Law interview
The Constitution should have provisions on environment
Syeda Rizwana Hasan is a big name in the green movement of Bangladesh. Goldman Prize Winner 2009, Rizwana, also the Chief Executive of Bangladesh Environmental Lawyers Association (BELA), is devoted to pro-people lawyering to establish environmental justice in Bangladesh. The efforts of BELA through public interest litigation have truly sensitized the concept of 'environmental justice' in the country that now has special courts to deal with environmental wrongs. The credit can largely be attributed to Syeda Rizwana Hasan. 'Law and Our Rights' faces this 'Green Crusader' with some pertinent questions on environment.
Law Desk (LD): How right to environment can be taken as a facet of human rights? The Constitution of Bangladesh has not expressly guaranteed this right as fundamental. Comment.
Syeda Rizwana Hasan (SRH): Environment cannot be separated from the domain of human rights. Rather environmental rights are seen as the third generation of human rights. Denial of sound environment shall mean less agricultural protection. Pollution of the water-bodies will mean less fish for the fishermen, no water for drinking, bathing and irrigation. Barren and degraded forestland shall mean depriving the forest dwellers of their livelihood. For all these reasons, I strongly believe that our Constitution should have provisions on environment so that it brings a change in the governance psyche. A total of 105 countries of the world that have either amended their constitution or in their new constitution have incorporated provision on environment. While in India, it has been described as a duty, I think we should incorporate provisions describing environment both as a duty and a right. Some may argue that a poor country like Bangladesh should not recognize environment as a right. Let me tell you that poverty should not bar us from recognizing peoples' right to sound environment. Like many developed countries, most of the African constitutions have recognized environment as right. The fact that 80 percent of our people earn their livelihood from nature justifies it all the more that environment is recognized in our constitution as right.
LD: Do you think that Bangladesh has a comprehensive legal regime on environment? Comment on the efficacy and role of the Environment Courts in Bangladesh.
SRH: The legal regime that we have, if implemented, can deal with most of the environmental problems we are confronted with. For a large part, I do not blame absence of law as the reason behind the environmental anarchies; it is rather the poor or no enforcement of law that is responsible for the havoc. At the moment the environmental courts are not effective due to a number of factors. First, the jurisdiction of the court is not clear. Second, since the court is at the lower judiciary, for a final result of a case the litigant may have to cross at least four tiers. This will discourage ordinary litigants to approach the system. Third, the court is primarily meant for the department of environment (DoE). Ordinary citizens can file cases only on receiving a report from the Director, DoE and for that one has to wait for 60 days. This frustrates the litigants as well the purpose of the law, which is to ensure “speedy trial”. Again, the DoE is reluctant to file cases and as the jurisdiction of the court is limited only to offences under the Environment Conservation Act, 1995 a large number of environmental issues cannot be tried by the existing courts. Hence to avoid complications, litigants would prefer higher judiciary. Fifth, although required, not all the divisions have environmental courts. This forces the litigants to move to the higher court that has wider jurisdiction and mandate to grant relief. Apart from these legal reasons, there are other socio-economic reasons for which the sufferers of environmental pollution who are mostly poor are not enthusiastic about filing cases against their all powerful opponents. In most cases people are not aware of their legal rights and do not automatically place confidence in the system to deliver!
LD: Bangladesh is the worst victim of climate change. In different international forums, Prime Minister Sheikh Hasina has called for establishing the Multi-Donor Trust Fund at the earliest and quick disbursement of the fund among the least developed countries (LDCs) to enable them to face the impact of climate change. Is it that the victim countries have a right to receive compensation in the form of climate justice from the developed world?
SRH: The developed countries have not officially recognized the concept of climate justice. They are not considering payment of compensation, rather the way the negotiations take place, they at times appear to be more bribing and breaking the unity rather than following any clear guidelines. Raising the capacity issues of the developing world and for the sake of “transparency”, the developed world wants to involve IFIs to manage the climate funds to be disbursed. I think this is ridiculous as the IFIs only work in countries that give them impunity. How can they be transparent? The fund that is being committed is far from satisfactory. I am not very concerned about money, what concerns me more is the lack of definite and legally binding commitment to cap the pollution. Even the best adaptation may not give you climate justice and hence what we should be asking for in addition to money is mitigation. To make the claims for damages well-founded, vulnerable countries like Bangladesh should constantly assess the damage and create world opinion in favour of our needs and demands. The greatest challenge for us is to link events with “climate change”. One thing that worries me the most is that anything and everything has now become a climate issue, yet all successive disasters that we had in the last few years are not being branded with climate change! How do we then find events that relate to climate change and how do we assess the loss? I think this is where we need to put in efforts so that hypes do not undermine realities. The money should of course come from the developed world, but that does not mean that if they don't move, we die. Since the changes will happen in phases, let us take the preparations at the domestic level. If we still do not have adequate cyclone shelters but more cars than roads can deal with, it is our problem.
Wherever the money comes from, I believe that the local government agencies should be trained and given the funds for their proper utilization as per local priority.
LD: The Higher Court in Bangladesh seems to be very proactive in upholding environment rights, the directives in the ship breaking yards, reviving the Buriganga, replacement of tannery from Dhaka city etc being the recent examples. A concept of Public Interest Environmental Litigation (PIEL) has developed and moulded over the recent years. How do you view this phenomenon?
SRH: Amongst many frustrations, judicial activism is the only ray of hope. However, I do not separate the issue from the general debate on the independence of judiciary. I strongly feel that there is need and scope for more judicial activism. It hurts to see that the verdicts of the judiciary go unheeded and that wrong politics linked to vested quarters take over. The degree of lawlessness that we have, only judgments do not take you there. We should think of mechanisms that will foster implementation of its verdicts. There are cases where the government is less enthusiastic is implementing court orders and as the wise saying goes “you can't solve the problem with the same set of mind that created the problem”! Look at how the Indian judiciary started setting up committees and commissions with reputed civil society leaders to help the courts with proper analysis and also to monitor implementation of the court orders. While the current level of activism gets us the right orders, we need to work to advance it further so as to ensure implementation.
LD: BELA has long eminence of 18 years to fight for environmental justice in Bangladesh. The responsibility that Dr. Mohiuddin Farooque shouldered back in1992 has taken the present shape in the able hands of you. How would you evaluate the role of BELA in this journey?
SRH: BELA has tried its level best to popularize the concept of environmental justice in the country. It is a pleasure to see that no discussion on environment ends without referring to environmental laws. Effective or not, the country has an environmental court and people are keen to see that it works. When we started, we had six staff and one office. Now we have 60 staff and offices in all divisional headquarters. When we started, we used to get clues from newspapers. Now people come to us with their complaints. When people are usually scared of law and the lawyers, I think their confidence in BELA and their expectations from us can be treated as exceptional. Thanks to the founder and his followers- BELA shall never compromise with its stance.
LD: Thank you very much
SRH: Thank you too, and thanks to The Daily Star for its continuous support to the works of BELA.
The interview is taken by Law Desk via e-mail.
