Implementation of
Environmental Justice:
Through Dispute Settlement
Preeti Kana Sikder
Assistant Professor
Department of Law & Justice
Jahangirnagar University

Pillars of Environmental Rule of Law
Access to
information
Access to
public
participation
Access to
justice in
environment
al matters

The third “pillar” of access rights – access to
justice – as articulated in Principle 10 of the
Rio Declaration and refined in the Bali
Guidelines is now seen as the primary driver of
new ECTs.

UNEP guide for Policy Makers
Environmental Courts and Tribunals

Elizabeth Mrema,
Director, Law Division at the UN Environment
“The Rule of Law lies at the core of a just
administration of justice and is a
prerequisite of peaceful societies, in
which environmental obligations, equality
before the law and the adherence to the
principles of fairness and accountability
are respected by all. Law coupled with
strong institutions is essential for
societies to respond to environmental
pressures and crucial for the
international community to address the
environmental challenges of our time.”

Justice Antonio Herman Benjamin,
High Court of Brazil
“Environmental conflicts
require quick action or
response, which is
incompatible with the slow
pace of the court system that,
due to its bureaucracy and
technical rituals, eventually
becomes an obstacle to
effective protection of the
environment and to economic
progress.”

On-going “Explosion of ECTs”
The “explosion” in the number of ECTs since 2000 is
astounding. Today, there are over 1,200 ECTs in 44 countries at
the national or state/provincial level, with some 20 additional
countries discussing or planning ECTs.
This continuing explosion is being driven by the development of
new international and national environmental laws and
principles, by recognition of the linkage between human rights
and environmental protection, by the threat of climate change,
and by public dissatisfaction with the existing general judicial
forums.

Improving the environmental rule of law, access to justice
and environmental dispute resolution is essential for
achieving the UN’s 2030 Agenda for Sustainable
Development and the Sustainable Development Goals
(SDGs), particularly SDG Goal 16 – “to provide access to
justice for all and build effective, accountable and inclusive
institutions at all levels.”
Specialized Environmental Courts and Tribunals (ECTs)
are now widely viewed as a successful way to accomplish
this important goal.

An ECT is different from general courts because it
specializes in environmental cases and has
adjudicators trained in environmental law.
The decision-making process often incorporates both
lawyers and scientific/technical experts, and relies on
alternative dispute resolution, open standing,
streamlined case review and sophisticated use of
information technology.

“The judiciary has a role to play in the
interpretation, explanation and
enforcement of laws and regulations. …
Increasingly, it is being recognized
that a court with special expertise in
environmental matters is best placed to
play this role in the achievement of
ecologically sustainable development.”
Justice Brian Preston,
Chief Judge of the Land
and Environment Court of
the State of New South
Wales, Australia

Debate on Pros and Cons of ECTs

Why ECTs are needed (Pro-argument)
Expertise: Expert decision makers make better decisions.
Efficiency: Greater efficiency, including quicker decisions.
Visibility: Shows visible government support for the environment and
sustainability and provides an easily identifiable forum for the public.
Cost: Can lower expenses for litigants and the courts.
Uniformity: Greater uniformity in decisions, so litigants know what to expect..
Standing: Can adopt rules that expand standing, for individuals, environmental
related NGOs and public interest litigation (PIL). (China has recently adopted
legislation expanding standing for environment NGOs and public interest
litigators in their ECs, as have other nations.)
Commitment: Effectuates government’s commitment to the environment and
sustainability.

Why ECTs are needed
Accountability: Greater government accountability to the public.
Prioritization: Ability to prioritize and move on cases that are urgent.
Creativity: Can adopt rules allowing for innovative and flexible procedures
and remedies.
Alternative Dispute Resolution: Broadens ability to use ADR and other
non-adversarial dispute resolving processes, including restorative justice,
to provide win-win enforceable agreements.
Issue Integration: Can deal in a more integrated way with multiple laws,
particularly if the ECT has civil, criminal and administrative jurisdiction.
Remedy Integration: Can combine civil, criminal and administrative
remedies and enforcement under one roof.

Why ECTs are needed
Public Participation: Involvement of the public can be increased, reinforcing
one of the critical access pillars to justice.
Public Confidence: The public’s confidence in the government and the
judicial system can be increased, so that members of society are more
likely to bring concerns to the system.
Problem Solving: Judges can look beyond narrow application of rule of law
(“right-wrong”) and craft creative new solutions.
Judicial Activism: Can apply new international principles of environmental
law and natural justice as well as national/local law.
Investigation: May be authorized to undertake investigations of
environmental problems on its own initiative without a case being brought.

