Climate change funds and some unanswered questions

It seems different political government over the years had routinely used the Prime Minister's Emergency Relief funds for the betterment of the health and safety of the first class citizens of Bangladesh. That decision perhaps stemmed from the general understanding that the fund will not face shortfalls in times of crisis or will be deemed to be adequate in meeting its actual intended purpose. The present government has proved itself as no better on this point as per the recent news that has been appearing in the print and electronic media. How can one blame them when the state is potentially looking at a $5.0 billion dollar wind-fall of funds in the name of climate change action fund under different banners. An alarming culture has developed within the government functionaries and different public authorities to disregard the legal consequence of their actions, omissions and decisions as they only seem to worry about the public and political sentiments and moods. Since victims of natural disasters are coming less in the front pages, the government as it seems can safely use its pocket money to save a couple of nearly highest paying statesmen from their mortal diseases. But whether the government likes it or not, these funds have a legal name and a written objective for which it was established, and to use it otherwise is committing a breach of trust amongst other things, having legal consequences. Perhaps, it can be assumed that one of the objectives of the emergency fund allows the government to spend the money on any other needful purpose that it deems fit and proper. Hence if the government deems it fit to use the money to clean the streets of Washington DC, strictly speaking, even that would not be unlawful. But is it equitable? Is it fair? Is it reasonable? Does it further the purpose for which the fund was created? These, are some of the questions which, believe it or not, are also principles emboldened in legal jurisprudence, and which hold equally important weight in the lawfulness and reasonableness of the actions of the government. Without going into much detail, it is factually correct to say that Bangladesh for its unique geographical position in the global map, is endowed with abundance of natural wealth, some of which we have been harvesting over the years. However the nature looks to be turning its back on us with great vengeance, not so much perhaps for the injustices we have caused to it, but by the injustices caused by other countries. Bangladesh's annual per capita kilogram of oil equivalent consumption is 171 compared to 10000 of the UAE and 8000 of the USA and yet it is in the list of the countries that will be mostly harmed by the effect of climate change. Faced with compelling data and statistics (developed countries love numbers), the Group of Eight (G8) countries being the worst emitters of CO2 gas, has accepted their moral and economic responsibility at the UN-sponsored Climate Summit in December, 2009 in Copenhagen and agreed to create $30 billion fund between 2011 and 2012 for climate change mitigation and adaptation projects in the affected countries (mainly least developed countries or (LDCs) and small island nations) and to ultimately create a $100 billion annual fund by the year 2020. Good news is that Bangladesh will receive a significant portion of this fund to play a constructive role in managing and facilitating the mitigation projects of the climate-change adverse effects within its border and to raise the level of adaptation to the changing environment. I use the phrase 'raise the level of adaptation' because people of Bangladesh have a long history and proven record of adapting to the adverse effects of climate change from decades ago, even when climate change was not a global issue. However, my concern has been raised by the way the government is allegedly getting these funds and the way the government is using it. The UN climate change meeting concluded with the demand from countries like Bangladesh that the climate change effects are causing great difficulties for poor countries and they are failing to cope with it and since the developed countries have been the major polluters, they should bear the cost of mitigating and adapting to climate change effects. This should come as grants and that too over and above the annual development aids that these countries receive from donor countries. But ever since the UN meeting, things have not gone the right way for most of these hapless countries facing the extreme end of the climate change effects. Several donor countries are seen mingling the climate change fund with the annual development funds and then to make things worse, some of them are only offering it in a form other than outright grants as pledged on multiple occasions. The government of Bangladesh (GoB) was perhaps the first in the list of affected countries to establish a domestically funded Trust fund to immediately kick off projects and works to target the mitigation and adaptation of the climate change. The Fund was created in the name of Climate Change Trust Fund and started with an initial fund of Tk. 14 billion or 1400 crore (as per the Budget speech of the Finance Minister). So far we have gathered that some money has been already disbursed and projects are ongoing. In addition to this, the government has also created a separate fund called Bangladesh Climate Change Resilience Fund. It appears that main purpose of this fund is to receive foreign donationsloanscapitalinvestmentconcessional finance and use them according to prescriptions of donor countries and their appointed oversight agencies. Laws regarding the trust fund in Bangladesh are managed by the Trust Act 1882. Questions need to be asked whether Trust Act 1882 is meaningful and adequate enough to deal with such a complex financial arrangement as the different climate change funds entail. Further, since the government has created a trust fund, it is legally acting as a trustee, holding the entire fund in trust for the beneficiaries who are supposed to be the affected population of Bangladesh if not the entire population. And yet the beneficiaries are mostly kept in the dark as