In response to various international conventions, treaties and protocols Bangladesh has developed new environmental legal regime including environmental governance institutions. Our legal status to protect environment is a little bit better than other countries of the globe. We have constitutionally mandate to protect the nature, rivers, wetlands and natural resources. In our Constitution, Article 18A clearly states that “the State shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, bio-diversity, wetlands, forests and wild life for the present and future citizens.”
Bangladesh is among the few countries that have a separate court on environment. From 2000, after the enactment of the Environment Court Act, specialized environmental court system has been introduced in the legal system of Bangladesh. In pursuance of the Environment Court Act, 2000, three environment courts with Joint District Judges were set up in Dhaka, Chittagong and Sylhet division, to deal with environmental offences only. An Environment Appellate Court was established at Dhaka for the whole Bangladesh. The Act of 2000 also empowered Magistrates of the first class or Metropolitan Magistrates to deal with environmental offences punishable with up to two years imprisonment or taka 10,000 as fine or both.
In 2010, a fresh Environment Court Act namely Environment Court Act, 2010 (ECA 2010) has been passed. However, the ECA 2000 was so extensively replaced by the Environment Court Act, 2010 that it got a new look with an effective adjudication system for protecting, conserving and preserving the environment and promoting the environmental justice. Besides the environment courts, special magistrate courts are given jurisdiction to try environmental offences. This is the first time; the provision of Special Magistrate was introduced in our legislation for the protection of environment. Section 5 and 6 deal with the power and function for the protection of environment. There are some unique and innovative provisions to control and conserve the environment effectively through Special Magistracy.
Section 5(2) states that Special Magistrate will be appointed from the first class Judicial Magistrate or Metropolitan Magistrate who will be deputed from the Judiciary. This type of court is very exclusive one which can pursue the duty in all time in every place of the country with ample power to run out mobile courts as well as order to file regular cases in the Police Stations and Courts. The Act of 2010 also provides for the establishment of one or more Special Magistrate Court/s in each District to deal with offences punishable with less than 5 (five) years imprisonment or 5 (five) lac taka as fine or both.
For operation of legal mandate, Law & Justice Division, Ministry of Law, Justice & Parliamentary Affairs had taken initiative to conduct mobile court under the Environment Court Act 2000 vide a memo dated 19 June, 2008 as per approval of the Supreme Court of Bangladesh. Later on under the Environment Court Act, 2010, the Law & Justice Division with the consultation of the Supreme Court of Bangladesh issued notification vide memo no Bichar-1/4P-1/2008-133 dated 22 March, 2011 regarding appointment of Special Magistrate under section 5 of the ECA 2010. All senior judicial magistrates and all metropolitan magistrates had been appointed as special magistrates under section 5 of the ECA 2010 to work under the Environment Conservation Act of 1995 and ECA 2010. By virtue of this notification, in recent, some districts i.e Bandarban, Rangamati, Pautuakhali, Rajshahi have been working actively and conducting mobile courts in their jurisdiction. In Naraiyonganj, Chief Judicial Magistrate (CJM) appointed Senior Judicial Magistrate Kowsar Alam as Special Magistrate for Naraiyonganj under the ECA 2010 vide an office order dated 26 January, 2021.
Section 6 of the ECA 2010 deals with the jurisdiction of the Special Magistrate Court. Special Magistrate can take any kind of action mandated by Department of Environment (DoE). The authority of DoE or any inspector can file any case in the Special Magistrate Court as well as in Police Station. The special magistrate can order to protect, conserve, promote environment. The special magistrate can lay out authority to prevent anyone from contaminating, polluting and damaging environment. Violating the orders of the special magistrate is an offence and punishment is up to 5 years imprisonment or 5 lac take as per section 8 of the ECA 2010. Special Magistrate can arrest any person committing offence under Acts of 1995 and 2010 and search any place to find out the offences as per section 11.
The Act of 2010 outsets an excellent provision on conducting mobile court led by Special Magistrate under the ECA 2010 of section 12(11). At the time of mobile court, the special magistrate can receive any complain from the inspector of DoE or any empowered officer of DoE, order to file any case in the court and take any other actions necessary for the protection of environment. Any government official and office as well as any person are bound to assist the special magistrate under section 13 of the ECA 2010.
According to section 9 and 10 of the ECA 2010, Special Magistrate can try any case within 180 days from the framing of charge. If special magistrate fails to conclude trial within the stipulated time of section 10(2), the magistrate can submit a written explanation to the Appeal Court of Environment as per section 10(3) and the special magistrate court then proceeds the case within next 90 days.
Special Magistrate is a special scheme of this legislation for promotion of our environment through legal tool. Ironically it is unfortunate that there is no initiative to encourage and extend the capacity of special magistracy by DoE though 11 years have been elapsed from enforcement of Act. DoE has now 21 regional offices but filing of cases is a few in the three environment courts and almost filing of cases is zero in the special magistrate courts by the DoE. A report was published in the daily Independent that when the city grapples with environmental offences, the Dhaka Environment Court is sitting idle for lack of cases thanks to its limited and confusing jurisdiction and lack of cooperation from the Department of Environment (DoE), said experts. Only 19 cases were filed with the court over the last four years since 2012 while it did not find any environment-related case in the last one year [the Independent, June 26, 2016].
DoE is now imposing only fine under the administrative authority though there is available environmental justice under the regular courts i.e Environment Court, Special Magistrate Court and Civil Court as well. For such reason the offences towards environment is out of control because the punishment is poor and tolerable. Moreover the wrong doers can do same offence getting benefit of the said offences. Only fine can’t prevent the offenders doing such inhuman acts to bio-diversity. Not only DoE but also mobile courts (led by executive magistrate) allow most polluters to go unpunished, except charging simple fines as the inspectors have a nexus with the offenders. So, the DoE is more interested in conducting mobile courts to realise fine instead of bringing the polluters to court for ensuring due punishment [the Prothom Alo, 25 June 2016].
The National River Conservation Commission (NRCC) has published a series of list of 49,162 criminals of river grabbers across the country in 2019. For sustaining our environment and ecological balance, special magistrate is an effective supplement to justice. Special Magistrate can be posted in the DoE and other regional offices, even in the divisional cities and other important areas to maintain, control, promote and sustain the environment and bio-diversity. The Judiciary is now very active to promote and protect environment. Our higher judiciary always keeps vigilance to conserve and protect the environment and bio-diversity of the country.
The adoption of the Environment Court Act, 2010 is undoubtedly a milestone in the journey of environmental protection in Bangladesh. In Bangladesh, protection and improvement of environment is intimately related with the protection of people’s lives and livelihoods. To ensure eco-friendly sustainable development instead of indiscriminate development for the present and future generations we need people oriented Environment Courts with exclusive jurisdiction on all environmental matters. For achieving such great goals, special magistrate court can be a panacea to get an effective result across the country.
Writer is a member of Bangladesh Judicial Service and Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.