Dhaka University Law Journal, 2024, 35 (1), 87-112

DOI: https://doi.org/10.3329/dulj.v35i1.77558

Environment Court and Special Magistrate Court in

Bangladesh: A Comparative Study

Md. Golam Mostofa Hasan* and Md. Rahmat Ullah**

Abstract: Environment Court and Special Magistrate Court are two special courts
to adjudicate environmental cases of both civil and criminal nature. They were
constituted by the Environment Court Act, 2010 in order to prevent environmental
degradation and punish environmental offenses under different environmental
laws. But one decade later, it is seen that these special courts are unable to
deliver what it was constituted for. The article aims to provide an overview of
environmental governance in Bangladesh with an illustrative discussion of the
adjudication process of environmental cases in Bangladesh. In that process, it
will examine the major challenges, both legal and non-legal, that are creating
hindrances to the efficient functioning of the Environment Courts and Special
Magistrate Courts. It is concluded with recommendations with reformative
measures for empowering the environment court and special magistrate court in
Bangladesh based on the best practices of New Zealand, Australia, Philippines,
and India, because the environment court and tribunals in these jurisdictions are
considered as successful as being capable of model environment courts.

Keywords: Environmental Governance and Justice, Environment Courts, Special

Magistrate Courts, Department of Environment, Reformation.

1. Introduction
Triple planetary crises, i.e., environmental pollution, biodiversity loss, and
climate change are the pressing challenges for the present World.1Along with all
global efforts and institutions, the international community has long emphasized
creating and promoting strong and effective national institutions including
specialized judicial bodies to address environmental concerns locally.2 Principles

* Assistant Professor, Department of Law, Jagannath University, email: [email protected].

ac.bd
** Professor, Department of Law, University of Dhaka, email: [email protected]
1 Michelle Spollen, ‘What is the Tripple Planetary Crises?’ (United Nations Climate Change, 13
April 2022)< https://unfccc.int/news/what-is-the-triple-planetary-crisis> accessed 25 January
2024.
2 TimStephens, ‘International courts and environmental protection’ (2009) 62 Cambridge University
Press78-81; See, the Rio Declaration on Environment and Development 1992, Principles 10 and 13.
88 Dhaka University Law Journal, Vol. 35 (1), 2024

10 and 13 of the Rio Declaration 1992 lays down that the state shall develop
local “judicial administrative proceedings” to provide redress and remedy for the
violations of environmental laws.3The Sustainable Development Goals (SDG)
16 emphasizes promoting effective, accountable, and inclusive local institutions
and ensuring access to justice for all to achieve sustainable development.4It is
generally accepted that domestic courts can play a vital role both in enforcing
national environmental laws and regulations and in implementing international
treaty obligations of a country.5 In other words, “domestic courts also play a pivotal
role in linking international obligations of conduct with national obligations of
result”.6Special Environmental Courts and Tribunals (hereinafter ECTs)continue
to be widely accepted as an important and effective domestic judicial body in this
respect.7The “exponential growth” in the number of ECTs in countries from the
beginning of the twentieth-century evidences this claim.8In 2009, a study found
over 350 ECTs in 41 countries.9According to the last updated study on the number
of ECTs globally in 2018, the number increased to nearly 1,500 ECTs.10It has been
predicted that such proliferation of ECTs will continue11 with greater success and
efficacy in future.12 It has been empirically proven that ECTs are best capable of
ensuring access to remedies for environmental harms and wrongs done, broadly,
to environmental justice at the local level.13
3 Jeorge Viñuales (ed), The Rio Declaration on Environment and Development: A Commentary
(Oxford Commentaries on Interna, 2015).
4 United Nations, Department of Social and Economic Affairs, ‘Sustainable Development’,
<https://sdgs.un.org/goals/goal16#targets_and_indicators> accessed 25 Jan 2024.
5 Ibid, Stephens, (n 2) 79.
6 Anna-Julia Saiger, ‘Domestic courts and the Paris Agreement’s climate goals: The need for a
comparative approach’ (2020) 9(1) Transnational Environmental Law 37.
7 Ibid, Stephens, (n 2) 78-81; Anna-Julia (n 6) 37-54.
8 Brian Preston, ‘Characteristics of Successful Environmental Courts and Tribunals’ (2014) 26
Journal of Environmental Law 365-366.
9 George Rock Pring, and Catherine Kitty Pring, Greening Justice: Creating and Improving
Environmental Courts and Tribunals, (The Access Initiative of World Resources Institute, 2009)
<https://www.law.du.edu/ect-study> accessed 15 January 2022.
10
Don C Smith, ‘Environment Courts and Tribunals: Changing Environmental and Natural
Resources Law around the Globe’ (2018) 36(2) Journal of Energy and Resources Law Editorial.
11
George R Pring, and Catherine K Pring, ‘Environmental Courts and Tribunals’, in L. Paddock,
R. Glicksman and N. Bryner, (eds), Decision Making in Environmental Law, a volume in the
Encyclopedia of Environmental Law series(E. Elgar forthcoming, 2016) 2.
12
George R Pring, ‘Access to Justice and Environmental Courts and Tribunals: The Glotherebal
Picture and Future Predictions’, a presentation on the First Inter American Forum on
Environmental Justice, (Santiago, Chile, 10 October 2014) 4.
13
George R Pring, and Catherine K Pring, Environmental Courts and Tribunals: A Guide for Policy
Makers, (UNEP, Law Division, 2016), Executive Summary III <https://www.law.du.edu/ect-
study> accessed 15 January 2023.
 Environment Court and Special Magistrate Court in Bangladesh 89

The Constitution of Bangladesh imposes a non-justiciable constitutional

responsibility upon the State to protect the environment and biodiversity.
14
Moreover, case laws over the years have well established that the right to life
under articles 31 and 32 of the Constitution is a justiciable fundamental right has
intrinsic relations with the environment, and recognizes the right to a safe, healthy
and pollution-free environment as a guaranteed fundamental right.15Therefore,
the government is equally responsible as other fundamental rights to provide a
safe, healthy, and pollution-free environment for every citizen of the country.16Till
today Bangladesh has ratifiedal all most all international environmental treaties
and declarations.17 To comply with the obligations enshrined in the ratified
international instruments, the country has enacted around 200 environmental
laws18,for this article most pertinent are, the Bangladesh Environment Conservation
Act 1995 with its 1997 Rules, the Environment Court Act 2010, the Bangladesh
Water Act, 2013 etc., and has established several national institutions and forums,