to the management and operation of the trust fund. The web site of Climate Change Unit holds some mere forms and documents, whereas a proactive trustee board can be reasonably expected to upload all information regarding the management of the trust fund, activities of the trustee board, information of the non-government organisations (NGOs) who has taken fund money under projects, annual reports, assessment and evaluation reports of those NGOs, their members and stake-holders so on and so forth. There seems to be an overall lack of transparency in actions and information regarding the management of the funds. The government has thankfully formulated a written policy to manage the affairs related to NGOs who will receive money from the fund. Unfortunately the policy contains provisions which are at best vague on the points of legal course of actions in case of graft, mismanagement and abuse of both power and money of the Trust fund. There are no clear provisions on grievance procedure against the trustee board or the participating NGOs. Even though the policy talks about its goals in broad terms, it does not elaborate the specifics about it anywhere in the policy, keeping the NGOs, other stake holders and interested parties in the dark about their legal responsibilities and obligations. Most alarming perhaps is the fact that so far 96% of the incoming fund has been allocated to different government ministries and departments while NGOs have received less than 4.0%. While the written policy provides some guidance to NGOs, there are no similar written guidelines for the Government ministries and departments potentially creating scope for mismanagement, misuse and pilferage of foreign funds. It has been alleged that stake-holders are not in a position to get any copy of the agreements, memorandum of understandings (MoU) already signed by the government with other donor countries and organisations and hence hardly anyone except the parties to these agreements, treaties, MoUs are aware of the terms and conditions under which these massive funds are coming into the country. Questions have already been asked about the nature of these funds. We are not fully aware whether they are grants as they were pledged to be or they have transformed into loans, capitals, investments, concessional funds etc., each having distinct legal ramification about financial liability. Bangladesh is already saddled with a $21 billion external debt and annual debt servicing amount is a whooping $1.0 billion when the country could only allocate an equal amount on health care in its annual budget. Under such circumstances, it is only pertinent to ask whether the state is assuming increased debt burden in the name of climate change fund which were meant to be grants. In the recent seminar organised by the Transparency International Bangladesh chapter, participants raised issues about ineffectiveness of giving the highest allocation of fund to Water Development Board (WDB). According to the stake holders, corruption, lack of initiative by the local government, misuse of funds, mismanagement were the some of the allegations raised against WDB and other fund receivers. But of all the things that were said the most alarming was and still is the fact that the beneficiaries of the funds i.e. the people of Bangladesh are mostly kept in the dark and left uninformed about the management and flow of the climate change funds. Is it fair? Is it reasonable? Does it follow the equitable obligations of trustees? I should take this opportunity to throw in some questions of my own to the concerned stake-holders. Are the provisions contained in the Trust Act 1882 adequate and effective enough to provide legal answers to the climate change fund-related complex legal issues? Is it not a high time for creation and functioning of an independent, transparent and proactive regulatory body to work as an oversight agency into the affairs of the climate change funds on behalf of the beneficiaries on the face of widespread allegations of corruption and mismanagement? Is it not long over due to formulate written policy guidelines for different ministries and department entrusted with massive amount of climate change funds? Should not the trustee board of the Climate Change Trust Fund regularly make public disclosure of all the information leading to evaluation, assessment of NGOs and their periodical activities? Should not the Trustee Board make public its annual audit reports to be accessed by the beneficiaries, who have a lawful right to know how their money is being managed? Should not the government consult with the beneficiaries, stake-holders and civic societies before receiving funds for climate change purpose so as to ascertain the nature and characteristics of these money to avoid (or make a reasoned decision) increasing future national external debt level? Are the NGOs and stake-holders made aware as to which courts and tribunals hold legal jurisdiction in cases of legal actions related to mismanagement, graft and corruption in the climate change fund? Are there any law, rules, regulations, policies in place to deal with conflict of interest with respect to trustee board and NGOs in the employment of NGOs and fund disbursement. Most importantly, why is the government accepting the involvement of certain donor agencies in the Climate Change Fund when these organisations are discredited for lacking legitimacy, transparency, ignoring national priorities, charging excessive bank charges and failing to engage with the recipient country's civic society. I believe the government should proactively take coordinated steps to mitigate these legal and administrative issues before embarking upon mitigating climate-change adverse effects and clear the confusions and apprehensions held by the stake-holders and beneficiaries, on whose name these funds are coming into the country in the first place. Government should also come out of the perceived mis-perception that it owns the fund and the authority to use it, because they do not, they are mere trustees of these funds being accountable for every penny to the people of Bangladesh. (The writer, a Barrister-at-Law, can be contacted at email: saquib25@gmail.com)