Review of the Current Legal and Institutional Mechanisms in Relation to the Environment Pollution Control in Bangladesh

TABLE OF CONTENTS

PREFACE AND ACKNOWLEDGEMENT

ABBREVIATIONS AND JARGONS

ABSTRACT

CHAPTER ONE INTRODUCTION
1.1 ENVIRONMENT AND POLLUTION: TRACING THE LEGAL LINKAGES

CHAPTER TWO REGULARATORY FRAMEWORK ADDRESSING ENVIRONMENTAL POLLUTION IN BANGLADESH
2.1 DEFINITION OF POLLUTION UNDER THE BANGLADESH ENVIRONMENT CONSERVATION ACT 1995
2.2 DEFINITION OF POLLUTION IN A GLOBAL CONTEXT
2.3 POLLUTION CONTROL IN BANGLADESH: A CONSTITUTIONAL APPROACH
2A. LAW ADDRESSING POLLUTION AS TO AIR
1. THE SMOKE NUISNACE ACT 1905
2. THE BRICK BURNING (CONTROL) ACT 1989
3. THE SMOKING AND TOBACCO PRODUCTS USAGE (CONTROL) ACT 2005
2B. LAW ADDRESSING POLLUTION AS TO WATER AND FISHERY
1. THE PORTS ACT 1908
2. THE TERRIRORIAL WATERS AND MARITIME ZONES ACT 1974
3. THE TERRIRORIAL WATERS AND MARITIME ZONES RULES 1977
4. THE COAST GUARD ACT 1994
5. THE PROTECTION AND CONSERVATION OF FISH ACT 1950
6. THE PROTECTION AND CONSERVATION OF FISH RULES 1985
7. THE MARINE FISHERIES ORDINANCE 1983
2C. LAW ADDRESSING POLLUTION AS TO FOOD AND AGRICULTURE
1. THE BANGLADESH PURE FOOD ORDINANCE 1959
2. THE PESTICIEDS ORDINANCE 1971
2D. LAW ADDRESSING POLLUTION AS TO TRANSPORTATION
1. THE MOTOR VEHICLES ORDINANCE 1983
2. THE MOTOR VEHICLES RULES 1940
2E. LAW ADDRESSING POLLUTION AS TO TOXIC AND HAZARDOUS SUBSTANCES WASTE
1. THE BANGLADESH PETROLEUM ACT 1974

CHAPTER THREE THE BANGLADESH ENVIROMENT CONSERVATION ACT 1995 AND RULES 1997
3.1 AN OVERVIEW
3.2 BANNING POLYTHENE: EFFICENCY OF THE BEC ACT 1995
3.3 POLLUTION RELATED IMPORTANT PROVISIONS OF BEC ACT 1995
I) THE NOISE POLLUTION (CONTROL) RULES 2006
II) COMBATING MEDICAL WASTE: A NEW EMERGING POLLUTION
III) TOXICTANNERIES: THEHEALTH REPURCUSSIONS OF BANGLADEH’S HAZARIBAGH LEATHER

CHAPTER FOUR POLLUTION CONTROL AND ROLE OF INSTITUTIONS
4.1 EXTRACTING THE JURISPRUDENCE: ANALYSES OF LEGISLATURE‟S STANCE
4.2 THE EXECUTIVE
4.2.1 NATIONAL ENVIORMENTAL POLICY 1992
4.2.2 MINSTRY OF ENVIRONMENT AND FORESTS
4.3 THE JUDICIARY
4.4 NON-GOVERNMENTAL ORGANISATIONS (NGOs) AND SOCIO-ENVIRONMENT MOVEMENT
4.5 COPORATE SOCIAL RESPONSIBILITY (CSR) AND POLLITION CONTROL

CHAPTER FIVE FINDINGS AND RECOMMENDATIONS
5.1 MAJOR BARRIERS IN PROTECTION OF ENVIRONMENT FROM POLLUTION
5.2 GIVEN THE SITUATION AS IT SATNDS NOW, THE FOLLOWING WAY OUT CAN BE AVAILED OF REGARDING POLLUTION CONTROL
5.3 CONCLUSION

PREFACE AND ACKNOWLEDGEMENT

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.