14
Constitution of Bangladesh, art 18A states ‘the State shall endeavor to protect and improve
the environment and to preserve and safeguard the natural resources, bio-diversity, wetland,
forests, and wildlife for the present and future generations.’ The provisions under Part 2 of the
Constitution are not judicially enforceable. See, Constitution of Bangladesh, art 8.
15
See, Dr. Mohiuddin Farooque vs Bangladesh, Writ Petition no. 92/1996 (48 DLR 438); Dr.
Mohiuddin Farooque vs Bangladesh, 49 DLR (AD) 1
16
In the write case Dr. Mohiuddin Farooque vs Bangladesh, Writ Petition no. 92/1996 (48 DLR
438), the Government was held responsible for not prohibiting importation of radiated skimmed
milk powder. The meaning of Right to life was raised for the first time in court and the court
extended the meaning as to include the right to safe, clean and healthy environment and the
meaning was accepted without question in subsequent cases); Dr. Mohiuddin Farooque vs
Bangladesh, 49 DLR (AD) 1 (Locus standi of petitioner on FAP-20 case was established);
Dr. Mohiuddin Farooque vs Bangladesh, Writ Petition no.998 of 1994; 50 DLR (HCD) 84
[Food Action Plan-20 was successfully challenged on grounds of, inter alia, creating ecological
imbalance, and destruction of life and livelihood of one million people of Tangail District]; Dr.
Mohiuddin Farooque vs Bangladesh, 55 DLR (HCD) 69 (Industrial Pollution Case- in this case,
Department of Environment and the concerned ministry was directed to ensure that industries
and factories must adopt adequate and sufficient measure to control pollution and not to give
permission to set up new industries without first arranging adequate and sufficient measures to
control pollution respectively); Dr. Mohiuddin Farooque vs Bangladesh, 55 DLR (HCD) 613
(Vehicular Pollution Case- in this case, the HCD gave eight directions to the Government to
prevent air pollution from emission of hazardous smoke and incessant use of high noise make
horns from motor vehicles plying in the Dhaka city ). Similar Jurisprudence has also been
developed in India which has led the Supreme Court of Bangladesh to take the same view. See,
M.C. Mehta vs. Union of India, (1987), 4 SCC 463; Virender Gaur vs. State of Haryana, (1995),
2 SCC 577; Goa Foundation and Peaceful Society vs. Union of India, (2014) 4 FLT 60, etc.
17
Abdullah Al Faruque, Environmental Law: Global and Bangladesh Context, (Dhaka, New Warsi
Book Corporation, 2017) 509-511.
18
Mohiuddin Farooque, et al, ‘Laws Regulating Environment in Bangladesh’ (4th edn., BELA
2020); Abdullah Al Faruque (n 17) 253; See also, Bahreen Khan, ‘Efficacy & Implementation
Gaps in the ‘Core Environmental Laws’ of Bangladesh: An Overview’ (2022) 33 Dhaka
University Law Journal 73.
90 Dhaka University Law Journal, Vol. 35 (1), 2024

i.e., Department of Environment, Environment Court, and Special Magistrate

Court. Environment Court and Special Magistrate Court were constituted in
2000 and were subsequently reconstituted in 2010 under the Environment Court
Act 2010.19Under the Environment Court Act2010, the Environment Court and
Special Magistrate Court have ample jurisdiction to stretch their legal hand to
protect environment-related rights; prevent environmental harm; and punish
environmental offenses.20They have jurisdiction over environmental offenses
as provided by the Bangladesh Environment Conservation Act 1995 and
other environment-related laws.21Environment Court has the power to provide
compensation in case of environmental losses as well.22 Both the Environment
Court and Special Magistrate Court may punish violation of its orders and
directions and secure compliance with its mandate.23However, due to certain legal
and non-legal barriers, the Courts are unable to exercise those powers effectively.
The Environment Court and Special Magistrate Court cannot take into cognizance
any matter without a written report of an Inspector from the Department of
Environment (DoE). It is argued that this legal baris one of the principal causes
why the Courts fail to function effectively.24 Despite pervasive environmental
degradation, fewer numbers of cases are lodged before the court.25It is also claimed
that due to procedural complexity and lack of cooperation on the part of the DoE,
the conviction rate of the cases that go to trial is very low.26Against this backdrop,
the article aims to make a general assessment of the efficacy of the Environment
Court and Special Magistrate Court in Bangladesh with a view to identifying
the major challenges to its efficient functioning through a critical comparison of
the common features or the best practices found or practiced in the environment
courts and tribunals in New Zealand, Australia, Philippines, and India. This
article critically analyses the efficacy of Bangladesh Environment courts having
these courts as guiding and model environment courts, since they are the most
successful environment courts in the world. At the end, it will conclude with the
recommendations with the measures for the reformation of the Courts

The article is prepared by complying with the doctrinal and non-doctrinal,

mixed methods. It has studied the case records of the Environment Courts in
Dhaka and Chittagong from 2003 to 2022 to ascertain the volume and trend of

19
See, generally, Environment Court Act 2010.
20
Environment Court Act, 2010, ss 11-17.
21
Environment Court Act, 2010, Preamble, s 14(3).
22
Bangladesh Environment Conservation Act, 1995, s 17; Environment Court Act, 2010, s 7.
23
Environment Court Act, 2010, s 8 to read together with ss 6(2), 7(3).
24
Environment Court Act, 2010, ss 6(3) and 7(4); Abdullah Al Faruque, (n 10) 342.
25
Ibid, Faruque, (n 17) 345.
26
Ibid.
 Environment Court and Special Magistrate Court in Bangladesh 91

cases filed on environmental matters. A pilot study has been conducted in the
Special Magistrate Court in Narayanganj. Unstructured interviews have been
conducted among the concerned Judges, Advocates, and Academics. Books, peer-
reviewed journals, and reports from relevant international and local organizations,
etc. have been consulted.

2. Structure of Environmental Governance in Bangladesh

Bangladeshis extremely rich in bio-diversity with full of natural resources,
flora and fauna. The country is crisscrossed by hundreds of rivers and their
tributaries. In a word, nature is the life line of the country. Unfortunately,
pervasive environmental pollution and degradation along with bio-diversity loss
have rapidly increased since the 1980s due to population explosion, unplanned
urbanization, industrialization, and huge developmental works in the country.27
All-out environmental degradation has posed serious environmental threats to the
country resulting in natural calamities and effects of climate change.28However,
environmental consciousness and mainstreaming environmental jurisprudence in
the national legal and policy agenda in Bangladesh to address environmental issues
have begun very recently. It was just in the 1980s-90s when the environmental
movement began to take concrete shape and protection and conservation of the
environment became a priority issue in the country.29Before that, a few laws like
the Forest Act, 1927; the Bangladesh Wildlife (Preservation) Order, 1973; the
Protection and Conservation of Fish Act, 1950, etc. dealt with specific contents
of the environment. There was no integrated approach to the conservation of the
environment at all. To develop an integrated mechanism, in 1992 the first ‘National
Environment Policy (NEP) was formulated. To materialize the NEP, the ‘National
Environment Management Action Plan’ (NEMAP) was prepared in 1995 to
ensure sustainable development, and ecological balance through sustainable use
of all natural resources. In 1989, a separate ministry, ‘The Ministry of Forest and
Environment’ was established. Subsequently, on May 14, 2018, it was renamed
as Ministry of Environment, Forest and Climate Change. In 1995,the Department
of Environment (DoE)30was placed under the Ministry of Forest and Environment
with a plenary mandate and powers, both executive and quasi-judicial to prevent
environmental pollution and protect and preserve environment.31 On the other hand,
to keep pace with the development of international environmental jurisprudence the
government of Bangladesh adopted and ratified many international environmental
27
Ibid, 252.
28
Ibid, 252.
29
Ibid, 252.
30
Department of Environment was first established in 1977 under the Environment Pollution
Control Ordinance 1977.
31
See, generally, Bangladesh Environment Conservation Act 1995.
92 Dhaka University Law Journal, Vol. 35 (1), 2024

treaties, conventions, and declarations to comply with international obligations

the government has enacted and modified about 200 laws and regulations bearing
directly or indirectly relations with environmental issues.32A study shows that
Bangladesh has 23 environmental laws with another 185 laws having indirect
bearing on environment and resource preservation.33

The overall environmental governance in Bangladesh consists of three

diverse governance mechanisms combining constitutional, executive, and
judicial Governance. High Court Division governs the environment as a forum
of public interest environmental litigation, exercising its writ jurisdictions;
Environment Court and Special Magistrate Court function as special judicial
bodies to adjudicate environmental claims and disputes and impose punishment
for environmental offenses; whereas the Department of Environment (DoE)
function as a comprehensive executive authority under the Ministry of Forest,
Environment and Climate Change.

