URU, Alm.del - 2019-20 - Bilag 128: Indberetning fra Danmarks Ambassade i Bangladesh om status for domsafsigelse i sagen vedr. den ulovlige ophugning af the North Sea Producer

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URU Alm.del Bilag 128
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Synopsis of Writ Petition No. 8466 of 2017

Case Filed: 06.06.2017

Court:

Hon’ble

High Court Division of the Supreme Court of Bangladesh

High Court Bench: Mr. Justice Syed Refaat Ahmed and Mr. Justice Md. Salim

Judgment Date: 14.11.2019

Parties of the Case

Bangladesh Environmental Lawyers Association (BELA)

………………………. (Petitioner)

Bangladesh represented by the Secretary, Ministry of Industries, Bangladesh Secretariat, P.S.

Ramna, Dhaka.

-and-

Seventeen others...……………………………………………………………….(Respondents)

This writ petition ( which is Public Interest Litigation-PIL in nature) was filed against

the above mentioned Respondents under Article 18A, 31, 32 of the Constitution of the

People’s Republic of

Bangladesh; the Bangladesh Conservation Act 1995 and rules of

1997 made thereunder; the Right to Information Act 2009, Atomic Energy Regulation

Act, 2012; Bangladesh Nuclear Safety and Radiation Control Rules, 1997; the Ship

Breaking and Recycling Rules, 2011; the Hazardous Wastes and Ship Breaking Wastes

Management Rules 2011; the Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal, 1989; Import Policy Order, 2015-

2018 and other applicable laws, regulations and policies.

1. The Petitioner

is an Environmental Lawyer’s Association

of Bangladesh, popularly

known as BELA. The main objective of BELA is to promote and ensure the

environmental justice in Bangladesh.

2. This writ was filed against the Respondents on 06.06.2017 for their actions which has

allowed Jananta Steel Corporation (a Ship Breaking Yard, which is Respondent No.

17 of this writ) in importing, beaching and breaking of a scrapped ship, named, North

URU, Alm.del - 2019-20 - Bilag 128: Indberetning fra Danmarks Ambassade i Bangladesh om status for domsafsigelse i sagen vedr. den ulovlige ophugning af the North Sea Producer

Sea Producer (renamed MT. Producer) which was jointly owned by Danish Shipping

Company Maersk and Odebrecht. As per the petition, this vessel has served more than

33 years and sold off in 2016 as MT. Producer for an alleged record sale price of

BDT 51,82,77,572.00 (Bangladeshi Taka fifty-one crore eighty two lac seventy seven

thousand five hundred and seventy only) to Janata Steel Corporation.

[1 Danish Krone = 12.56 Bangladeshi Taka]

3. Upon receipt of the news from various sources that the said vessel is contaminated

with radioactive materials such as Uranium, Thorium, Potassium, Radium, Radon and

also daughter products from radio nuclides that emit alpha and beta particles well as

gamma rays, such writ petition was filed by the Petitioner Association. The Petitioner

claimed that they were seriously aggrieved by the fact that:

ii)

iii)

iv)

vi)

NOC was granted by the Ministry of Industries for import of MT. Producer

Permission was given by the Ministry of Industries for dismantling MT.

Producer.

Report given by the Department of Environment regarding this vessel

highlighting no radioactive substance found.

No Environment Clearance was issued in favour of Janata Steel Corporation

No Inspection was made for dismantling this vessel.

No Regulation and legal procedures was followed for dismantling this ship.

4. The Petitioner also referred investigation reports of DANWATCH and a Brussels-

based NGO named Shipbreaking Platform which says that the Janata Steel

Corporation has deficiency in safety measures and the owner of this Ship Yard has

violated the existing rules and judicial pronouncement in importing this vessel. The

petitioner alleged that such act of the yard owner and collusive acts and omissions

have definite threats to the safety and security of the nation and are liable to strictest

sanctions.

5. That based on the facts, evidence, reports and submission, the Petitioner prayed in this

writ in the following manner:

a) To issue Show cause to the Respondents as to why various permissions, NOCs,

clearance, renewal given by them in favour of Janata Steel Corporation should not

be declared illegal;

b) Both the Seller/Owner and Importer of the Vessel should be subject to stringent

punishment;

URU, Alm.del - 2019-20 - Bilag 128: Indberetning fra Danmarks Ambassade i Bangladesh om status for domsafsigelse i sagen vedr. den ulovlige ophugning af the North Sea Producer

c) To engage impartial and foreign experts at the cost of Importer of the Vessel to

ensure safe dismantling of the said vessel;

d) To order an interim injunction against the breaking of the vessel MT. Producer;

e) Appoint impartial and foreign experts recommended by Bangladesh Atomic

Energy Regulatory Authority to assess waste flow and radioactive contamination

of the vessel;

f) And pass any other order as the court may seem fit and proper.

