Environmental Constitutionalism in Bangladesh

Shah Maruf

LL.M. Candidate, University of Dhaka

    

On 26 July 2022, the United Nations General Assembly (UNGA) made a historic move. In its 76^th session, the UNGA recognized ‘the right to a clean, healthy and sustainable environment as a human right’. Though the UNGA resolutions are not legally binding upon the member States of the United Nations (UN), David Richard Boyd, the UN Special Rapporteur on Human Rights and the Environment, believes that such resolutions have a positive impact on the States, inter alia, in incorporating provisions regarding the protection of environmental rights in their constitutions.

Until 1972, there was no concept of constitutional right like ‘right to the environment’ and the Stockholm Declaration 1972 recognized the right to a healthy environment for the first time in the world. [1] Since then environmental constitutionalism, [2] which may be characterized as the protection of environment through the mandate, spirit and principles of the constitution, has boomed across the globe – which is sometimes claimed to have been inspired by the Stockholm Declaration (Boyd, UBC Press, 17).  As of 2012, [3] about 140 States incorporated the provisions of environmental protection in their national constitutions in one way or other. [4] Over the last five decades, no other human rights got constitutional recognition such faster than the right to the environment. [5]

The right to environment can broadly be categorized into two compartments: substantive right to  a healthy environment, and procedural environmental rights. Substantive environmental right requires the environment to be of certain quality, mostly qualified by the words ‘healthy’, ‘clean’ or ‘ecologically balanced’ (Boyd, PhD Thesis, 92, 97). Such rights are found in more than 80 constitutions (Boyd, PhD Thesis, 92). Procedural environmental law has three fundamental pillars: access to information, right to participate in the decision-making process and access to justice. [6] More than 28 countries have such procedural rights in their constitutions (Boyd, Ph.D. Thesis, 105).

The Constitution of the People's Republic of Bangladesh (‘Bangladesh Constitution’ or ‘Constitution’) has no explicit reference to environmental rights: neither substantive nor procedural. However, as will be seen, the Supreme Court of Bangladesh has recognized multiple times that such rights exist within the constitutional framework. In this background, the present article will try to analyze the State of environmental constitutionalism in Bangladesh: how the environmental rights are protected within the constitutional framework in the absence of any explicit right in this regard.

The Constitution of Bangladesh was adopted on 4 November 1972, and unfortunately, it did not make any reference to the natural environment then – neither as a citizen’s right to the environment nor as the State’s or citizen’s duty to protect it. After almost 40 years of adoption, a new Article 18A was added in the Constitution for the first time through the Constitution (Fifteenth Amendment) Act, 2011. [7] It is quite clear that until 2011 the Constitution had been amended 14 times, but it was not felt necessary to incorporate a provision dealing with environmental protection. [8] As of now, Article 18A is the only provision that deals with environmental protection, and there is no second Article in the Constitution that even uses the word ‘environment’.

Article 18A reads as follows: The State shall endeavor to protect and improve the environment and to preserve and safeguard the natural    resources, bio-diversity, wetlands, forests and wildlife for the present and future citizens.

It should be noted here that the provisions in Part II of the Constitution, Fundamental Principles of State Policy, merely create an obligation on the States to take certain actions, here in Article 18A ‘endeavor to protect and improve the environment’. It does not create any right in favor of the citizens and is not judicially enforceable. [9] Thus, even after the insertion of Article 18A, an enforceable right to the environment remains out of the constitutional context.

Nevertheless, environmental constitutionalism has been in practice in Bangladesh since the mid-1990s. Despite the absence of any enforceable right, the lawyers approached the Supreme Court of Bangladesh (constitutional Court) in different environmental concerns, and a wide variety of environmental rights got the constitutional status through judicial activism hence upholding the principles of environmental constitutionalism. The following discussion will focus on how this has been done.