In developing this assignment titled Review of the Current Legal and Institutional Mechanisms in relation to the Environment Pollution Control in Bangladesh, I have consulted and received assistance from many persons and organizations. The writings that have been placed in this compilation consist of a number of legal instruments of home and abroad, court decisions and commentaries of different authors and commentators, which are published in various books and journals. I am immensely grateful to a number of people who have helped me collect the unreported or untracked information regarding environmental pollution in Bangladesh. I would specially like to thank Dr. Md. Nazmuzzaman Bhuian, Associate Professor, Department of Law, University of Dhaka, and course mentor of the Environmental Law of Bangladesh for his cordial help in many ways.

I am also grateful to Mr. Zamal Uddin and Mr. Sayed Hossain, the officials of the Law Department Seminar. I owe special debt to Mr. Bidhan Biswas Paul of Bangladesh Poribesh Andolon (BAPA).

Before I conclude, I thank a few of the organisations such as the Department of Environment (DoE), Bangladesh Environmental Lawyers’ Association (BELA), Poribesh Andolon (POBA), and Bangladesh Institute of Legal and International Affairs (BILIA) Library - in the premise of which I untiringly searched and found huge materials and so on.

Mahmudul Hasan

LL.B (Honours), Session: 2011-12

Department of Law, University of Dhaka

ABBREVIATIONS AND JARGONS

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ABSTRACT

Increasing industrialization and lack of waste treatment is leading to major environmental pollution problem in many parts of Bangladesh, impacting on both aquatic and non-aquatic ecosystems and the population who depend on them for their livelihood activities. Environment, the message of which has a strong correlation with the subtle human existence, are a burning issue around the world. Every country desires to have a better environment for which all possible efforts are being adopted to make the people aware and educated about the environment, to control unwise use of resources, to keep environment pollution free. Legal framework is also being made wherever necessary, with an appropriate augmentation of individual country efforts, supported and appreciated by international communities. Now relevant aspects of environment policies are being considered as a sectoral component of all major international treaties. Thus, now a day, enforcing congenial environment condition free from pollution has become a pre-condition for all development activities.

Key Words: Environment, pollution, conservation, development, policy, Corporate Social Responsibility (CSR), polythene, tannery, medical waste, Bangladesh

CHAPTER ONE INTRODUCTION

The existence of life on earth is threatened due amongst other things to climate change as a result of continuous environment pollution. Over the past several decades, growing public awareness of threats to the environment, informed by warnings of scientists, has led to demands that law protect the natural surroundings on which human well-being depends. Under growing pressure from national and international public opinion, governments began to demonstrate concern over the general state of the environment during the 1960s and introduced legislation to combat environmental pollution and to bring sustainable development into reality.¹ Simultaneously, they established special administrative organs, ministries or environmental agencies, to preserve more effectively the quality of life of their citizens.²

Developments in international environmental law are reflecting a growing consensus to accord priority to resolving environmental problems particularly pollution. Environmental problems stem from two main categories of human activities: ³

a) Use of resources at unsustainable levels, and
b) Contamination of the environment through pollution and waste at levels beyond the capacity of the environment to absorb them or render them harmless.

Therefore, environmental laws often call for restricting or banning hazardous products, processes or activities,⁴ which present a substantial risk of environmental harm.

In addition to being affected by global environmental problems, Bangladesh is a victim of local and regional problems. Bangladesh faces many environmental problems both naturally occurring and those caused by humans.⁵ They are: deforestation, deteriorating water quality, natural disasters, land degradation, salinity, unplanned urbanization, discharge of untreated sewage and industrial wastes, and so on.

1.1 ENVIRONMENT AND POLLUTION: TRACING THE LEGAL LINKAGES

The advent of modern state with system of statutes witnessed a blend of “revenue” and “resources” oriented regime with some significant prohibit of acts dangerous to human environment and health and the ecology. Hence, we find environmental provisions in different statute books. Therefore, the provisions having direct, indirect and causal link with environment and ecology have been in place as regulatory regime in the forms of policies, legislations, institutions and traditions. Pollution, of both air and water are huge problems for many urban environments in Bangladesh.⁶ Again with new development in the energy sector and rapid urbanization and industrialization, it is surely a demand of time and pragmatic step to enact reforms at this point of time if not earlier. Roughly, the environmental laws can be categorized as follows:⁷

This paper, however, would try to review the topic of environmental pollution and its current regulatory legal mechanisms, identify loopholes therein, and to suggest possible recommendations. This review is the legal one, so it lacks scientific aspect.