In Public Interest Environmental Litigation (PIEL), the High Court Division

of the Supreme Court has been exercising its power provided by article 102 of the
Constitution to protect the environmental rights of the citizens. PIEL is a class
action suit of a general nature encompassing myriad environmental injustices to
mass people. For instance, development projects like Flood Action Plan-20, river
pollution by disposal of industrial wastes, illegal occupation of rivers and lakes,
indiscriminate cutting of hills, importation of skimmed radiated milk, etc. have
been successfully challenged by those PEILs.34

DoE is an executive agent of the Ministry of Environment, Forest and Climate

Change. It works as compliance watchdog of the environmental legislations. The
function of DoE is to monitor and implement environmental laws and regulations
throughout the country. A person aggrieved by any environmental damage or
offences first has to go to DoE for remedies and if not adequately remedied by
the department, may file a case in Environment Court or a Special Magistrate
Court.35The investigation or inquiry into environmental cases is conducted by the
appointed inspector of the DoE.36

32
Ibid, Faruque (n 17) 253.
33
The South Asia Co-operative Environment Program (SACEP), Handbook on Environmental
Legislations and Institutions in Bangladesh (2001) 2 <http://sacep.org/pdf/Reports-
Technical/2001-UNEP-SACEP-Law-Handbook-Bangladesh.pdf>accessed 25 June 2023.
34
Ibid, Faruque (n 17) 347-355.
35
Environment Court Act 2010, s 6 and 7.
36
Ibid.
 Environment Court and Special Magistrate Court in Bangladesh 93

3. Environment Court and Special Magistrate Court

Environment Court is both a civil and criminal court, whereas Special
Magistrate Court is exclusively a criminal court. First, all environmental cases of
a criminal nature shall be filed in the Special Magistrate Court. Then the Special
Magistrate Court takes cognizance of the case filed and tries that to which it
has jurisdiction to try and sends the cases to which it has no trial jurisdiction
to the Environment Court.37Special Magistrate Court may sentence a term of
imprisonment not exceeding five years or a fine not exceeding five lac Taka or
both.38 Environment Court may sentence any term or any amount of fine prescribed
by the laws.39 Therefore, a case where a sentence exceeds five-year imprisonment
or a five lac Taka fine shall be sent to the Environment Court for trial.40

Environment Court shall be constituted with one judge who shall be the rank
of Joint District Judge.41He shall be appointed by the government with consultation
of the Supreme Court.42 He shall dispose of environment cases in addition to
his ordinary judicial responsibility.43 Generally, in each district, there shall be
one Environment Court. However, the government can appoint more than one
Environment Court in a district as it thinks fit. In that case, the government shall
notify in the official gazette specifying the territorial jurisdiction of each court.44On
the other hand, the government may establish one or more Special Magistrate
Courtin a district.45In consultation with the Supreme Court, the government
shall appoint a Magistrate of the First Class or Metropolitan Magistrate, as the
case may be, as Special Magistrate Court.46 He may be appointed to perform his
environmental duty exclusively or in addition to his ordinary responsibility, as
directed by the government.47

Cases in the Environment Court or Special Magistrate Court shall be filed by

the Director General of the DoE or any person appointed on his behalf.48 Neither
the Environment Court nor Special Magistrate Court shall take cognizance of a
37
Environment Court Act, 2010, s 7(1), 9(2).
38
Environment Court Act, 2010, s 9(1).
39
Environment Court Act, 2010, s 7(1).
40
Environment Court Act, 2010, s 7(1) and 9(1) read together.
41
Environment Court Act, 2010, s 4(2).
42
Ibid.
43
Environment Court Act, 2010, s 4(3).
44
Environment Court Act, 2010, s 4(2)(3).
45
Environment Court Act, 2010, s 5 (1).
46
Environment Court Act, 2010, s 5(2).
47
Environment Court Act, 2010, s 5 (2).
48
Environment Court Act, 2010, s 6(1) and 7(1).
94 Dhaka University Law Journal, Vol. 35 (1), 2024

case without the written report of an Inspector of the DoE.49 They may allow a
party to sue or take cognizance of a case, only when the court is satisfied that a
person presented a written request to the authorized Inspector of DoE to accept a
claim of compensation or a complaint respectively, and no action has been taken
within sixty days of the submission of such claim or complaint.50 The court in
such a case must give the Director General or Inspector of the DoE a reasonable
opportunity to be heard before filing a case or taking cognizance of a criminal
case.51Both the Environment Court and Special Magistrate Court shall dispose of
a case within 180 days from the date of framing issues and the date of framing
charge respectively.52The Code of Civil Procedure, 1908 and the Code of Criminal
Procedure, 1898shall be followed mutatis mutandis in respect of a civil case or
trial of an offense respectively.53

Environment Appellate Court shall hear appeals from both the Environment
Court and Special Magistrate Court. Government in consultation with the
Supreme Court shall appoint an officer of the rank of District Judge as Judge of
the Environment Appellate Court who shall perform as an Appellate Court under
the Code of Civil Procedure, 1908 or a Sessions Judge Court under the Code of
Criminal Procedure1898 respectively.54An appeal shall be filed within 30 days
from the date of passing of the impugned decision by the trial court.55

4. Efficacy Evaluation of Environment Court and Special Magistrate Court

The first-ever global study on ECTs was made by George Pring and Catherine
Pring, titled, Greening Justice: Creating and Improving Environmental Courts
and Tribunals (2009).56 Subsequently, the same authors under the auspices of
UNEP published another global study, titled Environmental Courts and Tribunals:
A Guide for Policy Makers (2016).57 Since then, academic researchers have
identified about 12 specific characteristics that successful ECTs should possess.58
‘Successful ECT’ is defined as those that possess practices that ensure equal and
easy access to justice, advance environmental jurisprudence, improve the rule
of law situation, and rely on procedures that bring a quicker and more effective
49
Environment Court Act, 2010, s 7(4) and 6(4) respectively.
50
Ibid.
51
Ibid.
52
Environment Court Act, 2010, s 14(8) and 10(2) respectively.
53
Environment Court Act, 2010, s 14 and 10 respectively.
54
Environment Court Act, 2010, s 19.
55
Environment Court Act, 2010, s 19(2).
56
Ibid, Pring (n 9).
57
Ibid, Pring (n 13).
58
See generally, Preston, (n 8)365.
 Environment Court and Special Magistrate Court in Bangladesh 95

decision and cost reduction.59 In light of these 12 standards and criteria of a

successful ECT, the efficacy- both the merits and weaknesses of the Environment
Court and Special Magistrate in Bangladesh is examined below.

At present two Environment Courts in Dhaka and Chittagong and one

Environment Appellate Court in Bangladesh operate. All these courts were set
up in 2002. An Environment Court in Sylhet was set up in 2005 but no longer
functions. By a notification from the Ministry of Law, Justice, and Parliamentary
Affairs dated 22/03/2011, all Senior Magistrate and Metropolitan Magistrate
under the Chief Judicial Magistrate and Chief Metropolitan Magistrate in the
Metropolitan Area respectively are empowered to act and exercise powers as
Special Magistrate Court under the Environment Court Act, 2010.60

4.1. Scope of Jurisdictions

Successful ECTs usually possess comprehensive civil, criminal, and
administrative jurisdictions and a wide range of execution powers.61The
Environmental Court in New Zealand62; the Land and Environment Court in New
South Wales of Australia,63 and the National Green Tribunal of India64are among
the best examples.65The Court in New South Wales, Australia exercises a wide
range of jurisdiction covering 8 classes of areas extending from environmental
matters to land tenure, indigenous communities’ land rights, and even mining,
because the impacts of decisions in one area are eventually felt in other areas.66 The
Australian Court has the power to hear appeals from government agencies making
decisions under environment-related laws and local government agencies having
an impact on environment and land use, and also from a local court in respect of