The States have taken different approaches to constitutionalizing environmental protection. However, three approaches are prevalent among the constitutions: first, incorporating right to (healthy) environment as an explicit right; second, stretching the State’s obligation to protect the environment to cover right to environment; and third, interpreting some other constitutionally guaranteed fundamental human rights, eg right to life in such a way that includes within their ambit right to environment. [10] The first approach is absent in Bangladesh, and the second was unavailable until 2011. Thus, the third approach was, as will be seen, resorted to by the judiciary to establish the ‘right to environment’ in the Bangladeshi constitutional framework of ‘right to life’. Bangladesh, however, is not the only country adopting such a measure. The constitutional courts of at least 20 countries – including India, Pakistan, Sri Lanka and Malaysia, which do not have an explicit right to environment – have interpreted the right to life or health to encompass right to a healthy environment. [11]

In Bangladesh, the first attempt to enforce the right to the environment as a constitutional right was made in 1994. In that year, Dr Mohiuddin Farooque, the founder of an environmental NGO named Bangladesh Environmental Lawyers Association (BELA), filed a Writ Petition (WP) against the government of Bangladesh and some other authorities as they failed ‘to mitigate air and noise pollution caused by motor vehicles’ in Dhaka city. [12] However, the damage to the natural environment, here air and noise pollution, itself was not a ground for filing WP that can be filed only if any fundamental right guaranteed under Part III of the Constitution is violated. [13] The petitioner therefore put an innovative argument. He argued that the right to life guaranteed under Articles 31 and 32 includes ‘right to a safe and healthy environment’, which the Court accepted (Razzaque). Thus, for the first time in Bangladesh history the right to the environment was recognized as a constitutional right, though under the shade of ‘right to life’.

A more critical and comprehensive case in this regard is Flood Action Plan (FAP-20) Case. [15] In 1994 the petitioner filed a WP against the Government of Bangladesh challenging the activities of FAP-20 undertaken by the government in Tangail District on the ground that the plan would cause ‘environmental hazard, damage and ecological imbalance’ by displacing the people of the area, damaging the soil, fish species, and other flora and fauna, giving rise to the drainage problem, jeopardizing human-health and exacerbating sanitation and drinking-water facilities. The petitioner's argument was that as it affected ‘the life, property, livelihood, vocation and environmental security of more than a million people in the district,’ it would affect the right to life enshrined under Articles 31 and 32 of the Constitution.

However, as the WP was brought pro bono publico, the High Court Division (HCD) summarily rejected the petition, holding that the petitioner had no locus standi. On appeal, the Appellate Division (AD) dealt with the matters in detail and remanded the case to the HCD. The judgment of the AD has significant bearings on the development of environmental constitutionalism jurisprudence in Bangladesh.

First, the AD interpreted the right to life under Articles 31 and 32 to include the right to a healthy environment. Though the contours of right  to life were discussed in this case not for the first time, [16], it is perhaps the first case concerned with the right to life from an environmental perspective. The observation of the Court was that:

‘Articles 31 and 32 of our Constitution protect right to life as a fundamental right. It encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life can hardly be enjoyed. Any act or omission contrary thereto will be violative of the said right to life.’

The FAP-20 case had another important implication in Bangladeshi constitutional jurisprudence. The case ‘for the first time’ posed an issue before the Supreme Court of Bangladesh as to whether a body of social workers can file a WP to uphold the interest of the public, and finally settled the long-debated issue of locus standi in filing WPs. Though the issue of locus standi has been dealt with previously in several cases, including Kazi Mukhlesur Rahman case, [17] and Sangbad Patra Parishad case, [18] the FAP-20 case is the case that dealt with the issue most comprehensively so far. The Court came out of the traditional restrictive notion of locus standi – ‘judicial remedy is available only to a person who is personally aggrieved’ – and held that:

‘[A] person approaching the court for redress of a public wrong or public injury has sufficient interest (not a personal interest) in the proceedings and is acting bonafide and not for his personal gain or private profits, without any political motivation or other oblique consideration has locus standi to move the High Court Division under Article 102 of the Constitution of Bangladesh.’

