A legal perspective on the FAP

Author The Bangladesh Flood Action Plan (FAP) has received severe criticism from some quarters. Mohiuddin Farooque is a lawyer with the Bangladesh Environmental Lawyers Association (BELA). Tiempo talked to Farooque about the activities of BELA and discussed his views on the FAP.

What is the role of BELA with regard to the Flood Action Plan and other environmental issues?

BELA is an organization of practising, research and academic lawyers. BELA's intent is to use legal mechanisms as a tool for the protection of the environment. In so far as the FAP is concerned, there are five major foci of activity:

  • to highlight any procedural irregularities that may occur while institutionalizing the FAP. This includes the question of de jure and de facto authority over the FAP and respective accountabilities;
  • to advocate the demographic issues from a legal perspective where necessary, we highlight past experiences where suffering may have occurred as a result of a lack of due regard to legal provisions;
  • to attempt to explain and make clear the legal positions of all parties concerned;
  • if necessary, to take steps to find legitimate remedies; and
  • to extend our active support to other concerned groups.

We have a broad spectrum of activities that deal with other environmental issues also. We undertake research that enables us to identify the problems involved in the enforcement of law. This includes any drawbacks, institutional inconsistency or incompatibilities that may arise in the interaction between policy, law and institutions. BELA has also initiated public awareness programmes in which we endeavour to explain the law to groups or communities in an easily understandable language.

We are presently participating in the international climate treaty negotiations and have set forward recommendations on the necessary steps to be adopted for ratification and implementation of international commitments. We have also established law training programmes for non-lawyers and an environment education programme for lawyers. There are, of course, many other activities that BELA is involved in but these are the major ones.

Does flood protection warrant, in your opinion, a large-scale, international effort such as the FAP?

As the cause is internationally-shared rivers, then yes of course flood protection warrants an international effort. First, it is the responsibility of the sharing states to discuss possible solutions. If agreements cannot be reached between the sharing nations, then an international effort is needed to assist them in finding solutions and in implementing them.

But this is not the case where the FAP is concerned. The FAP is a non-riparian international effort at solving a problem that relates to the whole hydrologic region. It is imposing on Bangladesh the responsibility for solving an international problem.

Instead of trying to work toward a positive system-wide solution covering both Bangladesh and the upstream states, existing efforts are close to being a misuse of the taxpayers' money from the countries involved. All the donors of FAP are also donors of the upstream states yet they are in favour of ineffectual piecemeal bilateral dealings. Even within Bangladesh, other relevant bodies like the Indo-Bangla Joint Rivers Commission whose functions include flood issues are not part of the programme.

Do you consider that sufficient attention has been paid to the interests of the Bangladeshi people? Are they being adequately consulted?

Let's be realistic. Even if we were entitled to have an interest, it would be subordinate to higher interests. If the latter is satisfied, the former is simply swallowed by it. Then you need a toothpick to comb out the remains of the people's interest. The problem is that there are two distinct interest groups one is the 'public' and the other is 'public agencies'. The interests of the people are usually seen solely in terms of the interests of the public agencies. International donors work with, and for, the public agencies so the public remains an outcast.

Are the Bangladeshi people being adequately consulted? Well, ask their representatives in Parliament. Do they know? Do I really know what is going on behind the 'draft' stamps seen on the reports? Think about the interests and opinions of what is a 70% half-fed and half-naked illiterate people and then of the 'saviours' who peep through the windows of their air-conditioned four-wheel drive vehicles. Do these 'saviours' understand the inner and outer language of the people? Consultation is more than inviting selected people to a meeting or talking with a deaf ear.

Who will benefit most from the Flood Action Plan?

Foremost the planners, both national and international. The FAP is a money-plant. Its advocates often say that the FAP is not a construction plan. I think that this is absolutely untrue. The question is, can flooding be controlled without the need for some kind of construction? The whole exercise of the FAP is construction. There are eleven guiding principles set for the FAP by the donor agencies. Principle number five states Safe conveyance of the large cross border flows to the Bay of Bengal by channelling it through the major rivers with the help of embankments on both sides. This is a guiding principle that predetermines structures and nothing but structures.

Second, the upstream sharing states will also benefit. They would be rid of the international responsibility for preventing floods, even though this is a transboundary water-related hazard.

Finally, the donors have jumped on the FAP bandwagon to appear benevolent. The Bangladesh floods are a huge humanitarian aid event and the impression is given that no one has helped Bangladesh unless it has dropped some coins into the FAP box.

How realistic are the aims of the FAP?

Legalistically speaking, the Plan has no 'aim'. Criminologically, it has 'intention', means rea and 'motive'. Its intention is to take or design 'action' and its components are not for 'inaction'. The first eleven components are 'Plan Components' and the remaining components are 'Support Activities' that include pilot projects. The current studies are to justify construction. The action-bias FAP is targeted towards structures. This is the ulterior motive and all other activities are to support or justify the structures in various ways, and this indicates the element called means rea.

Can the giant rivers of Bangladesh be controlled? And then, can this be decided by the experts engaged by FAP? I asked a water expert once and he replied, Can a vet undertake heart surgery? I don't say that the experts are not experts, but I suspect that most of them may turn out to be experts on FAP and not on the river systems or floods of Bangladesh. If the structures are built, could we maintain them? Or would we become hostage to the technology involved? The FAP is 'consultizing' not only the rivers but also the whole nation. The FAP would devour Bangladesh more permanently than the periodic floods.

The past experience of water structures in Bangladesh is shocking. Yet what would make the FAP anything better than what has been implemented in the past? The earlier ones were also funded and technically aided by many of the donors who are now supporting the FAP. What magic will FAP perform?

Coping with and, perhaps more importantly, making full use of flooding are notable characteristics of the traditional way of life of the people of the delta. Can this knowledge and understanding be harnessed?

No one asked the people of Bangladesh to what extent they need structures against the floods. No one asked if the people are at all scared by the floods. Perhaps the international community is more frightened by the 1988 floods than the people. The international technology-dealers and their Bangladeshi collaborators have taken advantage of the photographs and video images of the flood.

We are flood people. While in the western world, there is a car parked outside every home, here you would find a small boat with almost every household in the flood plain. The cropping patterns have developed accordingly, responding to our natural conditions. The primary damage caused by the 1988 type of flood is mostly to the communications network, the cause as well as the victim of the floods. Most of the roads, bridges and embankments are constructed unplanned and their destruction during a flood should compel us to remove them rather than to reconstruct them.

Community-based projects are thousands of years old in Bangladesh. And the FAP is going to reshape the traditional life and living as well as the courses of nature, mostly the non-damaging but essential ones.

We already have two formidable threats — the onrush of water from the Himalayas and from the Indian Ocean. Now there is a third one in between — the FAP.

Further information

Mohiuddin Farooque, Bangladesh Environmental Lawyers Association, 'Digonto' House, 251/C, Road 22 (Old), 12A (New), Dhanmondi R. A., Dhaka 1209, Bangladesh.

Published Issue 8, April 1993