Environmental degradation and legal instruments
 
by K.M. Nurul Huda
 

Legal instruments play a vital role towards bringing about changes in behavioural attitude of the people in a democratic society. There are a set of Acts, rules, and policies in the country to deal with the problems of environment. Some laws are century-old and cannot cater to the need of the day. Some are new that need amendment to accommodate the existing environmental scenario. Though a single issue, environment encompasses different ministries in respect of causing pollution. Consolidation of all environment laws into a single law and arrangement of all environmental activities under one umbrella may bring good result towards conservation and improvement of environment. The government contemplates more amendments to the environmental laws. This article intends to analyse the effectiveness of existing laws that refer to environmental issues and puts forward a few recommendations for consideration.

The relevant laws and policies in operation for management of environment in the country are- (1) Penal Code, 1860, (2) Criminal Procedure Code (CrPC), 1898, (3) Factory Act, 1965, (4) Dhaka City Corporation (DCC) Ordinance, 1983, (5) Motor Vehicle Ordinance, 1983 (6) Bricks Kiln Control Act, 1989, (7) The National Environmental Policy (NEP), 1992, (8) The Industrial Act, 1931 & 1992, (9) Bangladesh Environmental Conservation Act (ECA), 1995, (10) Bangladesh Environmental Conservation Rule (ECR), 1997, (11) The 1997 Environmental Impact Assessment Guidelines for Industries, (12) Environment Court Act, 2000, and a few other minor Acts.

Sections 268, 269, 278, 284, 290 and 291 of Penal Code relate poorly to the environment in general. These sections deal with not more than a public nuisance in respect of annoyance, negligence about spread of life threatening infectious disease, causing damage to climate which is injurious to health, negligence about poisonous substances and continuation of public nuisance even after direction not to do so. Punishment that a court can award for the offences under these sections is up to six months imprisonment or a fine of Taka 200 or both. The amount for punishment is insufficient to present a person from making public nuisance. Again, the legal proceeding moves so slow that one may have to wait even years to see a judgement. This law has thus lost effectiveness for the reason that one cannot endure hazardous nuisance for year’s to see only a judgement that may end with conviction or acquittal. This law as such can make little impact on the management of environment.

Section 133 of CrPC empowers a magistrate of jurisdiction to pass conditional order for removal of nuisance’. The law interprets the term nuisance’ as an inconvenience materially interfering with the ordinary comfort physically of human existence. Under this section a magistrate of the first class can order to remove under condition the keeping of any goods or merchandise, which is injurious to the health or physical comfort of the community. The procedure of taking measure under this section is lengthy. First of all information in respect of nuisance’ has to be submitted before the magistrate by a police officer or otherwise. He may then go for enquiry and make conditional order on satisfaction. For objection to do so the incumbent has to appear before the magistrate for personal hearing and argument. CrPC thus does not provide immediate remedial measure to get rid of urgent nature of action towards removal of nuisance’ substances from the public places.

Moreover the Penal Code and CrPC are about 142 years and 104 years old respectively. The nature of environmental elements and substances for human discomfort has undergone massive changes over the 142 years. The present situation of environmental hazards that include solid waste, air pollution, polythene menace, industrial effluents, toxic materials, radioactive substances etc did not exist during the period of formulation of these laws in the 1860s and 1890s. That is why a different approach of legal instruments is necessary to address the modern environmental hazards.

The first Act in the then East Pakistan that addressed environmental problems was the Factory Act, 1965. That was a local type of Act in the sense that it dealt with health risks of the workers within mills and factories only. Third chapter of the Act deals with cleanliness, disposal of wastes and polluted liquids, air circulation and temperature control, control of dust, sand and smoke, artificial ventilation, heavy traffic, arrangement of sufficient light, drinking water, toilet, latrines etc. within the mills and factories. It was followed by the Water Pollution Control Ordinance, 1970.

The Environment Pollution Control Ordinance, 1977 gave a little bit details of the environment related problems in Bangladesh. Concern about pollution of air, surface and ground water was found in the Ordinance. It also addressed soil by discharge of liquid, gaseous, solid, radioactive, or other substances. That was perhaps the first time that the provision for the control, prevention, and abatement of pollution of environment in Bangladesh got a place in a legal framework. Unfortunately no evidence could be made available on enforcement or implementation of any provision of the Ordinance. This Ordinance has been repealed on emergence of the ECA, 1995.