Specialization does not, by itself, guarantee
any of these potential positive characteristics
will automatically occur. However, ECT
architects can include special design features
to ensure some or all of these features –
features which are not typical of and may not
be possible in the traditional judicial
institutions.

Opponents of specialization in general and
ECTs in particular raise “con” arguments
Competing Needs: There are other areas of the law that arguably need
specialization as much or more.
Marginalization: Takes environmental cases out of the mainstream and
may mean less attention, less qualified judges, less budget, and limited
opportunities for judicial advancement.
Fragmentation: This fragments the legal system and isolates important
environmental issues and judges.
Internal Reform: It’s better to reform within the existing general court
system.

Opponents of specialization in general and
ECTs in particular raise “con” arguments
Insufficient Caseload: Not enough environmental cases to
justify an ECT.
Cost: The cost of creating a new institution isn’t worth it.
Confusion: Potential public confusion about what is defined as
an environmental case and determining in which of several
forums to lodge a complaint.
What’s “Environmental”?: Difficulty in defining what is an
“environmental” case and how to handle cases with both
environmental and non-environmental issues.

Opponents of specialization in general and
ECTs in particular raise “con” arguments
Capture: Special interests will be able to more easily influence and
control a small ECT outside the general court system.
Generalist Judges: Some feel generalist judges with a broad
perspective and experience will focus on the forest not the
individual trees and decide cases better than “specialists.”
Judicial Bias: Specialist judges may be advocates and biased in
favor of environmental protection, not balanced and
comprehensive in their analysis.
Judicial Activism: An ECT will encourage the judges to overstep
their judicial authority and act like legislators and policy makers.

Opponents of specialization in general and
ECTs in particular raise “con” arguments
Training Gap: Not enough judges or lawyers exist with the
needed expertise.
Judicial Careers: The narrow focus will be a “dead end” for
a judge’s career.
Inferior” Courts: Risk of creating a court with lower status
than the general courts and “lesser” judges with
consequently less power

Function of ECTs: ECTs can be designed to:
promote the environmental rule of law at the national level and international
levels and ensure equal access to justice (SDG target 16.3)
develop more effective, accountable and transparent institutions at all levels
(SDG target 16.6)
ensure responsive, inclusive, participatory and representative decision-
making at all levels (SDG target 16.7)
ensure public access to information and protect fundamental freedoms, in
accordance with national legislation and international agreements (SDG
target 16.10) and
especially promote and enforce non-discriminatory laws and policies for
sustainable development (SDG target 16.b).

Type of Forums
 ECTs can be either courts (judicial branch) or
tribunals (executive or ministerial branch), both
reflecting the social, economic and environmental
characteristics of the host nation.
 ECTs’ existence, jurisdiction, powers, budget,
accountability mechanisms, etc., may be
defined by (1) legislation, (2) rules of their parent
branch of government, or (3) the ECTs’
own rules.

Environmental Courts
1. OPERATIONALLY INDEPENDENT EC (separate, fully or largely
independent environmental court)
2. DECISIONALLY INDEPENDENT EC (within a general court, but
separate and free to make its own rules, procedures, and decisions)
3. MIX OF LAW-TRAINED AND SCIENCE-TRAINED JUDGES (may
be either model 1 or 2 above with the 2 types of judges sharing
decision making)
4. GENERAL COURT “DESIGNATED” JUDGES (assigned
environmental cases in addition to their regular docket, often without
necessary interest, expertise or training)
5. ENVIRONMENTAL LAW-TRAINED JUDGES (who may or may not
therefore be assigned environmental law cases from time to time).

Environmental Tribunals
1. OPERATIONALLY INDEPENDENT ET (separate, fully or
largely independent environmental tribunal)
2. DECISIONALLY INDEPENDENT ET (under another
agency’s supervision, but not the one whose decisions
they review)
3. CAPTIVE ET (within the control of the agency whose
decisions they review)

Environmental Tribunals
1. Ombudsman
2. Prosecutor
3. Commissions

Environment
Court Act, 2010
Analysis and Recommendations

Objectives of Environment Court Act, 2010
Speed up justice against environmental offences
Setting up, jurisdiction and working module of of Environmental Courts
(sections 4, 7, 14)
Setting up, jurisdiction and working module of Special Magistrate Courts
(sections 5, 6, 9, 10)
Investigation into Environmental Offences (section 12)
Appeal (sections 19 and 20)
Settlement of Disputes: ADR (section 18)
Who files the cases/complaints? (DG/ authorized officer –Section 6 (1);
written report of Inspectors-sections 6 (3); 7 (4); individuals )

