Introduction

Environmental harm is an under-addressed matter and legal violation, evolving over the last few decades from a mere disease to a serious issue in Bangladesh. Article 18A of the Constitution of the People’s Republic of Bangladesh states that the present and future citizens have the right to environmental protection but this right is not enforceable by the courts due to the restriction provided by its article 8(2).

While directing other laws of Bangladesh, the Constitution of Bangladesh neither guarantees the right to a safe and sound environment nor provides remedies without extending fundamental rights under Article 32. Though the right to a healthy environment has been recognised indirectly as a fundamental right for the people affected by environmental harm, implemented through the case of Dr Mohiuddin Farooque vs Bangladesh, but also remains practically unenforceable due to gatekeeping mechanism.

Overview of Gatekeeping Mechanism

Gatekeeping mechanism refers to a statutory mechanism where an environmental complaint is passing through specified administrative procedures that involves the Department of Environment and before the establishment of a judicial proceedings. The Bangladesh Environmental Conservation Act 1995,[Secondary or third-party websites should be replaced with the relevant government website or official legal database] and the Environment Conservation Rules 1997 legislate the functions of environmental rights, but again, the gatekeeping mechanism such as the double-checking process of the Department of Environment has made the whole process lengthy and uncertain. When an aggrieved individual is a victim of environmental harm, he or she can only file a suit after 60 days, after failure or ignorance of the Department of Environment. These initial 60 days are a phase of prior authentication by the Department of Environment, known as the “gatekeeper” mechanism. Section 5 of the Bangladesh Environment Court Act, 2010 states also clearly that after the process of the Department of Environment, the aggrieved party shall be allowed to bring a case in the court. Therefore, it is clear to say that the gatekeeper mechanism is one of the failures of this act which makes the process restrictive, complex, and lengthy for victims.  This gatekeeper mechanism is the statutory “bar” that prevents direct filing at a police station or environment court; complaints must pass through the Department of Environment inspection and senior-officer approval, and the procedure significantly hinders justice regarding environmental harm and makes the process unnecessarily complicated.

Proposed Reforms

The lawmakers should take proper steps to address this issue by which victim can receive remedy within reasonable time. Abolishing the prior authorization system of the Department of Environment, the court can adopt the “Notice and Response” [This is one of the strongest recommendations, it needs to be expanded slightly that how this theory works] theory by amending the Environment Court Act 2010, so that an aggrieved person can file to the court. Also, to avoid frivolous and vexatious litigation, the Department of Environment can intervene voluntarily. The 60-days barrier should also be reduced to 30 days, and in exceptional cases, another 30 days can be added with the approval of the monitoring body, as the double-checker process only complicates the process and bars instant justice. Therefore, the lawmakers should take the steps to reform the Environment Court Act, 2010.

Conclusion

It is high time to take remedial measures to reduce environmental harm, considering the loopholes and major access barriers such as gatekeeping mechanism. For that, a collective initiative should be taken, which can be introduced through creating public awareness. Not only gatekeeping mechanism bars the justice system but also bars other factors such as appointment of adequate and trained judges, proper funding system, establishment of specialized environmental court, effective ADR mechanism, introducing the suo-moto and E-justice system, provisions regarding victim protection and adequacy of punishment can help in this situation to ensure justice. [Some recommendations are disconnected from main research question. They all valid environmental justice issues but the blog is about gatekeeping mechanisms.

The implication of environmental law should be more practical than theoretical. There should be enough scopes to ensure stakeholder’s accountability in monitoring environmental harm as well as citizens should also be more aware and protective about their rights and responsibilities.