Law Review
An analysis on the draft NRCC Act 2020
The National River Conservation Commission recently published the Draft National River Conservation Commission Act 2020 soliciting opinions on the Bill. The 2020 Bill is aimed at replacing the currently applicable legislation in this regard, namely the National River Conservation Commission Act 2013. The new draft containing 108 sections would be a substantial improvement to the existing laws and would incorporate provisions which address the increasing concerns on river encroachment and pollution.
The Draft Act has been formulated following the verdict of the Supreme Court conferring legal personality to rivers of Bangladesh. In a landmark judgment, the High Court Division recognised the importance of protecting the rivers of the country by shedding light on the immense significance of rivers as the source, depending on which trade, business and commerce have flourished since the beginning of civilisation. Not only their economic importance, but also their social, cultural and artistic significance of rivers and how they contribute to the scenic beauty of the country and have inspired generations of poets and novelists have also been highlighted with great eloquence.
The spirit of the High Court Division's verdict is largely reflected within the provisions of the draft. Most significantly, the law acknowledges the doctrine of Public Trust wherein the public's right to clean and healthy rivers, lakes, reservoirs, and habitable environment has been given form. As such, all rivers in the country have been declared as public trust property under Section 16 and have been acknowledged as living entities under Section 15. In the same vein, 'causing death' to rivers, encroachment and pollution have been penalised in Chapter V of the Act.
One of the primary objectives of the draft is to ensure the independence of the National River Conservation Commission (NRCC). As it has been made the 'guardian in law' to the rivers of the country and is entrusted to act as the trustee, it is imperative that the law sufficiently empower the NRCC to take appropriate measures for the effective implementation of the Act and play its part in protecting the rivers from pollution and encroachment. Chapter II lays down the provisions of forming the NRCC. Section 3(2) of the Act states that the NRCC shall be an independent, autonomous, and neutral organisation and shall perform its obligations with transparency, autonomy, and accountability. With a view to ensuring its fiscal autonomy, Section 4 states that a fixed budget shall be allocated by the Finance Ministry every year for the expenses of the NRCC and the NRCC shall not be bound to obtain the approval of the Government for expending the said allocated budget.
Significant changes would also be brought to the formation and constituent members of the NRCC and the method in which they are selected. A Selection Committee headed by an Hon'ble Judge of the Appellate Division of the Supreme Court (selected by the Chief Justice) shall recommend the members of the Commission who shall be appointed by the President.
Chapter IV of the draft Act lays down the corresponding duties of different stakeholders with regard to protecting the special status of rivers. Interestingly, educational institutions have been directed to conduct a class on the importance of rivers at least once every two months and schools are directed to conduct field-visits to rivers in their respective localities. Respective Unions, Upazilas and Districts have been directed to employ necessary technology in order to draw up maps of their areas correctly displaying the rivers flowing through them. Bangladesh Betar and Television have been directed to broadcast documentaries on rivers weekly. Similar directions have been provided to industries and factories and their owners to properly educate their staff on rivers and their significance. These provisions echo the directions issued by the High Court Division and are certainly praiseworthy.
Chapter XII states that one or more River Conservation Tribunals shall be established in each division which shall be linked to the Divisional office of the NRCC. The court shall be presided over by one judge but they shall be assisted by three assisting members with specialist knowledge on rivers and shall be of national or international repute. Mobile Courts have also been empowered subject to requisitions issued by Upazila offices of the Commission to try offences relating to river pollution in their areas.
The principles of international environmental law such as 'polluters pay principle' and 'precautionary principle' have been embodied in Section 96 of the draft law, based on which compensation is to be determined and recovered by the Commission, mobile court, or river tribunals. As per Section 97, 75% of the recovered fine shall be deposited in the government funds and 25% shall be deposited to the funds of the NRCC. Under Section 100, the Commission may declare rivers and waterbodies as Ecologically Critical Areas and issue such directions to relevant stakeholders as necessary.
All in all, the draft incorporates directions of the Supreme Court verdict on rivers. Many of the provisions are ambitious and detailed. However, some of the provisions included deserve some critical analysis. The conferment of jurisdiction on mobile courts needs to be evaluated in the light of the existing debates regarding the violation of rights by mobile courts and the stayed decision of the High Court Division regarding the legality of the mobile courts. Furthermore, Section 101 provides protection to the NRCC from legal proceedings. It states that no criminal or civil proceedings shall be initiated against NRCC or any person empowered on its behalf for acts done in good faith. This creates a substantive hurdle in ensuring accountability and stands in contradiction to the requirement that the NRCC acts dutifully and with transparency. However, it remains to be seen how much of the draft is retained in the subsequent revisions.
The writer works with Law Desk, The Daily Star.