Special Magistrate Court
Section 5: One in each district; Metropolitan
Magistrate/1st class Judicial Magistrate
Sections 6 and 9: Directly in the SMC or Filing of
GD in Police Station (1); offences that can be
penalized with 5 years imprisonment or fine of taka
5 lakh or both
Section 10: Process for trial (180+90 days)

Environment Court Act, 2010
• Section 4 - Establishment of Environment Courts
 One in each district
 One Joint District Judge
 Trial of offences under the ECA and any other law specified by the government for
the purposes of this law
 Trial of cases referred to it by the SMC
 (presently 3 such courts functioning in Dhaka, Chittagong and Sylhet)
 Compensation suits to be filed directly at the ECs
• Section 7 - Jurisdiction of Environment Court - impose penalty; confiscate equipment,
transport or article; pass order or decree for compensation; issue direction not to do the act
or to make omission; issue direction to take preventive or remedial measures
• Section 14 - Powers and functions of Environment Court
• Provisions of CrPC (section 14 (1)) and CPC (section 14 (6))
• Total days: 180+ 90 days

Ambit of Power (Definition : Section 2)
BECA, 1995
BECR, 1997
ECA, 2010

The Real Face?

Environment Case No. 4 of 2003
• Sirajul Islam and Md. Nazrul violated Sec 6A of
BECA by the way of storing and selling banned
polythene bags

Environment Court Act, 2000
Sec: 7 Procedure for investigation
 (1) An offence under an environmental law shall ordinarily be investigated by an
Inspector, but the Director General may, by a general or special order, authorize
any other officer subordinate to him to investigate any particular kind of offences
or a specified offence.
 (2) The said Inspector or other officer, hereinafter referred to as the investigating
officer, shall on the basis of a written complaint or other information, initiate
proceedings under this section after obtaining approval of the officer authorized in
this behalf by the Director General.

Sec: 7
Procedure for investigation
 (3) The investigating officer shall, before initiating a formal investigation of an
offence, inquire into and collect information about the offence, prepare a
preliminary report thereon and present it to a higher 3 officer authorized by the
Director General in this behalf, and the officer secondly mentioned shall, upon
consideration of the relevant facts and circumstances, give his decision within 7
(seven) days as to whether a formal investigation may be initiated or whether no
action at all is necessary, and accordingly next actions shall be taken.

Sec: 7
Procedure for investigation
(4) If a decision is taken to initiate a formal investigation under subsection
(3), the investigating officer shall present the said preliminary report to the
concerned police station, and it shall be recorded in the police station as a
first information report or ejahar of the offence and thereafter the said
investigating officer or, as the case may be, another officer authorized by
the Director General shall conduct the investigation.
(5) The investigating officer while investigating an offence shall, in relation
to that offence, be competent to exercise the same powers as an officer in
charge of a police station and he shall, subject to this Act and the rules,
follow the Criminal Procedure Code.

Sec: 7
Procedure for investigation
(6) Any statement recorded, any article seized, any sample or other information
collected at the inquiry stage held before formal investigation may be considered
and used for the purpose of investigation.
(7) The investigating officer shall, after completion of the investigation, obtain the
approval of an officer authorized by the Director General in this behalf and submit
one copy of the investigation report and the original or attested copies of the
supporting documents directly to the environment court or as the case may be to a
Special Magistrate if the case is triable by such Magistrate, and shall also keep one
copy at his office and present another copy to the police station; and such report
shall be deemed to be a police report under section 173 of Criminal Procedure
Code.

Sec: 7
Procedure for investigation
 (8) Notwithstanding the provisions of sub-section (3), where the investigating
officer has reasons to believe that any document, article or equipment involved
with an offence is likely to be removed or destroyed, he may, even before a
decision for formal investigation, seize the document, article or equipment, and if
the investigator has reasons to believe that the offender is likely to abscond, he
may also arrest the offender.

