http://today.thefinancialexpress.com.

bd/views-reviews/court-has-granted-rivers-legal-
personality-state-must-uphold-their-rights-1551450535
Court has granted rivers legal personality, State must uphold their rights

MS Siddiqui | March 02, 2019 00:00:00

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 leg al 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 the y 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 agai nst 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 con cerned 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 huma n 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 legisl ation 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 n ature, 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 a nd
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 p ollution
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, rive r 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, pond s 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 bank s 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, cann ot 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