field. Judges in these courts are a combination of judicial officers and technical professionals from related professions. The Bench of the Environment Court of Australia and New Zealand consists of both judges and commissioners, where the commissioner serving as the court's non-judicial expert member.

Due to these legislative hurdles, the Environment Courts and Special Magistrate Courts struggle to fulfill their proper roles in protecting the environment and ensuring access to environmental justice throughout the country. As a result, it’s a high time that Bangladesh should learn from the Land and Environment Courts in New South Wales, Australia; the Environment Court in New Zealand; and the National Green Tribunal in India, and establish Green Tribunals to ensure a timely and fair trial of environmental concerns in Bangladesh. 

Article authored by Kanak Kanti Karmakar, Lecturer in the Department of Law & Justice at North East University Bangladesh, Sylhet. Co-authored by Pritom Kanti Karmakar, LLB Student at Stamford University Bangladesh, Dhaka