Judicial recognition of environmental rights
Since the introduction of UDHR (1948), the whole world became divided into capitalist and socialist blocks. The former focused on CP rights, while the later on ESC rights. This division was recognised in 1966 by creating two core covenants namely, ICCPR and ICESCR. Later from 1970s, various international instruments began to pop-up for protecting a third generation of rights namely environmental rights.
The tension arose as to the mechanism of enforcement of environmental rights; which of the mechanisms (for CP or ESC rights) is more suitable. Moreover, the inclusion of right to environment into the contents of right to life has created a serious anomaly that whether the environmental rights shall be enforceable judicially or shall be kept at the wish of the State. Therefore, it is high time that we defined and determined the extent of this right and also the enforcement-mechanism for that.
Development of Environmental Rights
In 1970s, various international instruments obliged their signatories to protect environment and natural resources. The Stockholm Declaration 1972 declared that, "Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being, and he bears a solemn responsibility to protect and improve the environment for present and future generations". It was for the first time that a jurist named Karel Vasak introduced the idea of three generations of rights, namely, CP rights, ESC rights and collective rights (related to conservation of environmental resources, etc.). The division of human rights into three generations was initially proposed in 1979 by this Czech jurist at the International Institute of Human Rights in Strasbourg. He used the term at least as early as November 1977. Vasak's theories have primarily taken root in European law.
Environmental Rights in Bangladesh
Right to a healthy environment, despite being third generation right, is now part of the right to life under Article 32 of the Constitution. The inclusion of this right into the elements of right to life was made by judicial pronouncements in 'FAP20 Case' and then in 'MetroMakers Case'. The former one is pre-Article 18A and the latter one is post-Article 18A. The elements of a healthy environment and protection thereof embodied in Article 18A are not enforceable judicially (as provided under Article 8 (2) read with the interpretations provided in 'Kudrat-E-Elahi case'), against a violation or non-protection measures on the part of the Government, for being part of Fundamental Principles of State Policy (FPSP). The term 'healthy environment', having not been defined in case-laws, contains every single element of the environment as fundamental right through extended meaning of right to life and thereby ensures every protection-measure under Articles 26 (2), 44 (1) read with 102 (1).
Effect of Article 18A in the Constitution
The 'FAP20 Case' lost its validity, in terms of broader interpretation of right to life to include environmental right, after introduction of Article 18A as a mere non-enforceable FPSP; and the 'MetroMakers Case' dictating the same interpretation went beyond the jurisdiction and led to enforcement of an FPSP in clear violation of standard set out in Article 8 (2) read with the judgment of 'Kudrat-E-Elahi Case' and therefore is unwarranted. Apart from theoretical discourse, the practical detrimental consequences of such interpretation are that it does and will hamper every development measures taken or to be taken by the Government. The development, being undeniable necessity, may be in clear conflict with the environmental protection; to which the principle of 'Sustainable Development' offers a viable solution in terms of allowing both the development and environmental protection to run simultaneously, not dichotomously
Irony of Environmental Rights
Consequently, there arises a tension as to inclusion of 'environmental rights' within the sway of right to life for at least two reasons, firstly, there is no demarcation neither in laws nor in case-laws as to how much 'healthy' is to be considered as protection of health of environment and what would be the meaning of 'healthy' or 'clean' environment, and secondly, the right to get basic necessities of life including food, cloth, shelter, medication and education as provided under Article 15, being FPSP, is not judicially enforceable against any failure of the Government to ensure them neither in the Constitution itself nor in any judicial precedent, however, the environmental right has been made fully enforceable.
Seeking Justification behind the Inclusion
One can argue that extended meaning of right to life to include environmental rights is justifiable for these rights are recognized through the doctrine of 'public trust' which simply means "The Government stands in a fiduciary relationship to the citizens in respect to the property the State owns", and the doctrine of 'intergenerational trust' and 'intergenerational equity'. Furthermore, wider interpretation with a view to compelling the State to ensure fundamental rights is always in favour of public interest. Such argument is not tenable because of the fact that it went beyond jurisdiction provided under Article 8 (2) and that it sought to protect each and every content of environment from being hampered by development-measures, which is simply not possible, because the development is to be attained at the cost of environment.
The Possible Way-outs
There should be a crystal-clear definition of healthy environment and the elements thereof; and a definite demarcation between seriously destructive actions and less harmful undertakings to ensure healthy life of environment and human beings and at the same time to avoid prevention of development; and also a more adaptable constitutional interpretation in this regard in order to withering away any apparent conflict amongst the spirit of Articles 8 (2), 18A and 32. For the purpose, environmental elements may be divided into two parts viz, elements that shall always be kept beyond infliction, through economic action, for ensuring right to life; and elements that may be infringed for the sake of greater benefit and supreme need of the State i.e. financial growth through sustainable development-measures taken from time to time.
Asadullahil Galib is a student of law at University of Dhaka