CHAPTER TWO REGULARATORY FRAMEWORK ADDRESSING ENVIRONMENTAL POLLUTION IN BANGLADESH

Today, an investigation into laws of Bangladesh, having relevance to environment, leads to the existing identification of about 200 laws and by-laws covering substantive and procedural rules.⁸ But the existence of these laws has neither been able to sustain the environment nor any of its components. Unregulated human behavior has depleted and deteriorated the conditions that have recently become a major concern and an area of immediate action for mankind. Causing environmental pollution or contamination is one of the rude aspects of unregulated human behavior.

2.1 DEFINITION OF POLLUTION UNDER THE BANGLADESH ENVIRONMENT CONSERVATION ACT 1995

The Bangladesh Environment Conservation Act 1995 is the only piece of legislation where the definition of “pollution”⁹ has been showcased under sub-section (b) of section 2. It runs as follows:

“ “pollution” means such contamination, or other alteration of the physical, chemical or biological properties of air, water or soil, including change in temperature, taste, odour or any other characteristics of these or such discharge of any liquid, gaseous, solid, radio-active or other substances into air, water or soil or any elements of the environment as well or is likely to create nuisance or render such air, water or soil harmful, injurious, detrimental or disagreeable to public health, safety or welfare or to domestic, commercial, industrial, agricultural, recreational or other benefit uses, or to ecosystems including livestock, wild animals, birds, fish, plants or other forms of life.”¹⁰

The debate about properly defining the term “pollution” in the legal arena is a perennial debate and ubiquitous in all jurisdictions. As a whole, the debate is not as complex but definitely multi-dimensional as we often attempt to think over it. Until recently, however, standard legal definition of it we can locate in the above stated Act of 1995.

2.2 DEFINITION OF POLLUTION IN A GLOBAL CONTEXT

The definition of „pollution‟, as adopted by the International Law Association in the Committee on Legal Aspects of the Conservation of the Environment in the Montreal Conference in April 1982, are as follows:

“Pollution means any introduction by man, directly or indirectly, of substance or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, harm living resources, eco-systems and material property and impair amenities or interfere with other legitimate uses of environment. Trans-frontier pollution means pollution of which the physical origin in wholly or in part situated or located within the territory of one state and the deleterious effects of which flow to another state or states.”¹¹

The definition of pollution as given above has referred to human health.¹² From the legal point of views, pollution, as defined in the American Jurisprudence¹³ is “wrongful contamination of the atmosphere, or of water, or of soil, to the material injury of the right of an individual.”

2.3 POLLUTION CONTROL IN BANGLADESH: A CONSTITUTIONAL APPROACH

Before reviewing the statues, it is important to look at the constitutional provisions. The Constitution of the People’s Republic of Bangladesh has few provisions that can be connected with the instance issue. It declares that the State shall regard improvement of public health as among its primary duties.¹⁴ By the very recent amendment of the Constitution in 2011, a new article has been inserted which talks of the responsibility of the State to conserve and develop the environment for present and future citizens and also to make provisions for the conservation and safety of natural resources, bio- diversity, forest and wildlife.¹⁵

Mandating the primary duty of improvement of citizen’s health collectively as enshrined in our Constitution can be attained by taking various steps, the pollution control and management is an integral part of it and if not handled properly would lead to further deterioration of public health. Effective steps in pollution control and management must be taken in improving public health. The holistic interpretation of the Constitution mandates the responsibility of the State on the one hand and of the people on the other to protect the environment from pollution.

Bangladesh has a well-developed set of environmental policies, Acts and Rules that deal with environmental pollution of water, soil and air. Now, we would like to discuss in brief several past legal instruments relating to pollution for the better understanding of whole picture of environmental pollution and legislation to combat this threat.

The first environmental activities in Bangladesh were taken soon after the Stockholm Conference on Human Environment in 1972. As a follow up action to the Stockholm Conference, the Government of Bangladesh funded, under the aegis of the Department of Public Health Engineering and with a staff level of 27 and after promulgating the Water Pollution Control Ordinance in 1973¹⁶, a project primarily aimed at water pollution control. In subsequent years, various events took place as described below.

In 1977, Environment Pollution Control Board¹⁷ with 16 members headed by a Member of the Planning Commission and Environment Pollution Control Cell headed by a Director with staff complement of 26 was established. This was followed in 1977 by the establishment of the Environment Pollution Control Project, in 1985 by the establishment of the Department Pollution Control and finally, in 1989 by the restructured and renamed the Department of Environment the activities of which are overseen by a Director General.¹⁸

Now we would like to present and dissect the current legal regime those are relating to the environmental contamination in many ways.