59
Ibid, Pring (n 13) 44.
60
Ministry of Law, Justice and Parliamentary Affairs, notification dated 22/03/2011, reference-
wePvi-1/4wc-1/2008-133.
61
Ibid, Pring (n 9) 28; Ibid, Preston (n 8) 372-374.
62
Environment Court in New Zealand is one of the successful models of a special environment
court. It was established in 1996, by the Resource Management Act 1991. See, The Court
Environment Court of New Zealand, ‘About the Environment Court’ <https://environmentcourt.
govt.nz/about/history/> accessed 22 June 2023.
63
The most successful special environment court is the ‘Land and Environment Court of New
South Wales, Australia’. It was constituted by the Land and Environment Court Act 1979, and
the first environment court ever established across the globe. See Land and Environment Court
of New South Wales, <https://www.lec.nsw.gov.au/> 23 June 2023.
64
The National Green Tribunal was established in India under the National Green Tribunal Act
(NGT) 2010. See, National Green Tribunal <www.greentribunal.gov.in> accessed on 01 July
2023.
65
Ibid, Pring (n 13) 35.
66
Land and Environment Court Act, 1979 (Aus), ss. 16-21c.
96 Dhaka University Law Journal, Vol. 35 (1), 2024

an environmental offense.67The Environmental Court of New Zealand exercises

comprehensive jurisdictions in three main ways the Court exercises the power of
judicial review by declaring a particular act or omission illegally contravening
the Resource Management Act 1991, may review decisions of local and regional
authorities, and enforce compliance with its decisions through civil or criminal
proceedings.68 The National Green Tribunal of Indian has broad jurisdiction to
settle all environmental cases and to order any relief and compensation to victims
of pollution and other environmental damage arising under the enactments
specified in Schedule I, and to hear appeals from certain authorities.69The NGT is
not bound by the traditional rules of procedure and evidence and has the power to
make its own rules of procedure and are mostly guided by the principles of natural
justice.70The Court can apply certain principles of international environmental
law, i.e., principles of sustainable development, precautionary principle and
polluters pay principle.71Therefore, the jurisdictions of the NGT are wide enough
to empower the court to take broad measures to uphold environmental justice
and provide compensation to the victims of environmental damage.72However, the
Court has no criminal jurisdictions.73

The Environment Courts and Special Magistrate Courts in Bangladesh

combine both civil and criminal jurisdictions in line with the regular judicial
structure of the country. It has the power to grant compensation as well as to
punish the offenders with sentences under different environmental laws.74 The
Environment Court Act, 2010 empowers the court by providing the power
to take necessary actions to prevent environmental pollution and violations of
environmental laws by granting injunctions, directing investigations, allowing
search and seizure, etc.75The enforcing power of the court is broad as the court
can make “any orders as it fits appropriate”.76The Special Magistrate Court is also
empowered to conduct mobile court when necessary.77

67
Ibid,, also see, Crimes (Appeal and Review Act) 2001 (Aus), s 32.
68
Resource Management Act, 1991, (NZ), ss. 120, 310, 314-321.
69
National Green Tribunal Act, 2010, (Ind) ss. 14-25.
70
Ibid, s, 19.
71
Ibid, s, 20.
72
Gitanjali Gill, ‘Environmental justice in India: the national green tribunal and expert
members’ (2016) 5 (1) Transnational Environmental Law186-187.
73
National Green Tribunal Act,, 2010 (Ind), s 14.
74
Environment Court Act 2010, ss. 7(2), 14(3) and 15.
75
Environment Court Act 2010, ss. 11 and 12.
76
Ibid.
77
Environment Court Act 2010, ss 12(11).
 Environment Court and Special Magistrate Court in Bangladesh 97

4.2. Composition of Court and Appointment of Judges

Studies show that no particular structure of the composition of the ECTs
is attached to the successful ECTs, rather it varies substantially across the
ECTs.78However, the judges of successful ECTs are appointed in “a transparent,
open, and competent selection process”.79Appointments based on the Judges’
competence, and high standards are crucial not only to the effectiveness and
credibility of court decisions but also to secure public confidence in the Court.80

The Environment Court of New Zealand is at the level of the District

Court which is the first tier of the four-tier court system of New Zealand, and
is subordinate to the High Court, the intermediary appellate court.81Judges of
the Environment Court of New Zealand are the District Court Judges.82 They
are appointed by the Governor General on the recommendation of the Attorney-
General.83The law requires that to make there commendation, the Attorney-
General must consult with the Minister for the Environment and the Minister of
Māori Affairs on these appointments.84 However, since the Attorney-General is
a member of the Executive, there is a constitutional convention that he decides
independently and not influenced by party politics, as well as consults with the
Chief District Court Judge.85The Secretary for Justice, who is the head of the
Ministry of Justice, conducts the appointment process of the Judges. Thus, the
appointments are transparent and checked for unjust political and executive
interference.86

The Land and Environment Court of NSW is the superior court having the
same standing as the Supreme Court of New South Wales, which is the highest
state court in New South Wales where as the High Court of Australia is the Apex
court in federal jurisdiction.87 The judges are appointed by the Governor among
78
Ibid, Preston, (n 8) 366-367.
79
Ibid.
80
Ibid.
81
Resource Management Act, 1991, (NZ)s 299. The four tiers of courts in New Zealand from
lowest level to upper level are the District Court, High Court, Court of Appeals, and the Supreme
Court of New Zealand. See, Courts of New Zealand, Structure of the Court System, <https://
www.courtsofnz.govt.nz/about-the-judiciary/structure-of-the-court-system>accessed 25
August, 2024.
82
Resource Management Act, 1991, (NZ) s. 249.
83
Resource Management Act, 1991, (NZ) s. 250.
84
Ibid.
85
See, Courts of New Zealand, ‘How is a Judge Appointed’, < https://www.courtsofnz.govt.nz/
learn-about-our-courts/how-is-a-judge-appointed/#_ftn1> accessed 25 August, 2024.
86
Ibid.
87
Land and Environment Court Act, 1979 (Aus), s. 7.
98 Dhaka University Law Journal, Vol. 35 (1), 2024

the persons eligible for being appointed as judges under the law. 88The appointment
procedure is governed by the Judicial Officers Act 1986 (NSW) and conducted
by the Judicial Commission of New South Wales established under this Act.
89
Like the NSW Land and Environment Court, the NGT in India has been given
the status of the High Court of a State in a federal system of governance where
the Supreme Court of India is the apex court.90 The Chairperson, the presiding
judge of the NGT is appointed by the Central Government in consultation
with the Chief Justice of India, and other Judges and Expert Members of the
Tribunal are appointed by the central Government on the recommendations of
a Selection Committee constituted under the Act.91In Bangladesh, Environment
Court Judges and Special Magistrates are appointed from judicial officers who
are appointed through competitive and fair recruitment proceedings conducted by
the Bangladesh Judicial Service Commission which is headed by a justice of the
Appellate Division of the Supreme Court of Bangladesh.

4.3 Power to Provide Adequate Remedies and Enforcing Mechanisms

Successful ECTs possess the power to provide adequate remedies.92 For
instance, the Court needs to have the power to give necessary, innovative,
appropriate orders to address the harm as it deems fit. It also should have
enforcement tools to abide by the laws and regulations, because they are crucial to
the better efficacy of ECTs.93 The Land and Environment Court of New South Wales
has a wide range of enforcement mechanisms as many as six main types including
civil enforcement (fines, injunctions, etc.), civil penalties (fine and detention/not
used), criminal (imprisonment), administrative (spot fines, notices, etc.), judicial
review, merit review.94National Green Tribunal of India can adopt appropriate and
fitting enforcement and monitoring mechanisms for ensuring compliance with
its orders.95 The NGT may confer powers on the selected bodies, including those
comprising former high court judges, former chief secretaries, or subject matter

88
Ibid, s 8.
89
Land and Environment Court of New South Wales, <https://lec.nsw.gov.au/about-us/judicial-
officers-and-decision-makers.html>accessed 13 September, 2024.
90
National Green Tribunal Act, 2010, (Ind.) s 5.
91
Ibid, s. 6.
92
Ibid, Pring (n 13) 5.
93
George Rock Pring, and Catherine Kitty Pring, ‘Twenty-first Environmental Dispute Resolution-
Is there an ‘ECT’ in Your Future?’, 2015, 33(1) Journal of Energy and Natural Resources Law30.
94
Brian Preston, J, Access to Justice, Land and Environment Court (June 2016), a paper present to
the Law and Sustainability Symposium, held in Brisbane on 11 March, 2011.
95
Gitanjali Gill, ‘The National Green Tribunal: Evolving Adjudicatory Dimensions’ (2019) 49(2-
3) Environmental Policy and Law 153.
 Environment Court and Special Magistrate Court in Bangladesh 99

experts to ensure that the orders of the Tribunal are timely executed.96

Environment Courts and Special Magistrate Courts in Bangladesh are

adequately empowered to compel obedience to their orders since the 2010 Act
gives them the power to sanction stringent punishments to persons who violate the
court’s orders and directions.97Law enforcement agencies shall render assistance
to the investigation efforts of the Courts, whenever it is called for.98The courts
have the power to inspect any property, object, or place of occurrence of offense
if any question arises regarding such object, place, or property. The result of such
inspection shall be recorded in the memorandum and such memorandum shall be
evidence in the trial of the case.99