The liberalization of locus standi opened the horizon of public interest litigation (PIL), especially in environmental issues which is called PIEL (public interest environmental litigation). After that decision, PIL was established ‘as a tool for achieving constitutionalism through litigation’, [19] too for environmental constitutionalism. This is evidenced by the fact that numerous PIEL was filed before the HCD after the decision, and each time the Court reaffirmed the right to environment as an element of constitutional right to life. In Dr Mohiuddin Farooque v Bangladesh and others, [20] for example, the petitioner asked for ‘appropriate relief’ regarding the failure of the government to control pollution by different industrial bodies across the country. The Court opined that right to life enshrined in Article 32 ‘guarantee[s] for a pollution-free environment’, and as such Article 32 would be inevitably applied by the  Court when the lives of the people living near those industries are in danger. As to the meaning of ‘life’ the Court observed that:

The expression ‘life’ enshrined in Article 32 includes everything which is necessary to make it meaningful and a 'life' worth living, such as, among others maintenance of health is of utmost importance and preservation of environment and hygienic condition are of paramount importance for such maintenance of health, lack of which may put the ‘life’ of the citizen at naught.

The Court further held that: 

[The term ‘life’] ‘means a qualitative life among others, free from environmental hazards. This is also one of the basic rights of a human being to live in a healthy atmosphere and constitutional remedy under Article 102 will be available if this basic human right is threatened due to violation of any of the provisions of the relevant laws’.

Finally, the Court directed the respondents not to initiate any new industries except prior arrangements for mitigating environmental pollution.

There were hundreds, if not thousands, of cases filed based on such notion of constitutional environmental rights, where the petitioners got redress for environmental damage, such as industrial pollution, [21] noise and air pollution, [22] water (arsenic) pollution, [23] river encroachment, [24] conversion of open space and parks, [25] extraction of stones from river, [26] etc. For example, BELA alone has filed 350 PIELs since the decision of FAP-20 case in 1997 on wide range of environmental issues, eg industrial pollution, river pollution and encroachment, destruction of ecology and biodiversity, protection of (wet)land etc. These PIELs have, inter alia, facilitated access to justice and implementation of environmental laws, upheld the principles of environmental laws like principles of sustainable development and polluter pays principle, and helped create new institutions like National River Protection Committee.

 The above discussion suggests that though there is no independent fundamental right to healthy environment in the Constitution of Bangladesh, environmental constitutionalism was upheld and evolved in Bangladesh by the hand of judiciary since mid 1990s. The apex court’s decisions in different environmental cases and its recognition of right to a healthy and decent environment within the sphere of constitution will help the State of environmental constitutionalism get stronger in Bangladesh.

From the 1990s, environmental constitutionalism has been spreading rapidly across the globe primarily for its wide compass: through human rights approach, it encompasses nearly all the things ‘affecting human condition’ including right to life, right to health, education, housing etc; and through environmental rights approach, it protects the overall environment including water, soil, air etc. [27] In addition to its ‘powerful normative and symbolic value’, [28] constitutional protection of environmental rights has practical utilities too. Examining the situation of 92 States where such right is constitutionally recognized, Boyd shows that such protection may, amongst others, strengthen environmental legislations and improve their implementation, increase accountability, enhance public participation, accelerate environmental justice, and thus improve overall environmental performance (Boyd, PhD Thesis). Thus, ‘constitutional environmental rights can be the last best hope for protecting both basic human rights and biodiversity.’ [29] 

References:

[1] David R Boyd, The Environmental Right Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press 2012) (hereinafter ‘Boyd, UBC Press’) 13.