2A. LAW ADDRESSING POLLUTION AS TO AIR

1. THE SMOKE NUISNACE ACT 1905

Object and purpose: An Act to amend the laws relating to the abetment of nuisances arising from the smoke of furnaces or fire-places in certain areas in Bangladesh.

Smoke Nuisance Commission: Section 4(1) provides that the government shall constitute a commission for supervising and controlling the working of this Act. Moreover, section 5(1) provides that the government also may appoint a Chief Inspector of Smoke-nuisances and so many Assistant Inspectors as it may think fit.

Prohibition as to certain activities: Section 6 provides the prohibition as to, within any specified area,-

a) the erection or use of any specified class of brick tile or lime-kilns, or, clamps for making bricks, or
b) the erection or use of furnaces to be used for the calcining or smelting of ores or minerals, or for the casting, puddling or rolling of iron or other metals, for the conversion of pig-iron into wrought-iron, or
c) the manufacture of coke, in ovens, or with special appliances, or
d) the making of coke without ovens or special appliances.

Section 6(2) provides a small penalty for violation of the above-mentioned prohibitions. The highest fine be imposed is Tk. 250, which may turn into double for the subsequent violation and conviction.

Offences and punishments: Section 8(1) provides for the penalty when smoke is emitted to a greater extent than is permitted by rules on a first conviction, to Tk. 50, on a second conviction to Tk. 100, and on any subsequent conviction to Tk. 200.

Section 10 further states about the rule making power. Such rule may regulate the transaction of business by the Commission (rule 10(1) (a)), the emission of smoke from the furnaces of vessels (rule 10(1)(f)), a scale for the purpose of determining the density of smoke (rule 10(1)(c)), time during which smoke of such density may be emitted from a furnace (rule 10(1)(e)).

2. THE BRICK BURNING (CONTROL) ACT 1989

Especially the huge number of brick-kilns and the indiscriminate felling of trees for use as firewood there of affecting the environment a lot, these are because the laws are not in action. Parliament of Bangladesh passed the Brick Burning Control Act in 1989 which provides that a brick field can be set up on 1.5 acres of land but many brickfield owners use 3 to 6 acres of land, in some cases more than that, for setting up brickfield. Certainly, the land should be fallow land but in most cases, it is not. It is also mandatory to install a minimum 50 feet high chimney with filter in every kiln for emission of smoke. But the owners are violating the law using lower chimneys and sending vaporous waste, dust, carbon dioxide, carbon monoxide, sulfur dioxide, florin etc in the immediate atmosphere. According to Brick Burning Control Ordinance of 1992 and 2001 (revised), the owners are prohibited from using all kinds of firewood in kilns and that a law breaker will be fined Tk. 50,000 or sentenced to six months imprisonment.

3. THE SMOKING AND TOBACCO PRODUCTS USAGE (CONTROL) ACT 2005

Object and purpose: The Act¹⁹ aims to make a law relating to the control of production, usage, sale-purchase and advertisement of the smoking and tobacco products.

Prohibition on smoking in public place and public transport: Section 4(1) provides that no person shall be accepted to do smoking in public place and public transport. The definitions of “public place” and “public transport” have been given in section 2. It provides that “public place” refers to educational institution; governmental, semi- governmental and autonomous office; library; lift; hospital and clinic; railway station; bus terminal; ferry; cinema hall; covert exhibition center; theater hall; market place; public toilet; children amusement park managed by government or non-government. On the other hand, “public transport” means motor vehicle; bus; rail vehicle; tram; ship; launch; mechanical all public vehicles; air-plane. Both the definitions have kept the scope of declaring any other place or vehicle as the “public place” or “public transport” respectively by the government in the official gazette notification.

Punishment: Under section 4(2), if any person smokes in “public place” or “public transport” violating section 4(1), s/he shall be punished with fine up to Tk. 50.

Exception to prohibition: Section 7 provides that any owner, caretaker/controller or manager of any “public place” or “public transport” may specify or determine any place for doing smoking

2B. LAW ADDRESSING POLLUTION AS TO WATER AND FISHERY

1. THE PORTS ACT 1908

Object and purpose: This Act aims to consolidate the enactments relating to Ports and Port-charges.

Power to make rules: Section 6(1) provides that the government may, make such rules, consistent with this Act, as it thinks necessary for any of the following purposes, namely:-

[]

(ee) for regulating the manner in which oil or water mixed with oil shall be discharged in any such port and for the disposal of the same;

[…...]