6. In total 46 dates were fixed for hearing for this writ petition [A copy of the online

cause list of the Hon’ble Court listing out the dates is annexed as

Annexure -I

for

your reference]. On 09.10.2017 a stay was granted against the NOC given by the

Ministry of Industries for dismantling this ship. By another supplementary petition

pending this writ petition, the same petitioner sought injunction on this ship breaking

and after hearing the petitioner

Hon’ble High Court

passed an order imposing

restrictions on scrapping MT Producer at the ship-breaking yard till October 5, 2017.

7. On 14 November, 2019

the Hon’ble High Court delivered

the final judgment

disposing of this matter. This judgment includes multiple directions and orders

addressing different Government Authorities. As per the concerned bench officer of

the Hon’ble High Court Division, the

judgment is not yet reduced into writing by the

Hon’ble judges and as such the

copy of the judgment is not yet signed and hence not

available.

8. However, one of the most prominent and reliable newspaper of Bangladesh named

“The

Daily Star”

published news

on 15.11.2019 i.e. the next day of pronouncing the

judgment. The relevant portions of the newspaper report in relation to the judgment is

described below:

The High Court declared that the permission given for importing, beaching and

scrapping of radiation-contaminated vessel MT Producer was illegal. No ship can

be imported and beached at the ship-breaking yards violating the conditions of

environmental clearance. Every domestic and international law has been violated

in this case. The court asked the Health Physics and Radioactive Waste

Management Unit (HPRWMU) of Bangladesh Atomic Energy Commission

URU, Alm.del - 2019-20 - Bilag 128: Indberetning fra Danmarks Ambassade i Bangladesh om status for domsafsigelse i sagen vedr. den ulovlige ophugning af the North Sea Producer

(BAEC) to adopt an action plan to complete 100 percent scrutiny of the

contamination and wastes in the MT Producer. The action plan will be developed

under the supervision of BAEC, Bangladesh Atomic Energy Regulatory Authority

and Mega Port Authority and in presence of a senior scientist. Janata Steel

Corporation, which imported the ship, should bear the cost of scrutinising, but

would not be allowed to participate in the process. As per the environment

conservation law, the Department of Environment can order Janata Steel

Corporation to compensate for polluting the environment by violating the

conditions of the environmental clearance.

High Court ruled that the buyers and the agencies that certify whether the ships

are free from contamination and hazardous wastes must be listed and controlled

strictly by the relevant laws. Steps will have to be taken to regulate the import of

ships from the countries that operate ships in violation of international laws. The

Judges also ordered the Department of Environment (DoE) not to allow any

import and beaching of any ship for breaking without getting complete and

detailed information about their waste. The DoE must follow the rules of domestic

and international laws in this regard.

9. Another Newspaper named

The Business Standard

published news on the judgment

on 15.11.2019 which is described below:

The Court asked the government to prepare a list of the cash buyers and other

agencies concerned that give certificates whether any ship is free from

contamination and hazardous wastes. The government has also been asked to

control their activities strictly with enforcement of the relevant laws. To get

authentic information if the ships contain toxic wastes, the court said the

government should take necessary measures to control the import of ships from

the countries holding "Gray" and "Black" flags (Comoros, Palau, Cambodia,

Tanzania, Vanuatu, St. Kitts and Nevis, Belize, Cook Islands, Sierra Leone, Togo

and so on).

URU, Alm.del - 2019-20 - Bilag 128: Indberetning fra Danmarks Ambassade i Bangladesh om status for domsafsigelse i sagen vedr. den ulovlige ophugning af the North Sea Producer

10. For your reference the links of the Newspaper publications are given below:

https://www.thedailystar.net/backpage/news/import-toxic-ship-mt-producer-illegal-hc-

1827265

https://tbsnews.net/bangladesh/court/ships-scrap-cannot-be-imported-without-environmental-

clearance-high-court

11. The photocopy of the writ petition along with the order dated 08 June, 2017 as

collected by us from the court is annexed and marked as

Annexure-II.

As stated

above as the judgment dated 14.11.2019 has not yet been prepared and hence the

same could not be collected.

Omar H. Khan

Barrister-at-Law

(Lincoln’s Inn)

Advocate, Bangladesh Supreme Court

Head of the Chambers

Legal Counsel

Ishtiak Abdullah

Barrister-at-Law

(Lincoln’s Inn)

Legal Counsel