The DCC Ordinance, 1983, does not deal much with total environmental problems of the city. the DCC takes the responsibility of removal, collection and disposal of refuse, management of lavatories, control on dyeing and tanning skins, brick kilns, medical practice on infectious disease and direction towards house scavenging, cleaning drainage, cleansing of streets etc. The Environmental Policy, 1992, intends to restrict disposal of municipal, industrial or agricultural wastes in rivers, ponds and drains. It also discourages open truck transportation and daytime collection of waste.

These legal foundations give a general guideline about the duties or responsibilities of the DCC. Depositing or throwing any solid waste in contravention of the Ordinance is punishable up to Tk. 1000. The DCC does not have its own magistrates. It has to borrow them from the Government to try the offences occurred in contravention of the Ordinance. The Magistrate Court established at the DCC suffers setbacks from proper equipment, logistics and supports of efficient manpower. The Court does not have police to commit arrest of the offenders as well as forwarding any of them to the custody for defying an order of the Court. It does not then function effectively as it should.

Motor Vehicle Ordinance, 1983 is another important legal instrument in respect of controlling vehicular emission, which is termed the number one culprit for air pollution. Section 150 of the Ordinance provides that the driver of motor vehicle that emits smoke, and may cause harm to public health may be fined up to Tk. 500.00. A police officer of or above the rank of Sub-Inspector or Inspector of Motor Vehicles may detain such vehicle for his satisfaction whether it is or is not harmful for public health. Section 152 provides that driving vehicle without fitness certificate from Bangladesh Road Transport Authority is liable to imprisonment ranging from one year to two years or to fine ranging from Tk.1000 to Tk. 5000 or both. The legal strength of the Ordinance is all right, but enforcement level is very weak due to institutional lacking. The prosecution system of bringing any violator into justice needs be more effective. The violators do not care much about the consequences as they can escape punishment. The law enforcing agencies do not have ready information to pursue the recurrence of offence by the owners or drivers of the motor vehicles. That is why the trend of violation is on the increase.

The Brick Burning (Control) Act, 1989, has been amended in 1992. This Act provides requirement of license from the appropriate authority and restriction on brick burning with fuel wood. Fuel wood was the main source of brick kilns. The purpose of this Act is to save forest resources from the threat to extreme reduction by burning them in the kilns. Coal and roots of bamboo and date trees are permissible under the Act to burn in the kilns. Burning these substitutes of fuel wood in the kilns does not help control air pollution but produces noxious gases in the air. The kilns in this country are of conventional types and suffer from thermal inefficiencies. They produce emission of carbondioxide, particulate matters, and volatile organic compounds responsible for pollution of air.

The National Environment Policy or NEP, 1992 is an important set of documents that deals with overall environmental problems and gives guidelines for sound environment in the country. Creation of the Directorate of Environment on the recommendation of NEP, 1992, is an important step towards management of environmental problems. The government has also made few laws, rules, and appointed committees in relation to sustain ideal environment in the country. The recommendations of NEP, 1992 that need further attention are: identification of the causes of pollution and degradation of environment, regulation of activities to control environment, ensure environmentally sound development, use of national resources in environmentally sound mechanism, association with international environmental initiatives and taking advantage of their successes.

The ECA, 1995 is an important legal instrument for control and conservation of environment. This Act underwent a few amendments in 2000. Sections 7, 15 and 17 of the Act have been substituted, while one new Section 15A has been inserted in the Act in 2000. The important amendment towards punishment of violators of any provision of the Act that has been made is "imprisonment up to 5 years or fine to Tk. one lakh or both" has been substituted by "imprisonment up to 10 years of fine to Tk. 10 lakh or both". Moreover the offence under the Act has been made cognisable. The amount of punishment under this law may sound high. But in the context of gravity of offence, the punishment may not be considered so high. Punishment for violation of environmental law in many countries is much higher than that in Bangladesh. Portuguese law, for example, provides fine up to $22.165 million dollars and imprisonment up to 3 years for violation of certain environmental law.