4.4 ADR
Adherence to ADR in the formal legal process makes many cases disposed
of quickly and cheaply. It is found as the most common best practice among
successful environmental courts around the globe.100The Land and Environment
Court of New South Wales has a variety of ADR processes, both in-house and
outside by parties in the forms of either conciliation, arbitration, mediation, or
neutral evaluation according to its appropriateness to the cases.101The Court’s in-
house ADR procedures include neutral evaluation (conducted by commissioners),
mediation (conducted by experienced mediators, including the registrar, full-time
commissioners, and some acting commissioners), and conciliation (conducted by
commissioners or registrars).Additionally, there are unofficial channels like case
management that could lead to a settlement through negotiation. The Court also
encourages the use of accredited mediators to mediate disputes externally.102The
Environment Court of New Zealand also provides for ADR on its own motion, or
on request.103A member of the Environment Court may conduct ADR.104The NGT
Act, 2010, of India does not explicitly provide for ADR proceedings, but it does
allow the NGT to adopt any procedure that it deems fit for.105

96
National Green Tribunal, ‘Methodology of the NGT’< https://www.greentribunal.gov.in/
methodology-ngt > accessed 1 July 2023.
97
Environment Court Act, 2010, s 8.
98
Environment Court Act, 2010, s 13.
99
Environment Court Act, 2010, s 17.
100
Ibid, Pring (n 1) 47; Pring (n 2) 72.
101
Land and Environment Court Act 1979 (Aus), s 34; Preston, ( n 97).
102
Ibid.
103
Resource Management Act, 1991, (NZ), s 268.
104
Ibid.
105
Ibid, National Green Tribunal, (n 99).
100 Dhaka University Law Journal, Vol. 35 (1), 2024

ADR has been incorporated into the proceedings of the Environment Court
in Bangladesh. In environmental cases of civil nature, the Court is directed to
follow the ADR as provided under the Code of Civil Procedure 1908, in Sections
89A-89C.106 In the case of certain environmental offenses, provisions relating
to compromise are laid down in the Act 2010.107In certain criminal offenses, the
Act contains provisions for compromise. Any person liable for being tried for
certain environmental offences as mentioned in Section 18 of the Act, 2010 may
reach a compromise with the Director General of the DoE by paying a certain
amount of prescribed fine. Such compromise may be made before or after filing
a criminal case with the special Magistrate Court, during investigation or trial, or
even in the course of appeal or revision.108Though the law provides for ADR, in
practice, the present study finds that there is no instance of adhering to ADR in
any of the environmental cases in both Dhaka and Chittagong Environment Court.
The reasons for non-adherence of ADR in environmental cases are the same as
ADR has not been successful in regular civil courts, to mention, inter alia, the
reluctance of parties and non-cooperation of advocates, etc.109

4.5 Forum for Appeals

Having ECTs at both trials and appeals increases judicial competence and
uniformity in decision-making.110Generally, there exist two-tiered environmental
courts with the higher tier as an appellate court, for instance, in Sweden,
Finland, and Belgium.111However, the Environment Court in New South Wales,
New Zealand and India is of one-tier court having both original and appellate
jurisdiction. Bangladesh has two-tiered environmental courts- the Environment
Court and Special Magistrate Court at the trial level and the Environment
Appellate Court at the appeal level.112There is only one Environment Appellate
Court situated in Dhaka.

4.6 Volume of Case Records in Environment Courts

It is assumed that case volume reflects the success and effectiveness of an
ECT. It is an accepted estimation that at least 100 cases filings per year per judge

106
Ibid, Environment Court Act, 2010, s 14(6).
107
Ibid, Environment Court Act, 2010, s 18.
108
Ibid, Environment Court Act, 2010, s 18.
109
See generally, Asrafuzzaman, A. B. M., and Md Golam Mostofa Hasan,‘Causes and Redresses
of Delays in Disposal of Civil Suits in Dhaka District Judge Court: An Empirical Study’ (2021)
32 Dhaka University Law Journal135.
110
Ibid, Pring (n 9) 30.
111
Ibid.
112
Ibid.
 Environment Court and Special Magistrate Court in Bangladesh 101

are required to justify a ‘stand-alone’ ECT.113

Year Previous Cases filed Total Disposed Pending
cases
pending
2003 00 17 17 17 00
2004 00 72 72 60 12
2005 12 23 35 18 17
2006 17 37 56 30 24
2007 24 04 28 03 25
2008 25 97 122 89 33
2009 33 82 115 76 39
2010 39 60 99 40 59
2011 59 33 92 25 67
2012 67 24 91 15 76
2013 76 09 85 08 77
2014 77 09 86 01 85
2015 85 11 96 06 90
2016 90 04 94 08 86
2017 86 05 91 12 79
2018 79 19 98 11 87
2019 87 03 90 03 87
2020 87 29 116 02 114
2021 114 19 133 21 112
2022 112 19 131 18 113
576 463
Table 1, Source : Court Statement of Environment Court in Dhaka114

Year Previous Cases filed Total Disposed Pending

cases
pending
2003 03 05 08 02 06
2004 06 16 22 06 16
2005 16 36 52 07 45

113
Ibid, Pring (n 9) 30.
114
Office of the Environment Court, Dhaka
102 Dhaka University Law Journal, Vol. 35 (1), 2024

2006 45 14 59 12 47
2007 47 60 107 08 99
2008 99 42 141 18 123
2009 123 57 180 22 158
2010 158 58 216 24 192
2011 192 49 241 27 214
2012 214 18 232 01 231
2013 231 16 247 32 215
2014 215 28 243 26 217
2015 217 04 221 17 204
2016 204 18 222 21 201
2017 201 25 226 15 211
2018 211 58 269 24 245
2019 245 13 258 11 247
2020 247 09 256 13 243
2021 243 25 268 18 250
2022 250 41 291 48 243
592 352

Table 2, Source: Court Statement of Environment Court in Chittagong115

Tables 1 and 2 show that Tables 1 and 2 show that in Dhaka and
Chittagong Environment Court, the number of cases filed per year is only 29
and 30 respectively.116 The total number of cases filed in Dhaka and Chittagong
Environment Court for the last 20 years period from 2003 to 2022 is 576 and 592
respectively.117 The average number of cases filed per year, disposal and pending
of the cases are the reflection of the fact that the Courts are not able to function
properly in their full capacity. Moreover, the number of cases filed in each year
from 2012-2016 fluctuates within a range of four to twenty-eight cases, which
shows an overall decreasing trend, which indicates peoples’ no confidence in the
existing court system and adjudication of the environmental grievances.118
115
Office of the Environment Court, Chittagong.
116
See, Table 1 Column 3, and Table 1,Column 3
117
See, Table 1 Column 3, and Table 1,Column 3.
118
Solaiman Salman, ‘Environment Court Inactive for Lack of Cases’, The Daily Sun (Dhaka, 5
June 2017)<http://www.daily-sun.com/printversion/details/231486/Environment-court-inactive-
for-lack-of-cases> accessed 4 November 2020.
 Environment Court and Special Magistrate Court in Bangladesh 103

During the period from 2003 to 2022, number of cases 463 and 352were
disposed by Dhaka and Chittagong Environment Courts respectively.119 The
average disposal per year is 23 in Dhaka and 17 in Chittagong Environment
Courts. The number of pending cases, as of December 2022, in Dhaka and
Chittagong Environment Courts are 113 and 243 respectively.120 For lack of cases,
Environment Court Judges, who are both Joint District and Joint Session Judges,
mostly hear their regular civil and criminal cases. Due to pressure of regular duties
they are not able to focus on special duties and hence they hear environmental
cases on a particular day in a week according to their convenience.

