Role of Criminal Law in the protection of the Environment:Bangladesh context Khondaker Showkat Hossain
Deputy Director,
Bureau of Anti Corruption, Bangladesh
To attain the ultimate goal of the sustainable development and effective environmental protection on a regional and global level Bangladesh is working since its participation in the Stockholm Conference on 5th June 1972, which was organized by the United Nations according to its certain resolutions adopted in the General Assembly held in 1968. This is also true that, environment pollution and its control, environment protection, environmental management, ecological balance - are comparatively new concepts in Bangladesh. It was only in the late sixties that the trend of environmental degradation was first observed with anxiety by various quarters in Bangladesh. With the advent of the 70's a general realization and awareness that human activities, intentionally or inadvertently, have been causing modifications, changes and damages to the environment became manifest.However, environment has now been accepted the world over as the key concern for the progress and very survival of the mankind. In the recent years, the importance of proper environmental protection and management has been duly recognized. Bangladesh is also, being a member of the international community, taking steps corresponding to the world over concern and initiatives by modernizing and by increasing use of its criminal law, procedure and other criminal instruments.
Background of legal system in Bangladesh Bangladesh inherited a legal system introduced in the 19th and 20th centuries by the British. The system of regulatory regime is 'sectoralised' under various Ministries, and as such the component of the environmental regime are also conceptualized, managed and governed in the same style. This sector based - compartmentalization of environmental regulatory framework developed uncoordinated, competing and often adversarial approaches unfriendly to sustainable management of resources and ecological governance. The Bangladesh Environmental Lawyers' Association (BELA) has so far identified about 182 laws (excluding rules and by-laws) having relevance with environment. However, it appears that the study of environmental regulatory regime and the role of law in that process have been receiving recognition.
The Constitution of Bangladesh
The main law of the land provides the following provisions, which is contributing to the role of criminal law in the protection of the environment.
(1)."The state shall regard the raising of the level of nutrition and the improvement of public health as among its primary duties."(article-18.1).
(2) The fundamental rights contain articles 31 and 32 which guarantees "right to life". In two recent cases Dr. Mohiuddin Farooque vs. Bangladesh (17 Bangladesh legal digest, 1) the Supreme Court has held that the "right to life " enshrined the fundamental rights includes "right to a healthy environment".
The Penal Code
Although The Penal Code (1860 as amended from time to time) is not an environmental legislation but it is providing punishments for environmental crime since nearly one and half century. It provides unishments for the following acts as specified in the law:
(1) Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general, dwelling or carrying on business in the neighborhood or passing along a public way
(2) Whoever voluntarily corrupts or fouls the water of any public spring or reservoir so as to render it less fit for the purpose for which it is ordinarily used.
(3) Sale or offer for sale of any article of food or drink which has been rendered noxious and adulteration of articles of food or drink intended for sale.
(4) Public nuisance meaning any act or omission which causes any common injury, danger or annoyance to the public.
(5) Adulteration of drugs or medicines so as to lessen their efficacy or to make it noxious and also sale of such drugs or medicines.
The Code of Criminal Procedure The code of Criminal Procedure (1898 as amended from time to time) also provides some arrangements for environment conservation. These are:
(1) Order by the Magistrate for removal of nuisance (section-132);
(2) An injunction to the person against whom the order was made (section-142);
(3) Power to issue order absolute at once in urgent cases of nuisance or apprehended danger (section-144).
Factories act of 1965
The act consolidated the earlier laws on the subject and repealed the Factories act 1921. The newly act has made ample provisions for health and sanitary measures for the protection of workers from health hazards. For the proper execution of this act the Factory Rules -1979 were introduced. Under the provisions of the 'Factories act' the Chief Inspector of the factories and his staffs were empowered and entrusted to control the use, handling and discharge of toxic and other pollutants primarily to protect the health and well being of workers.
Water Pollution Control Act of 1973
The national leaders and policy-makers realizing the importance of water pollution control and to give it a mandatory thrust, initiated discussions on a 'Water pollution Control Bill' in the late sixties, which was finally passed and promulgated as the 'Water Pollution Control Act of 1973'. Under this act, pollution control activities remained confined to ground and surface water operation only. The act set up a small unit for water pollution control under 'water pollution control project' and it worked under guidance and supervision of Directorate of public Health Engineering
(DPHE). The Unit initiated the monitoring of stream water quality at a number of locations (about 20 geographical locations) on nine major rivers of the country and also some ponds, canals, wells, effluent out falls / drains etc.