The ECA, 1995 is an important legal instrument for control and conservation of environment. This Act underwent a few amendments in 2000. Sections 7, 15 and 17 of the Act have been substituted, while one new Section 15A has been inserted in the Act in 2000. The important amendment towards punishment of violators of any provision of the Act that has been made is "imprisonment up to 5 years or fine to Tk. one lakh or both" has been substituted by "imprisonment up to 10 years of fine to Tk. 10 lakh or both". Moreover the offence under the Act has been made cognisable. The amount of punishment under this law may sound high. But in the context of gravity of offence, the punishment may not be considered so high. Punishment for violation of environmental law in many countries is much higher than that in Bangladesh. Portuguese law, for example, provides fine up to $22.165 million dollars and imprisonment up to 3 years for violation of certain environmental law.

Even after second amendment the ECA, 1995, deserves criticisms for further improvement. Sub-section (1) of section 15 of the Act can be interpreted as follows. If any person violates any direction of the Act or Rule or fails to perform any duty what he should have performed under any regulation or order or instruction of the Act or Rule shall be awarded punishment to imprisonment for a term up to 10 years or fine of Tk. 10 lakh or both.

It seems a general kind of awarding punishment to a person or a group of persons in the sense that noncooperation with a designated officer by an individual cannot be equalised with an offence of discharging toxic or radioactive substances in the river or in the open space or establishing a factory in contravention of environmental law. Sub-section (2) of Section 10 of ECA, 1995, provides that any person responsible for industrial activities or processing or using dangerous substances shall be bound to help and cooperate with any person empowered by the authority. Violator of this provision may be convicted under ECA, 1995, up to 10 years imprisonment or fine of Tk. 10 lakh or both. On the other hand prohibition to any government servant from discharging his lawful duties, not aiding any help willfully to a government servant, for which he is bound to help, and violation of any properly served order of government servant are offences under Sections 186, 187 and 188 of the Penal Code and provide punishment ranging from one month imprisonment or fine of Tk. 200 or both up to six months imprisonment or fine of Tk. 1000 or both. Again, Section 150 of Motor Vehicle Ordinance, 1983 provides punishment upto Tk. 500 for emitting black smokes from a vehicle. For similar offence under Section 6 of ECA, 1995, a person can be awarded punishment upto 10 years imprisonment or fine of Tk. 10 lakh or both. Here is a big difference in the provision of punishment among the existing laws for committing similar types of offence. This kind of inconsistency creates confusion and contradiction at the time of trial in the court and it goes in favour of the accused.

Offences should have specific definition and interpretation. For example Clause (g) of sub-section (2) of Section 4 provides that Director General (DG) or any person authorised by the DG shall advise the government to ban the manufacturing process, production and materials that are responsible for pollution of environment. In such a case if the government becomes the violator of advice of the DG then legal action cannot easily be taken against any particular person. Furthermore, all activities under sub-section (2) of Section 4 are not similar in terms of importance and gravity. Punishment, therefore, for each violation under this sub-section should not be uniform. ECA, 1995, therefore, should have provision of specific punishment for specific offence and never inconsistent with the existing laws.

Government has conducted a formal drive against the hazard of polythene from 01 January 2002. Appreciably government could earn support of people of all corners. Polythene is one of the many types of solid wastes that are generated in the cities. Empty plastic bottles and other polyethylene products are similarly non-biodegradable substances. Again industrial effluents, hospital and pathological wastes that carry toxic and radioactive substances could come into consideration suggesting specific measure.

Source: The Independent, Dhaka, April 6 & 7, 2002

Home Page

 

Top

[Micro Credit] [Science & Technology] [Development Strategy] 
[Globalization] [Ecology] [Migrant Worker's Issues]
[Democracy] [Health Issues ]  [Culture & Heritage] 
[Human Rights & Law]  [Women's Rights and Issues]  [Education]
[Poverty]  [Land Management] [Water Management] 
[Economy]  [Personalities]  [Environment]   
[Civil Society]  [Minorities & Ethnicity] [Diplomacy]