Public Interest Environmental Litigation in Bangladesh: Effectiveness, Abuse and Solutions

Public interest litigation (PIL) means a legal action, initiated by a person motivated by public interest, for the enforcement of public interest or fundamental rights, of public at large or a class of the society, especially the poor and disadvantaged class of the society. When a PIL is concerned with an environmental issue i.e. how an environmental issue is going to affect the public, it becomes Public interest environmental litigation (PIEL). In Bangladesh, PIL is filed in the form of writ petition under Article 102 of the Constitution. PIL got its threshold in Bangladesh in the case of Dr. Mohiuddin Farooque vs Bangladesh, 49 (1997) DLR (AD) 438, popularly known as the FAP-20 case, in which the judiciary extended the Locus Standi under Art. 102 of the constitution, in favour of persons not technically aggrieved, by giving such liberal interpretation that ‘aggrieved party’  under Article 102 of the constitution should include a party who, although is not personally affected, has sufficient interest in the matter in dispute.[1] Since then a lot of Public interest environmental litigations have been filed in the High Court Division in many of which effective remedies have been granted.

Effectiveness of PIEL:

The advantage of PIEL is that, in PIEL, instead of ordinary remedies prescribed in environmental legislations, many innovative remedies can be and have been granted by the HCD e.g. injunction, declaration, environmental damages, various unique directions. The achievements of PIL in environment protection in Bangladesh include recognition of ‘Right to Environment’ as a part of ‘Constitutional Right to Life’, directive judgements against industrial pollution, vehicular pollution, directive judgments with regard to payment of environmental compensation in development projects, river encroachment, unlawful filling of flood plain,  for closure and relocation of tanneries from Hazaribag and so on. Thus gradually PIL has been recognized as the best way to get effective remedy in environmental issues.

Another effectiveness of PIEL is that it contributes in development of domestic environmental jurisprudence by giving the court opportunity to examine various critical points of law, to examine the constitutional provisions and to apply principles of international environmental law. For example, as has been previously mentioned, in the FAP-20 case, the court recognized ‘Right to Healthy Environment’ as a part of the Constitutional Right to Life.[2]    

“Although in most writ petitions on environment, the judiciary may not respond the way an activist would like,” [3]such unsuccessful writ petitions also have some effectiveness. They create environmental awareness and thus increases environment- friendly behaviour among public. As has been stated in ‘Country report of Bangladesh’, Farooque M & Hasan SR : Asia Pacific Journal of Environmental Law, (1996, vol-1) that “Public Interest Environmental Litigation generates awareness, educates the actors and creates values in the society even if the case is lost in a court of law on technical grounds. Such efforts also bring changes in the behaviour, however limited, which may become significant and unavoidable norm eventually.”

“The impact of Public Interest Environmental Litigation may not always be visible but may also be the initiation of a process which in the long run would provide tangible dividends.” (Justice  Mustafa Kamal, Bangladesh Constitution : Trends & issues, Kamini Kumar Dutta Law Lecture, Dhaka University( (1998)[4] For example, in an unsuccessful writ petition, the court may give an important observation which can influence the court i.e. which can be used by the court as Ratio Decidendi in deciding a subsequent similar case in favour of the  environmental activist.

 Abuse of PIEL: A Recent Trend

In recent years, a trend of abuse and overuse of PIEL has emerged. A lot of PIELs are being filed which are not technically maintainable or are concerned with petty issue. This is what happened in the case of Syeda Rizwana Hasan Vs Bangladesh & Ors.[5] Where writ petition was filed on behalf of the wealthy and privileged section of the society. The petition was rejected on the ground non-maintainability. It was held that the litigant does not come within the wider interpretation of the term ‘aggrieved person’ because such wider interpretation only allows PIL on behalf of the disadvantaged section of the society who are, for reasons of poverty and ignorance, cannot access to justice on their own. In the aforementioned case, the only fault of Rajuk (The Respondent) was it violated the master plan of Uttara Model Town and built residential plots in a place which was to remain as free space according to the master plan. The court considered it a petty issue to file a PIL on the ground that 1. A master plan is not mandatory to be followed 2. The court found that no grievance i.e. dispute was caused by such violation. Reason behind such abuse and overuse of PIEL is over-enthusiasm.