4.7 Bar to Receiving or Taking Cognizance of Environmental Cases

The experiences of ECTs in different countries suggest that they shall be
independent of political or executive interference or pressures in adjudication.121
The independence of a judicial body is a sine qua non for ensuring the rule
of law.122 Independence of the court also garners public credibility and trust.
It gives people greater willingness and confidence to bring their claims to the
court.123Environment Courts and Special Magistrate Courts in Bangladesh lack
judicial independence regarding the court’s jurisdiction to receive environmental
cases or take cognizance of environmental offenses directly from the
aggrieved party, and restrict the people’s access to environmental remedies and
justice.124Environment Court and Special Magistrate Court can receive civil cases
or take cognizance of environmental offenses respectively only upon the written
report of the Inspector from DoE approving such filing or taking cognizance of
cases.125As an exception to this general rule, the court may directly receive a case
from an aggrieved private person without such prior approval from the DoE, but
the private litigant must satisfy the Court or the Magistrate that the inspector has
not taken any necessary steps within sixty days of request by the aggrieved person
and that the Court or Magistrate has sufficient reasons for receiving the case or
taking cognizance of the complaint after hearing the Inspector.126There is also a
provision for filing an FIR in the police station as regards environmental offenses,
but no individual who suffers environmental injury can file the FIR. The Director

119
See, Table 1 Column 5, and Table 1,Column 5.
120
Ibid
121
Pring (n 13) 45
122
Secretary, Ministry of Finance, Government of Bangladesh vs. Mr. Md. Masdar Hossain &
others 52 DLR (AD) 82
123
Pring (n 13) 45
124
Environment Court Act 2010, s 6(3), 7(4); Preston, (n 8) 368
125
Environment Court Act 2010, s 6(3), 7(4)
126
Ibid
104 Dhaka University Law Journal, Vol. 35 (1), 2024

General on his behalf is the authority under law to file FIR.127 Therefore, the DoE
having “complete control as a gate keeper” is the “major obstacle to access to
environmental justice” for the common people as well as the cause for the low
caseload of the Environment Courts.128Such restriction on the access to justice
also contradicts the equality protection clause and right to a fair trial guaranteed
under the Bangladesh Constitution.129 This legal restriction is derogatory to
the constitutional pledge of both separation of powers and independence of
the judiciary in light of constitutional provisions and the settled constitutional
jurisprudence on independence of the judiciary.130It is found that effective and
strong ECTs usually possess open and broad locus standi as far as practicable to
include ‘any person’.131 Under the Environment Court Act 2010, only a personally
aggrieved person has the locus standi, and such locus standi is even restricted
requiring the prior approval of DoE to seek remedy in the Court.

The present research finds that there is no single individual case in Dhaka
or Chittagong Environment Court and nowhere in the Special Magistrate Court
which has been filed without the report of the Inspector from DoE.132 This fact
certainly undermines judicial independence and creates a sense of apathy among
the public for not going to the Courts for justice. It is unanimously opined by
the judges of the Environment Court interviewed that the public in general
is reluctant to file environmental cases as they do not want to go through the
lengthy and cumbersome procedure of getting approval from the DoE for filing
cases. In contrast, the National Green Tribunal in India is empowered to take
on environmental cases against the government freely and independently and
even suo motu.133Both the Environment Court in New Zealand,134the Land and
Environment Court of New South Wales135are independent to take cases from

127
Environment Court Act 2010, s 6(1)
128
Preston (n 8) 368
129
Mohammad Golam Sarwar, ‘Making a Case for Environmental Rule of Law in Bangladesh’,
The Daily Star (8 June, 2021) <https://www.thedailystar.net/law-our-rights/news/making-case-
environmental-rule-law-bangladesh-2106989> accessed25 January 2024
130
Constitution of Bangladesh, art 22; Secretary, Ministry of Finance, Government of Bangladesh
vs. Mr. Md. Masdar Hossain & others 52 DLR (AD) 82
131
Pring (n 13) 51
132
Court Office of Dhaka and Chittagong Environment Court
133
Pring (n 13) 35
134
Ceri Warnock, ‘Reconceptualizing the Role of the New Zealand Environment Court’ (2014)
26(3) Journal of Environmental Law, 507–518, <https://doi.org/10.1093/jel/equ030> accessed
23 June 2023
135
T Naughton, ‘The limits of jurisdiction and locus standi in the Land and Environment Court
of New South Wales’,65(3), Australian Law Journal149–160., <https://search.informit.org/
doi/10.3316/agispt.19911043> accessed on 23 June 2023
 Environment Court and Special Magistrate Court in Bangladesh 105

the aggrieved persons directly. The National Green Tribunal of India136 is also
independent by mandate but it occasionally asserts its jurisdiction suo motu.137

4.8 Workload of Judges

As we see that the judges for all environmental courts in foreign jurisdictions
are appointed exclusively to perform the functions of the environmental court. But
in Bangladesh judges for environmental courts are appointed not independently/
exclusively but are assigned to function as judge for environment court in addition
to their regular duties of a judge. Because the Environment Court Act, 2010 allows
the Government to appoint Judges for Environment Courts and Magistrates in
addition to their original judicial functions as Joint District/Session Judge or
Magistrates.138 In reality when the Judge who is assigned for the environment
court seems to be over burdened with the cases of his regular court as Joint
District/Session Judge or as Magistrate, and has little time to act efficaciously
as to environmental matters. It may be argued that the present low caseload due
in the environment courts are because the DoE controlling the filing of cases as
gatekeepers.

4.9 Procedural Flexibility

Environment Courts and Special Magistrate Courts in Bangladesh have little
option to act with its flexibility due to both existing laws and judicial practices.
The Environment Court Act 2010 prescribes procedures for filing a case, and
investigation, search, seizure, etc. which are either very complex or ambiguous in
nature.139 To make matters worse, the Act 2010 also prescribes that the Courts are
to follow the Code of Civil Procedure 1908 and the Code of Criminal Procedure
1897 in civil and criminal cases respectively.140 Therefore, Environment Courts
and Special Magistrate Courts are under pressure to follow the complex and time-
consuming legal procedures.

A flexible environment court can better serve its purposes and can effectively
dispose of the cases. The Court is flexible when it has the power to make and
adopt its own rules relating to procedures, evidence, and remedies. This flexibility
is considered a valued unique practice.141 Where Environment Court has such
flexibility, they can use ‘inventive’ and ‘problem solving’ approaches to dispute

