Lawyer Training Workshop
Public Interest Environmental Law
Anuradhapura, Sri Lanka
June 25th-29th, 2003
Workbook of Case Materials
This workshop has been funded in part by Grant No. S-ECAPRE-03-GR-026 (DD)
of the United States Bureau of Educational and Cultural Affairs
CONSTITUTIONAL PROVISIONS
Constitution of Bangladesh
PART III - FUNDAMENTAL RIGHTS
Article 31. Right to protection of law.
To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
Article 32. Protection of right to life and personal liberty.
No person shall be deprived of life or personal liberty save in accordance with law.
Article 44. Enforcement of fundamental rights.
(1) The right to move the [High Court Division] in accordance with [clause (I)] of article 102 for the enforcement of the rights conferred by this Part is guaranteed.
PART VI – THE JUDICIARY
Article 102. Powers of High Court Division to issue certain orders and directions, etc.
(1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution.
Constitution of India
Part III - Fundamental Rights
Article 21. Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. …
Part IV - Directive Principles of State Policy
Article 48A. Protection and improvement of environment and safeguarding of forests and wild life
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country
Part IVA - Fundamental Duties
Article 51A. Fundamental duties
It shall be the duty of every citizen of India …
- (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
Part VI - The States
Article 226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. …
Constitution of Nepal
PART III – FUNDAMENTAL RIGHTS
Article 12. Right to Freedom:
(1) No person shall be deprived of his personal liberty save in accordance with law, and no law shall be made which provides for capital punishment.
Article 23. Right to Constitutional Remedy:
The right to proceed in the manner set forth in Article 88 for the enforcement of the rights conferred by this Part is guaranteed.
PART XI – THE JUDICIARY
Article 88. Jurisdiction of the Supreme Court:
(1) Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and extraordinary power shall rest with the Supreme Court to declare that law as void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution.
(2) The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or to settle the dispute. For these purposes the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including habeas corpus, mandamus, certiorari, Prohibition and quo warranto: ...
Constitution of Pakistan
PART II - Fundamental Rights and Principles of Policy
Article 9.
No person shall be deprived of life or liberty save in accordance with law.
Article 184.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.
Article 199.
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11.
Constitution of Sri Lanka
CHAPTER III – FUNDAMENTAL RIGHTS
Article 11.
No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 12.
(1) All persons are equal before the law and are entitled to the equal protection of the law. ...
Article 13(4).
No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention, or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment.
Article 14.
(1) Every citizen is entitled to-
(f) the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language;
(g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise;
(h) the freedom of movement and of choosing his residence within Sri Lanka; and
Article 17.
Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entered under the provisions of this Chapter
CHAPTER VI - DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES
Article 28.
The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations and accordingly it is the duty of every person in Sri Lanka- ...
(f) to protect nature and conserve its riches.
Article 29.
The provisions of this Chapter to not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court or tribunal.
CHAPTER XV – THE JUDICIARY
Article 126. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.
(2) Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by not less than two Judges.
(3) Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorai, prohibition, procedendo, mandamus or quo warrnto, it appears to such Court that there is prima-facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court.
(4) The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundamental right or language right.
(5) The Supreme Court shall hear and finally dispose of any petition or reference under this Article within two months of the filing of such petition or the making of such reference.
STATUTORY PROVISIONS
Bangladesh -- Environment Conservation Act, 1995 (selected sections)
2. Definitions.-
In this Act, unless there is anything contrary in the subject or context-
"conservation of environment" means improvement of the qualitative and quantitative characteristics of different components of environment as well as prevention of degradation of those components; [Ref: Clause (f).]
"Department" means the Department of Environment established under section 3 of this Act; [Ref: Clause (a).]
"Director General" means Director General of the Department; [Ref: Clause (m).]
"ecosystem" means the inter-dependent and balanced complex association of all components of the environment which can support and influence the conservation and growth of all living organisms; [Ref: Clause (g).]
"environment" means the inter-relationship existing between water, air, soil and physical property and their relationship with human beings, other animals, plants and micro-organisms; [Ref: Clause (d).]
"environment pollutant" means any solid, liquid or gaseous substance which causes harmful effect to the environment and also includes heat, sound and radiation; [Ref: Clause (e).]
"hazardous substance" means a substance, the chemical or biochemical properties of which are such that its manufacture, storage, discharge or unregulated transportation can be harmful to the environment; [Ref: Clause (j).]
"occupier", in relation to any factory or premises, means a person who has control over the affairs of the factory or the premises, and in relation to a product, means the person in possession of the product; [Ref: Clause (c).]
"person" means a person or group of persons, and includes any company, association or corporation, whether incorporated or not; [Ref: Clause (h).]
"pollution" means the contamination or alteration of the physical, chemical or biological properties of air, water or soil, including change in their temperature, taste, odor, density, or any other characteristics, or such other activity which, by way of discharging any liquid, gaseous, solid, radioactive or other substances into air, water or soil or any component of the environment, destroys or causes injury or harm to public health or to domestic, commercial, industrial, agricultural, recreational or other useful activity, or which by such discharge destroys or causes injury or harm to air, water, soil, livestock, wild animal, bird, fish, plant or other forms of
life; [Ref: Clause (b).]
"rule" means rule made under this Act; [Ref: Clause (k).]
"use", in relation to any material, means manufacturing, processing, treatment, package, storage, transportation, collection, destruction, conversion, offering for sale, transfer or similar activity relating to such material; [Ref: Clause (i).]
"waste" means any solid, liquid, gaseous, radioactive substance, the discharge, disposal and dumping of which may cause harmful change to the environment; [Ref: Clause (l).]
9. Discharge of excessive environmental pollutant etc.-
(1) Where, due to an accident or other unforeseen incident, the discharge of any environmental pollutant occurs or is likely to occur in excess of the limit prescribed by the rules, the person responsible and the person in charge of the place of occurrence shall take measures to control or mitigate the environmental pollution.
(2) The persons referred to in sub-section (1) shall immediately inform the Director General of the occurrence or the likelihood of such occurrence as mentioned in that sub-section.
(3) On receipt of information under this section with respect to the accident or other incident, the Director General shall take necessary remedial measures to control or mitigate the environmental pollution, and the said person shall be bound to render assistance and co-operation as required by the Director General.
(4) The expenses incurred with respect to remedial measures to control and mitigate the environmental pollution under this section shall be payable to the Director General and may be realized from the persons referred to in sub-section (1) as public demand.
12. Environmental Clearance Certificate.-
No industrial unit or project shall be established or undertaken without obtaining, in the manner prescribed by rules, an Environmental Clearance Certificate from the Director General.
16. Offences committed by companies.-
3[(1) Where a company violates any provision of this Act or fails to perform its duties in accordance with a notice issued under this Act or the rules or fails to comply with an order or direction, then the owner, director, manager, secretary or any other officer or agent of the company, shall be deemed to have violated such provision or have failed to perform the duties in accordance with the notice or failed to comply with the order or direction, unless he proves that the violation or failure was beyond his knowledge or that he exercised due diligence to prevent such violation or failure.