Court has granted rivers legal personality, State must uphold their rights   

MS Siddiqui     | Published: March 01, 2019 22:36:24 | Updated: March 06, 2019 21:08:23


Persons are judicially classified in two groups: natural persons and legal persons. The first group refers to a human being, who is an individual capable of assuming obligations and of holding rights. The second group refers to those entities endowed with juridical personality who are usually known as a collective person, social person, or legal entity. Hence, the legal systems include both natural persons and artificial legal persons.

These persons are artificial creations of law and can be created by the judiciary, specific legislation, or by general legislation. There are many other examples of legal persons across common law jurisdictions, including: the Crown; ships; limited partnerships; Companies, local authorities; statutory entities such a different corporations (e.g. Titas Gas company) etc. and recently, rivers and land which got artificial legal status. Legal personality is generally understood as the capability to be - in traditional anthropomorphic terms - 'the bearer of legal rights and obligations'. The concept of legal personality is a convenient legal fiction that allows non-human entities to hold legal rights, and requires them to fulfill corresponding legal responsibilities to others. This "capability of enjoying rights and performing duties" can be seen as a prerequisite for legal personality.

Scholars stated that the rights of artificial persons did not need to be identical to human rights, and suggested they could also differ between natural features. The rights could be tailored to the specific needs and circumstances of each natural entity to be protected.  For example, for rivers "the right to flow" could be seen as "a fundamental river right" because "the capacity to flow (given sufficient water) is essential to the existence of a river." On the other hand, such right would have no logical application to forests.

Under any legal system, only property-owners who are affected by damage can launch a case against the person responsible for the damage. The legal system did not have a "system in which, when a friend of a natural object perceives it to be endangered, one can apply to a court for the creation of a guardianship." So it envisioned a process where concerned humans can bring cases on nature's behalf and speaking for nature, regardless of whether they had any personal property interests at stake.  Under this view, these guardians would not have difficulty identifying the interests of the natural features they were representing: "natural objects can communicate their wants (needs) to us" through our senses, and humans frequently "make decisions on behalf of, and in the purported interests of, others".

The river ecosystems provide a range of services to human users, including basic water supply, hydropower, irrigation, navigation, and pollution control (Ross and Connell 2016). They are also of great significance to indigenous peoples and local communities (Alley 2010, Department of Environment, Land, Water and Planning 2016, Sachdeva 2016). In recent time, rivers have become the worst victims of human actions and legal system forcing lawmakers to come forward to rescue the rivers in different parts of the world. An increasing number of court rulings and legislation worldwide are recognising rights of nature to be protected and preserved. Recognising these rights also entails the recognition that nature has the right to stand in court and to be represented for its defence.

The concept of granting legal rights to nonhuman entities is not new (Salmond 1947, Stone 1972), but it has only recently begun to be implemented for nature. This approach has been applied to specific natural features, like rivers. In 2008, the government of Ecuador changed its constitution to enshrine nature with human-like rights, "to exist, persist, maintain, and regenerate its vital cycles." In 2010, Bolivia passed the Law of the Rights of Mother Earth, giving nature equal rights as that of humans, thus explicitly recognising the rights of nature, and empowering "all persons, communities, peoples and nations to call upon public agencies to enforce the rights of nature". In March 2017, New Zealand government passed legislation that recognised the Whanganui River as a legal person. The Ganges and Jamuna rivers in India, were given the legal status of persons,  in 2011 by the Uttarakhand High Court in a remarkable judgment, in the case of Mohammad Saleem vs. State of Uttarakhand.

The rivers and wetlands of Bangladesh are the worst victims due to pollution and the irresponsible activities of population. It has worsened because of lack of awareness and poor enforcement of existing laws and rules. The regulators are also involved in corruption to legalise the filling of river and wetlands for different human use of living and commercial activities. This is why the High Court of Bangladesh came up with a landmark and historic judgment on February 03, 2019 declaring rivers as legal entity and as per newspaper reports (as the full verdict is still not out) giving the human status to rivers in the country. The development has the potential to create new legal precedent in environmental law, and opens a fresh pathway for water resources management. In doing so it also perceives a series of complex challenges for both law and management. Further, legal rights are only worth having if they can be enforced.

There is no alternative to looking into the implementation of laws and direction of the courts. First, an individual or organisation must be appointed to act on a river's behalf, to uphold the rights of, and speak for nature (Croley 1998, Stone 2010). Second, capacity in the forms of time, money, and expertise may need to be made available so that the rights of the river can be upheld in court. And third, river representatives and funding sources are likely to need some form of independence from state and governments, as well as sufficient real-world power to take action, particularly if such action is politically controversial (O'Donnell 2012).

The judgment of High Court of Bangladesh has given four fundamental decisions: (1) In pursuance of the doctrine of public trust, the court declared that State shall perform responsibilities of a trustee in respect with all the rivers, sea, mountains, forests, lakes, ponds and other receptacles of water within the territory of the State. (2) In pursuance of its parens patriae jurisdiction, the court accorded 'living entity' status to Turag river and asked the concerned authorities to remove all the structures from its banks in next 30 days. The Court also said that the status will be applicable for all the rivers of the country, (3) National River Protection Commission was declared by the court as the legal guardian of all the rivers of the country, (4) From now on, National River Protection Commission will take necessary measures to protect all the rivers of the country.

The court has also given certain directives through the judgment in order to ensure better protection of the rivers. Some of them are as follows- (a) Directed the government to amend the National River Protection Commission Act 2013 for making the National River Protection Commission effective and independent and to submit a report after complying with the order before this court in six months, (b) Election Commission is directed not to allow any person accused of grabbing river land to contest any election including local government and parliamentary polls, (3) Bangladesh Bank is directed to take steps so that any person, accused of grabbing river land, cannot borrow money from banks.

With this verdict and directive from High Court, rivers now have the legal right to survive in the country. What is now needed is proper implementation of the judgement.

MS Siddiqui is a legal economist.

mssiddiqui2035@gmail.com

 

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