136
National Green Tribunal Act, 2010, (Ind)s 14
137
Gill (n 98)153
138
Environment Court Act 2010, ss 4 and 5 respectively
139
Environment Court Act 2010, ss 6,7, 11,12, 14
140
Environment Court Act 2010, s 14(1), (6)
141
Pring (n 13) 45
106 Dhaka University Law Journal, Vol. 35 (1), 2024

resolution.142In 2010 the Philippines Supreme Court enacted “Rules of Procedure

for Environmental Cases” which is considered one of the best models of procedural
rules in the world.143 The rules provide detailed and comprehensive procedures
for civil and criminal environmental proceedings.144 It adopts mediation as ADR
in its process.145 It also provides for writ matters in environmental issues.146
The rules also are modern in the sense that they allow the court to admit digital
evidence, like photography, videos, and similar evidence.147 The Rules allow the
court to apply even ‘the precautionary principle’ in case of deciding a case on
inadequate scientific certainty on potential environmental harm.148 NGT in India
has broad power to make its own rules of procedure.149The Tribunal is not bound
by the Code of Civil Procedure 1908 or the Indian Law of Evidence 1960 and is
mostly governed by the principles of natural justice.150 NGT uses modern digital
tools, i.e., email, fax, etc. to communicate with the parties which allows them
to respond promptly. The Tribunal even entertains petitions which are made
through letters sent to Tribunal addresses. Instances of substantial environmental
damage are thus coming before the Tribunal easily.151Like NGT, the Environment
Court in New Zealand can set its own rules of procedure and may conduct its
proceedings “without procedural formality where this is consistent with fairness
and efficiency.”152 Further, the NZ Environment Court is “not bound by the rules
of law about evidence that applies to judicial proceedings”, and “may receive
anything in evidence that it considers appropriate to receive.”153The procedure
of NSW Land and Environment Court is governed by several procedural laws,
of which the principal one is Land and Environment Court Government Rules
2007.154 The procedural rules are broad and flexible and have different procedures
for different classes of suits.155
142
Ibid 45
143
Ibid 27; see also Bret C. Birdsong, ‘Adjudicating Sustainability: New Zealand’s
Environmental Court’ (2002) 29 Ecology Law Quarter 1
144
Rules of Procedure for Environmental Cases, see rr 2-17
145
Rules of Procedure for Environmental Cases, r 3, s 3
146
Rules of Procedure for Environmental Cases, rule 7, 8
147
Rules of Procedure for Environmental Cases, r 21
148
Rules of Procedure for Environmental Cases, r 20
149
National Green Tribunal 2010, (Ind), s 19
150
Ibid
151
National Green Tribunal, (n 99)
152
Resource Management Act 1991 (NZ), s 269
Ibid, s 276
153

154
Land and Environment Court of NSW, ‘Practice and Procedure’, <https://lec.nsw.gov.au/
practice-and-procedure/legislation.html> accessed25 January 2007.
155
Preston, (n 8) 391
 Environment Court and Special Magistrate Court in Bangladesh 107

4.10 Combination of Legal and Technical Skills of the Judges

Environmental issues demand special knowledge and expertise. Creating
an environmental court with both judges and non-legal experts from diverse
professions, such as, scientists, engineers, economists, planners, academics etc.
is a commonly adhered best practice.156 This brings two essential skills into the
adjudication process – legal capacity and scientific-technical know-how.157 In
multifaceted environmental cases, technical expertise is very crucial to determine
causation, damages, and future impacts.158It is even argued that the evaluation
of scientific evidence by judges who are ‘technically illiterate’ is ‘dangerously
unreliable’.159But the constitution of Environment Courts and Special Magistrate
Courts in Bangladesh is such that it does not accommodate technical and scientific
knowledge. Judges are appointed from the regular officers of the rank of Joint
District Judge, and Magistrates respectively irrespective of their knowledge
of environmental matters. Even no special training is given on environmental
law or science after the appointment.160 Just a course on environmental law has
been recently added to the training manual of the foundation training courses
for entering judges conducted by the Judicial Administration Training Institute.161
Judges and Magistrates often find themselves in a very difficult position to rely
on pieces of evidence put forward by the lawyers of the parties for not having
sufficient technical knowledge. The opportunity to call for expert witnesses is very
cumbersome and costly and as such rarely called. Of not having adequate technical
and scientific skills, judges apply environmental laws mechanically which results
in the dismissal of cases on technical or procedural grounds only.162 Therefore, it
is suggested that a body of expert panels composed of persons having knowledge
and experience in complex scientific issues in environmental cases is a sine qua
non for appropriate and effective dispensation of environmental litigation.163

The successful environmental courts, i.e., Land and Environment Courts

in New South Wales, Australia; Environment Court in New Zealand; National
156
Ibid, 381-382
157
Pring (n 13) 46
158
George Rock Pring (n 9) 55
159
Md. Shahidul Islam, ‘Scientific Uncertainty and Need for Specialized Environment Court in
Bangladesh: A Lesson from Australia, New Zealand and India’ 19 (2) Bangladesh Journal of
Law 136, citing Brian J. Preston, ‘Benefits of Judicial Specialization in Environmental Law:
The Land and Environment Court of New South Wales as a case study Case Study’, 29 Pace
Environmental Law Review 396 (2012) <https://digitalcommons.pace.edu/pelr/vol29/iss2/2>
accessed 20 March 2022
160
Faruque (n 17) 342
161
See, Bangladesh Judicial Training Manual
162
Ibid, Faruque(n 17) 344.
163
Ibid, Md. Shahidul Islam (n 159) 157.
108 Dhaka University Law Journal, Vol. 35 (1), 2024

Green Tribunal in India combine legal, scientific, and technical knowledge

in environmental areas, as well as experiences and skills in the related field in
its decision-making process. The judges of these courts are a mix of judicial
officers and technical experts drawn from relevant professions.164 In the Land and
Environment Courts in New South Wales, Australia, the Bench is constituted of
both judges and commissioners. A person below 70 years of age who holds or
has held a judicial office or an Australian lawyer of at least 7 years standing may
be appointed as a judge of the court.165Any person not a judicial officer but has
special expertise in the specific areas required under the Land and Environment
Act, 1979 can hear and dispose of matters under their jurisdiction independently
and also in certain matters specified in the Act assists the judge of the court.166The
jurisdictions of the court are classified,167 and they are made exclusive to the judges
or commissioners (expert members) according to the suitability of matters with
the judges’ or commissioners’ professional expertise and experiences.168Similar to
the Court of Australia, the Environment Court in New Zealand consists of both
judges and commissioners,169 where the commissioner is the non-judicial expert
member of the court. Distinct to the Land and Environment Court in New South
Wales; in the Environment Court of New Zealand, one environmental Judge and
one Environmental Commissioner sitting together constitute the quorum of the
court, though in certain cases only a single judge may constitution the quorum.170
In India, National Green Tribunal is constituted of both Judges not below the rank
of High Court Judges and expert members having high standard of experiences
and expertise requiring, degree in science, fifteen years of experience of which
five years must be relating to some environmental specialization.171Without
such combination, it is hard to come to an appropriate conclusion for a court
in environmental disputes, particularly, when they involve results of scientific
experiments, scientific data, and technological uncertainty.172
164
See, Land and Environment Court Act 1979; Resource Management Act 1991; National Green
Tribunal Act 2010; see generally Md. Shahidul Islam, (n 159) 141-152.
165
Land and Environment Court Act, 1979, (Aus), s 5.
166
Ibid, (Aust) s 12(2AB).
167
For details, see Ibid, (AUS), ss 16-21C.
168
For example, the law bars the jurisdiction of the Commissioner in a case relating to the Aboriginal
Land Rights Act 1983 where he has no suitable knowledge on the land rights for Aborigines and
qualifications and experience suitable for the determination of disputes involving Aborigines. see
Land and Environment Court Act 1979, s 30(2A), (2C).
169
Resource Management Act, 1991 (NZ), s 248.
170
Resource Management Act, 1991 (NZ), s 265.
171
National Green Tribunal Act, 2010, (Ind) s 5, 6.
172
Lord Woolf, in his Garner lecture to UKELA, on the theme ‘Are the Judiciary Environmentally
Myopic ?’(1992) 4(1) Journal of Environmental Law 1 <https://cla.auburn.edu/envirolitigators/
introduction-to-the-enviro-litigators/law/concepts-and-processes/environment-courtstribunals-
problems-of-complex-technology/> accessed 26 March 2022.
 Environment Court and Special Magistrate Court in Bangladesh 109

4.11 Cooperation among Concerned Governmental Institutions

The research finds that there exists a considerable lack of cooperation on the
part of the DoE to assist the Court in the disposal of cases. Such lack of cooperation
often occurs partially because a conflict of interest exists between the executive
who works to secure governmental interest, and the judiciary is principally
constituted to serve the public interest and check the executive. It also happens
because of the scarcity of workforce and logistic support of the Department and
unwillingness and not having an environmentally sensitive attitude on the part of
the Officers. In Bangladesh Environment Courts and Special Magistrate Courts
often find a lack of evidence or delayed investigation report from the Inspector of
the Department. In such cases, the law provides no power for Environment Courts
and Special Magistrate Courts to make them accountable, except for making an
order for further investigation.173

4.12 Availability of Logistics and Resources

An effective environmental court has an adequate budget, logistic support,
and an adequate number of court staff. Greater political resolve and mandate
must exist visibly to adequately fund and provide the court with the facilities.174In
Bangladesh Environment Courts and Special Magistrate Courts are functioning
with inadequate infrastructural facilities and logistic support. They do not have
their courthouses. Both the Environment Courts are set up in the courtroom of the
concerned Joint District Judges and the Magistrates.