Sec: 4
Establishment of Environment Courts
 (1) For carrying out the purposes of this Act, the Government shall, by notification in the official
Gazette, establish one or more Environment Court in each Division.
 (2) An Environment Court shall be constituted with one judge and, in consultation with the
Supreme Court, the Government shall-
 (a) appoint an officer of the judicial service of the rank of Joint District Judge, and such Judge shall
dispose of cases only under environmental laws; and
 (b) if it considers necessary, appoint a judge of the rank of Joint District Judge for a Division or a
specified part thereof to act as the judge of an Environment Court in addition to his ordinary functions,
and the said judge shall, in addition to his ordinary functions, dispose of the cases that fall within the
jurisdiction of an Environment Court.]

Sec: 4
Establishment of Environment Courts
 (3) Each Environment Court shall have its seat at the Divisional Headquarter;
however, the Government, if it considers necessary, may, by general or specific
order published in the official Gazette, specify places outside the Divisional
Headquarter where the court can hold its sittings.
 (4) If more than one Environment Court are established in any Division, the
Government shall, by notification in the official Gazette, specify the territorial
jurisdiction of each such Court.

Sec 561A
Saving of inherent power of High Court Division
 Nothing in this Code shall be deemed to limit or affect the inherent power of the
High Court Division to make such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.

Sec: 5A
Penalty for violating court’s order
 If a person –
(a) violates a direction issued under clause (a) of section 5(2) by repeating or
continuing the offence for the commission of which he has been sentenced, he
shall be liable to be sentenced with the penalty prescribed for that offence,
provided such penalty shall not be less than the one imposed on him at the
time of issuance of the direction;
(b) violates a direction issued under clause (b) or (c) of section 5(2), the violation
shall be an independent offence for which he shall be liable to be sentenced to
an imprisonment not exceeding 3 (three) years or to a fine not exceeding 3
(three) lac taka or to both.

Sec: 5C
Trial procedure in Special Magistrate’s Court
(1) No Special Magistrate shall take cognizance of an
offence except on a written report of an Inspector :
Provided that, if authorized by the Director General in
relation to the institution of a particular kind of case triable
by such Magistrate, an Inspector may present a report on
such offence directly to the Magistrate without following the
procedure prescribed in section 7.

Sec: 5C
Trial procedure in Special Magistrate’s Court
(2) A Special Magistrate appointed under this Act shall
follow the procedure for summary trial as prescribed in the
Criminal Procedure Code.
(3) A case triable by the court of a Special Magistrate shall
be conducted by an Assistant Public Prosecutor or a police
officer specified by the Government or an Inspector of the
Department of Environment on behalf of the State.

Circular of 2002

Can S.I. of Police be considered an
Inspector?

Implementation of Environment Court Act
These courts are sitting idle due to lack of
environment law related cases.
According to Court sources it only received four cases
in early 2017 and 54 in the preceding five years and
the number of cases filed from 2007-11 was 276.
Only seven cases, of which two of Dhaka Divisional
Court and five of Chittagong divisional court are
pending with the appellate court for hearing.

Reasons for Poor Performance?
• Lack of Leadership strength
• Low Public demand – necessary to support the
process and educate the community
• Lack of Political support
• Judiciary support and ownership – opposition
of the existing judiciary to specialization can kill
efforts or result in authorization but no
establishment (an ABNE)

Reasons for Poor Performance?
Budget – a dedicated budget is necessary, even for
minimalist models
Opposition arguments – powerful opposition from the
judiciary, the administration and business interests can
torpedo ECT creation
Changing the status quo – there may be a need first to
modify existing institutional and environmental laws and
regulations if they are weak or create significant barriers

Reasons for Poor Performance?
• Inadequate or corrupt enforcement agencies –
without effective enforcement agencies, an ECT may
be powerless
• Lack of environmentally trained judges and decision
makers – it is preferable for all initial appointees to be
environmentally knowledgeable
• Lack of environmentally trained attorneys – without a
base of environmental lawyers the ECT may not get
cases or have them presented well

Reasons for Poor Performance?
Inadequate judicial training capacity – judicial education is
needed, through a judicial training academy, university,
IGO or NGO with environmental education expertise and
commitment
•Literacy of the affected population – community education
and awareness is the cornerstone of an effective ECT and
an important element to develop in the planning process.

Reasons for Poor Performance?
Jurisdictional error: lack of integrated jurisdictions
over the laws pari materia and insufficient penal
policy under Section 15 of the Environment
Conservation Act 1995.
No priority by judges
Non-cooperation of the DoE
Technical experts not allocated
No swift procedure
Lack of skill from Special Public Prosecutors

Way out?