Many times, people, who are actually motivated by personal interests e.g. fame-seeking interest, monetary interest, personal grievance or political interest, files PIEL posing as environmentally concerned individuals. Such PILs are called frivolous PILs.

Negative Impacts of Abuse of PIEL:

  1.  Frivolous PIELs waste the valuable time, money and energy of the court as well as of the Government.
  2. Such abuse decreases the credibility and effectiveness of PIEL because when a judge is irritated by dealing with several frivolous PIELs, he may do not believe a subsequent genuine petition and reject it.
  3. When a large portion of all the PIELs are mere abuse of process, it decreases the opportunity before the court to examine critical questions of law and thus develop a sound domestic environmental jurisprudence.
  4. Frivolous PIELs against government irritates the executive and deteriorates the relation between executive and judiciary.

Suggestions for Preventing Abuse of PIEL:

  1. The court should not allow any application for PIEL, before it is fully satisfied, after careful scrutiny “that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking.”(Ashok Kumar Pandey vs The State Of West Bengal on 18 November, 2003)[6]
  2. In India, in order to prevent frivolous PIL, The Supreme Court has laid down a 10-point guideline which is to be followed by the courts in entertaining PIL. [7]In Bangladesh, the Appellate Division can also lay down similar guidelines for the High Court Division.

Bibliography:

 Cases:

Syeda Rizwana Hasan vs. Bangladesh & Ors 9 ADC (2012) 816

Online journals

Razzaque J, ‘Access to Environmental Justice Role of the Judiciary in Bangladesh’  Bangladesh Journal of Law, Vol. 4, Nos. 1 & 2, pp. 1-25, 2000 <www.biliabd.org/article%20law/Vol-04/Jona%20Razzaque.pdf>  last accessed on 30 October  2017

Websites & blogs

‘Public Interest Litigation in Bangladesh’ <www.assignmentpoint.com/arts/law/public-interest-litigation-bangladesh.html> last accessed on 30 October 2017

‘Public Interest Litigation’ < www.lawteacher.net/free-law-essays/litigation-law/public-interest-litigation.php> last accessed on 30 October

Newspaper Articles

Mahapatra D, ‘SC lays down 10-point guideline to prevent frivolous PILs’ The Times of India (21an 2010) <https://timesofindia.indiatimes.com/india/SC-lays-down-10-point-guideline-to-prevent-frivolous-PILs/articleshow/5482078.cms>

 [1] Jona Razzaque ‘Access to Environmental Justice Role of the Judiciary in Bangladesh’  Bangladesh Journal of Law, Vol. 4, Nos. 1 & 2, pp. 1-25, 2000 <www.biliabd.org/article%20law/Vol-04/Jona%20Razzaque.pdf>  last accessed on 30 October  2017

[2]  ibid

[3] ‘Public Interest Litigation in Bangladesh’ <www.assignmentpoint.com/arts/law/public-interest-litigation-bangladesh.html>  last accessed on 30 October 2017

[4] ibid

[5] 9 ADC (2012) 816

[6]  ‘Public Interest Litigation’ < www.lawteacher.net/free-law-essays/litigation-law/public-interest-litigation.php> last accessed on 30 October

[7] Dhananjay Mahapatra, ‘SC lays down 10-point guideline to prevent frivolous PILs’ The Times of India (21an 2010) <https://timesofindia.indiatimes.com/india/SC-lays-down-10-point-guideline-to-prevent-frivolous-PILs/articleshow/5482078.cms>

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Fahim Mahmud

Fahim Mahmud is a fourth year law student at University of Dhaka. A Musim, a Bengali, but most importantly he prefers the identity of a Bangladeshi. He likes to think himself as a concerned citizen of the country and believes that the best way to serve the country is to do your job honestly and properly.

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