Environment Pollution Control Ordinance of 1977
Actually till independence in 1971 and even a few years following that, the only organization directly involved with environmental aspects, to some extent, were the Directorate of Public Health Engineering (DPHE) and municipal bodies of various towns. Till the late sixties there was no separate establishment responsible for environmental pollution control or environmental management. Municipal and other local bodies, in limited degrees, tried to control health related water pollution and smoke nuisance through their by-laws. The Directorate of Public Health Engineering (DPHE) set up in the fifties was responsible for construction of community water supply as also sewage disposal systems. They had a limited competence to monitor ambient water quality and effluent discharge. In 1977, the Government promulgated the "Environment Pollution Control Ordinance" (EPCO)
(Ordinance No. XIII of 1977) which continues to be the only effective legislation in respect of environment protection till 1995. This ordinance provided for constitution of an " Environment Pollution Control Board" The Board was to be the body to lay down polices in control, prevention and abatement of environmental Pollution and to suggest measures for implementation of such polices. The actual implementation was the responsibility of the "Environment pollution control cell. Under this cell a project named " Environment Pollution Control Project" (EPC project) was initiated in 1977 and continued till May 1985. In 1982 the cell and in 1985 the part of the EPC project was transferred to revenue budget (Regular Government budget) and on the recommendations of the Government Re-organization Committee the 'Department of Environment Pollution Control' was set up and started working. Separate Ministry, Directorate and comprehensive legislation for coordinated environment conservation
The civil society including press and NGOs strongly advocated for a separate Ministry for environment for long. In late 80's the issue environmental conservation needs and the management aspect of it received attention of the policy makers and the Government created Ministry for environment in 1989. To consolidate and intensify various efforts towards environment conservation the Department of Environment Pollution Control was reconstituted as Department of Environment. And was placed under the newly formed Ministry of Environment and Forest in 1989. The department is charged with greater responsibility and power and has a broader mandate of work.
The civil society also felt a need for an environment policy towards achieving sustainable management of natural resources and for protection of environment from further degradation. Realizing the needs the National Environmental Policy was adopted by the Government in 1992 which provides general guiding statements and then goes on to describe sectoral principles on how to manage the sectoral affairs in an environmental sound manner.
Environment protection act-1995
Though the Environment Pollution Control Ordinance of 1977 was in operation and there are some environment related provisions - directly or indirectly in some other acts ordinances and laws but to make the law more comprehensive and the penalties more stringent a new, revised act named Bangladesh Environment Preservation Act was promulgated in 1995. The new act has updated the earlier provisions in the light of experience of environmental laws home and abroad. The draft act was reviewed by ADB consultant on environmental technology and management expert Dr. Nilay Chowdhury and by another two ADB consultants Dr. GD Agrawal and Dr. HF Ludwig. To realize the purpose of the act Government already have introduced environment protection rules-1997
Decision of the National Environment Committee meeting held on 4th may 1997:
National Environment committee in its meeting held on 4th May 1997 presided over by the Hon'ble Prime Minister has taken the following decisions:
(1) Banks / other financial institutions that follow usual rules while sanctioning loans to the proposed industries will ensure environment pollution control measures of the existing industries while sanctioning them working capital.
(2) In case of BMRE activities of the existing industries, banks / financial institutions may take same steps that of the proposed industries towards conservation of environment.
(3) Banks / Financial institutions shall have to be confirmed about the inclusion of waste treatment plant machinery of the industries (under the bank loan) in the import list.
Conclusion:
Most important part of the legal system is the proper implementation and enforcement of laws. And definitely it is not just possible on the part of the Police or the Judiciary only. The other concerned agencies Government or NGOs and the public in general have a very important role to play in it to make it real comprehensive and beneficial for the overall sustainable development of Bangladesh.
It is mentionable that now in Bangladesh through legislation and by active participation of the Government directorate for environment and many NGOs working in the field of environment protection like 'Bangladesh Environmental Lawyers' Association (BELA)', 'PARASH (commitment for environment protection)', 'Institute for Environment and Development (IED), Dhaka are mobilizing and coordinating and working together with other organizations, Government and Non-Government, to create public awareness and their active participation to achieve the goal and their increasing success, so far, very encouraging.
*Khondaker Showkat Hossain, Member, ACPF, Bangladesh.
Role of Criminal Law in the protection of the Environment:
Bangladesh context.
A brief context
Khondaker Showkat Hossain
Deputy Director, Bureau of Anti Corruption, Bangladesh
Bangladesh is working since its participation in the Stockholm Conference
on 5th June 1972. Bangladesh inherited a legal system introduced in the
19th and 20th centuries by the British. The Bangladesh Environmental
Lawyers' Association (BELA) has so far identified about 182 laws having
relevance with environment.
The Constitution of Bangladesh provides the some provisions, which is
contributing to the role of criminal law in the protection of the
environment.
The Penal Code is providing punishments for environmental crime .The code
of Criminal Procedure also provides some arrangements for environment
conservation.
The Factories act of 1965 has made provisions for health and sanitary
measures for the protection of workers from health hazards. The 'Water
Pollution Control Act was promulgated in 1973'. In 1977, the Government
promulgated the "Environment Pollution Control Ordinance" which continues
to be the only effective legislation in respect of environment protection
till 1995. The Government created Ministry for environment. and the
Department of Environment. in 1989. The National Environmental Policy was
adopted by the Government in 1992 .
Bangladesh Environment Preservation Act was promulgated in 1995. Government
already have introduced environment protection rules-1997
Now in Bangladesh through legislation and by active participation of the
Government directorate and many NGOs working in the field of environment
protection .