(p) for the prevention of danger arising to the public health by the introduction and the spread of any infectious or contagious disease from vessels arriving at, or being in, any such port, and for the prevention of the conveyance of infection or contagion by means of any vessel sailing from any such port.

Health Officer: Section 17 provides for the appointment of the health-officer.

[...]

¹ Mohammad Ali, “Status of Environmental Legislation in Bangladesh”, The Chittagong University Journal of Law, Vol. 2: 1997, p. 59.

² For example, one of the first internationally collaborative efforts was the Stockholm Conference on Human Environment in 1972. These efforts were given a new impetus in 1992 with the Earth Summit in Rio de Janeiro, Brazil.

³ Dinah Shelton and Alexandre Kiss, Judicial Handbook on Environmental Law, United Nations for Environment Programme (UNEP), (2005), p. 3.

⁴ See e.g., Convention and Montreal Protocol on the Ozone Layer (March 22, 1985, September 16, 1987); Convention on the Prevention of Marine Pollution by Dumping of Wastes (December 29, 1972); Antarctic Treaty (December 1, 1959) and Environmental Protocol (Oct. 4, 1991); Sofia Protocol to the 1979 Convention on Long-Range Trans boundary Air Pollution concerning the Control of Emissions of Nitrogen Oxides (October 31, 1988)

⁵ The major environmental problems in Bangladesh can be traced to the problems of over-population and poverty.

⁶ It was estimated by an Air Quality Management Project (AQMP) that poor air quality in Dhaka was contributing to 15,000 premature deaths, as well as millions of cases of pulmonary, respiratory and neurological illnesses.

⁷ This is not the absolute one but for the time being it can be considered.

⁸ Dr. Mohiuddin Farooque and Dr. Saleemul Huq, “Regulatory Framework and Some Examples of Environmental Contamination in Bangladesh”, In S. Rizwana Hasan (ed.), Selected Writings of Mohiuddin Farooque: Environmental Order & The Security of Survival, (BELA), 2004, p. 20.

⁹ Here, we are referring to the pollution of both physical and human environment.

¹⁰ This is an unofficial English version of the section since the bare Act is in Bangla. The original text of the Act was published in the Bangladesh Gazette, extra-ordinary issue of 16-2-1995 and amended up to 2010. See Department of Environment and Bangladesh Environment Management Project, Poribesh Ain Sankalan (A Compilation of Environmental Laws), Dhaka, p.155 (2002).

¹¹ Cited from Dr. R.G. Chatiurvedi and Dr. M.M. Chatiurvedi, Law on Protection of Environment and Prevention of Pollution (Central and States), The Law Book Company (P) Ltd., India, p. 64 (1996).

¹² The world Health Organisation (WHO), which is the International body on Health, has defined health as “a state of perfect physical, mental and social well-being and not merely the absence of disease and infirmity.”

¹³ 61, Pollution Control, 2nd edition, p. 817

¹⁴ Article 18(1), The Constitution of the people’s Republic of Bangladesh

¹⁵ Article 18A, The Constitution of the People’s Republic of Bangladesh

¹⁶ East Pakistan Ordinance No. V of 1970, It was repealed by the Environment Pollution Control Ordinance 1977. It required that any persons or commercial or industrial undertaking: adopt measures for the prevention, control and abatement of existing or potential pollution of any waters, including construction, modification, extension or alteration of disposal systems; provide information to the Water Pollution Control Board regarding wastes, sewerage or treatment works; and permit any officer to inspect and search land and buildings. The Ordinance provided the term „pollution‟ which means “such contamination, or other alteration of the physical, chemical or biological properties of any waters, including change in temperature, taste, colour, turbidity, or odour of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substances into any waters as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses or to livestock, wild animals, birds, fish or other aquatic life”.

¹⁷ Established by the Environmental Pollution Control Ordinance, 1977 (Ordinance No. XIII of 1977 and repealed by Bangladesh Environment Conservation Act 1995). This Ordinance expanded the definition of “pollution” from that specifically relating to waters to “air, water or soil”. It also further included “contamination or other alteration … likely to, create a nuisance or render such air, waters or soil harmful to … bonafide uses and to plants and forms of life other than those previously specified.”

¹⁸ See for details, available at: http://www.doe-bd.org/overview.html (Last visited on 14.11.2012).

¹⁹ Repealing the East Bengal Prohibition of Smoking in Show Houses Act 1952 and the Tobacco Manufactured Products Marketing (Control) Act 1988 by section 18