[2] See for details, James R May and Erin Daly, Global Judicial Handbook on Environmental Constitutionalism (3rd edn, UN Environment 2019); Erin Daly, ‘Constitutional Protection for Environmental Rights: The Benefits of Environmental Process’ (2012) 17 (2) International Journal of Peace Studies 71–80; Erin Daly and James R May, ‘Comparative Environmental Constitutionalism’

(2015) 6 (1) Jindal Global Law Review 9–30.

[3] The number has been increased to 160 as of 2020. See, Rachel Pepper and Harry Hobbs, ‘The Environment Is All Rights: Human Rights, Constitutional Rights and Environmental Rights’ (2020) 44 (2) Melbourne University Law Review 634, 648. However, for consistency the information is taken from Boyd’s PhD Thesis.

[4] David Richard Boyd, ‘The Environmental Rights Revolution: Constitutions, Human Rights, and the Environment’ (PhD Thesis, University of British Columbia 2010) (hereinafter ‘Boyd, PhD Thesis’) ii.

[5] David S Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99 California Law Review 1163 cited in David R Boyd, ‘The Implicit Constitutional Right to Live in a Healthy Environment’ (2011) 20 (2) Review of European Community and International Environmental Law 172.

[6] David R Boyd, ‘The Status of Constitutional Protection for the Environment in Other Nations’ (Paper #4, David Suzuki Foundation) 16; Erin Daly, ‘Constitutional Protection for Environmental Rights: The Benefits of Environmental Process’ (2012) 17 (2) International Journal of Peace Studies 71, 72.

[7] Act XIV of 2011, s 12.

[8] Until 1990, about 33 states including Bangladesh amended their constitutions without inserting any environmental protection clause. See, Boyd, PhD Thesis, 86.

[9] Constitution of Bangladesh, art 8(2).

[10] Lael K Weis, ‘Environmental Constitutionalism: Aspiration or Transformation? (2018) 16 (3) I•CON 836, 852.

[11] David R Boyd, ‘The Implicit Constitutional Right to Live in a Healthy Environment’ (2011) 20 (2) Review of European Community and International Environmental Law 171-2.

[12] Jona Razzaque, ‘Human Rights and the Environment: The National Experience in South Asia and Africa’ (Background Paper No. 4, Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment, 14-16 January 2002, Geneva, Switzerland).

[13] Constitution of Bangladesh, art 44.

[14] Dr Mohiuddin Farooque v Bangladesh and others (1997) 49 DLR (AD) 1 (hereinafter ‘FAP-20 case’).

[15] See, Dr Mohiuddin Farooque v Bangladesh and others (1998) 50 DLR 84 [71].

[16] 26 DLR (SC) 44.

[17] 43 DLR (AD) 126.

[18] Ridwanul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in Sunil Khilnani, Vikram Raghavan and Arun K Thiruvengadam (eds), Comparative Constitutionalism in South Asia (Oxford University Press 2013) 325.

[19] 53 DLR 125.

[20] (2003) 55 DLR 69; (2002) 22 BLD 534.

[21] 22 BLD 345.

[22] Rabia Bhuiyan, MP v Ministry of Local Government and Rural Development and Others (2007) 27 BLD (AD) 261.

[23] (2009)14 BLC 759.

[24] M Saleem Ullah, Advocate and others v Bangladesh and others (2003) 55 DLR 1.

[25] Bangladesh Environmental Lawyers Association (BELA) v Government of Bangladesh (2010) 30 BLD 185.

[26] Erin Daly and James R May, ‘Comparative Environmental Constitutionalism’ (2015) 6 (1) Jindal Global Law Review 9, 10.

[27] Boyd, UBC Press, 8-9; Rachel Pepper and Harry Hobbs, ‘The Environment Is All Rights: Human Rights, Constitutional Rights and Environmental Rights’ (2020) 44 (2) Melbourne University Law Review 634, 661.

[28] Edward O Wilson, ‘The Current State of Bio Diversity’ in Edward O Wilson and Frances M Peter (eds), Biodiversity (1998) cited in Daly and May, ‘Comparative Environmental Constitutionalism’ (n 41) 22.