5. Special Magistrate Court in Narayanganj: Lessons Learned

Establishment of the Special Magistrate Court in Narayanganj under
the Chief Judicial Magistrate Court is unique as one Judicial Magistrate was
specifically assigned to carry responsibility of the Special Magistrate Court under
the Environment Court Act, 2010.175 According to the Government Notification
dated 22/11/2011, all Magistrates of the First Class or Metropolitan Magistrates
are already appointed as Special Magistrates in each district or metropolitan area
respectively.176Since the Notification provides general powers to all Magistrates of
First Class in a District to try environmental offenses under environmental laws,
thus creating a general court, it is in contrast to the objective of the Environment
Court Act,2010 as the Act inherently aims to create a special court. The case has
been different in Narayanganj since the duty of the Special Magistrate Court is
173
Environment Court Act, 2010, s 14(2).
174
Ibid, Pring (n 9) 22.
175
Office order, Chief Judicial Magistrate Court, Narayanganj, Order no. 09/2021dated 26 January
2021।
176
Ministry of Law, Justice and Parliamentary Affairs, notification dated 22/03/2011, reference-
wePvi-1/4wc-1/2008-13
110 Dhaka University Law Journal, Vol. 35 (1), 2024

specifically assigned to one particular Judicial Magistrate under the terms of

the Government Notification of 22/11/2011. The Chief Judicial Magistrate in
Narayanganj, Ms. Farhana Ferdous made an office order (order no. 09/2021) dated
26 January 2021 by exercising her power of distribution of business under section
17(2)/11(3), Code of Criminal Procedure, 1898, assigning Mr. Kowsar Alam, the
Senior Judicial Magistrate to function as ‘Special Magistrate Court’ in addition to
his regular judicial responsibility.177 The specific assignment of responsibility of
the Special Magistrate Court to one particular Judicial Magistrate has accelerated
access to environmental justice in the district. Unlike in most of the districts,
the Court has been successful in working in collaboration with the Narayanganj
branch of DoE.

The Special Magistrate Court has shown outstanding judicial responsibility

to bring to book environmental offenders and serve environmental justice under
numerous environmental laws of Bangladesh. The Court acts in the prevention
of industrial pollution, use of polythene bags, illegal brick kilns, private hospital
waste disposal mismanagement, etc. The Court has ensured compliance with
environmental laws by taking legal measures, for instance, stoppage orders,
injunctions, directions to take environmental clearance certificates, directions to
establish Effluent Treatment Plant (ETP) in industrial projects, etc. The Court has
once initiated a compliance case under section 8(1) of the Environment Court
Act, 2010 for continuing the illegal brick kilns in violation of the court’s pervious
order for closure.178 Several polluters were arrested in pursuance of arrest warrant
in environmental cases and sent to interim custody by the Court rejecting the
bail.179 The accused were granted bail after they committed themselves in writing
not to continue with the environmental offenses they were arrested.180 The Court
has successfully conducted mobile court as per the law under section 12(11)
of the Environment Court Act, 2010 and prevented environmental pollution by
illegal brickfields.181So far, the Court’s success in enforcing environmental laws
and ensuring compliance with the environmental standards and requisites is quite
promising. From its constitution on 26 January 2021 to 30 May 2023, a total of 84
cases were filed. The number of filed cases every year is 6 cases in 2021, 71 cases
in 2022, and 7 cases in 2023 (up to 30 May). The Court has disposed of 6 cases
in 2021, 52 cases in 2022, and 3 cases in 2023. The total disposed cases is 61 and
the disposal rate is 73%.182 As per law, the Court has recovered a fine of an amount
177
Chief Judicial Magistrate Court, Narayanganj, order dated 26/01/2021, reference-
wm‡RGg(Gb)/2021-26(18)
178
Interview with the Special Magistrate in Narayanganj (18 June 2023).
179
Ibid.
180
Ibid.
181
Ibid.
182
Court Office of the Special Magistrate Court, Narayanganj dated 18 June 2023.
 Environment Court and Special Magistrate Court in Bangladesh 111

one crore sixty-four lac and ninety thousand taka (1,64,90,000/-).183 It is found
that the Special Magistrate Court in Narayanganj has been successful in having
a visible impact on the area in creating environmental awareness among the
public in general and ensuring environmental rule of law. Later, several districts,
for instance, Feni, Habiganj, and Munshiganj Districts adhered to the model of
Narayanganj Special Magistrate Court.

6. Proposals for Reformation of Environment Court and Special Magistrate

Court
It is found that ECTs in different countries are unique and distinct to their
cultural, societal, governmental, legal, and fiscal contexts.184 Therefore, there is
not a single best model of an ECT applicable to every place but there are several
common best practices as discussed above across the ECTs that a particular ECT
may adopt. Therefore, what formation of a specialized environment court will
serve better in a country needs to be examined in consideration of the country’s
socio-politico and legal factors such as political will, available budget, level of
public demand for environmental justice, the form of government, availability of
environmentally trained judges and lawyers, etc.185

In consideration of the discussion made above, the article suggests the

following reform proposal to make the Environment Court and Special Magistrate
Court efficient and effective:
i. The Environment Court Act 2010 must be revised, and the following
issues must be incorporated into the revised Act:
a. The provision for authorization from the DoE for filing cases must
be repealed.
b. Separate flexible and broad rules of procedure should be adopted.
ii. The number of Environment Courts must be increased immediately,
at least, one in each district and one Environmental Appellate Court in
each division. One or two Magistrates shall be appointed exclusively
as Special Magistrate Court for environmental cases of a criminal
nature in each district following the model of the Narayanganj Special
Magistrate Court.
iii. Judges and Magistrates shall be appointed exclusively as
environmental judges. He must not be busy with other judicial
responsibilities.

183
Ibid.
184
Ibid, Pring (n 93)11.
185
See generally, Ibid, Pring (n 9).
112 Dhaka University Law Journal, Vol. 35 (1), 2024

iv. Measures should be taken to promote the environmental legal and

scientific knowledge and expertise of the judges and magistrates of
the Environment Court and Special Magistrate Court. It can be done
through continuous professional training of judges in environmental
laws and knowledge.
v. Government Lawyers (GP, PP) shall also be trained with the necessary
skills to handle environmental cases and evidence.
vi. The courts should be provided adequate resources, technological
devices, court staff, and logistic support.

5. Concluding Remarks
Development in establishing ECTs is ‘dramatically changing the playing field
for environmental justice around the world’186. Bangladesh is one of the earliest
countries that set up specialized environment courts in the form of Environment
Courts and Special Magistrate Courts. The article concludes that due to the legal
barriers, the Environment Courts and Special Magistrate Courts will hardly
be able to play their due role to protect the environment and ensure access to
environmental justice in the country. First and foremost, the legal requirement of
prior approval from the DoE to file an environmental case or a complaint should
be withdrawn and unhindered access to environmental justice shall be ensured.
Then, other reforms recommended herein will make the court effective and
efficacious. It is highly desired that the recommendations for reformations will get
the due attention of the policymakers and existing courts should be empowered to
deal with environmental cases and ensure environmental justice.

186
Ibid, George Rock Pring (n 9) 1