|
Some
Supreme Court judgements in 2001 that impinge upon human rights |
[This
chapter is from Human Rights in Bangladesh 2001]
Introduction
The judiciary of Bangladesh, particularly its superior tier, comprising
the Supreme Court, has been seen as the most responsible organ of the
State to ensure rule of law and justice. There is also a growing expectation
that the judiciary, in administering justice, should not confine itself
to municipal laws only, but should examine competent issues in the light
of universal norms and principles of human rights and freedoms. This
expectation has been advanced by the pronouncement of the Appellate
Division of the Supreme Court that,
…national Courts should not straightway ignore the international
obligations, which a country undertakes. If the domestic laws are not
clear enough or there is nothing therein, the national courts should
draw upon the principles incorporated in the international instruments1.
Since decisions of the Supreme Court set authoritative precedents, they
complement statutory legislation. Thus developments in legal discourse,
attained each year through interpretation, deliberation or pronouncements
of the Supreme Court, demand close study.
This chapter reviews some of the most notable decisions of the Appellate
and High Court Divisions of the Supreme Court, either passed or reported
in 2001, from a human rights perspective to see how they protect constitutionally
guaranteed fundamental rights and human rights principles.
Freedom
of Expression: Contempt of Court
The most notable contempt proceedings before the High Court Division
in recent years, that stimulated widespread discussion in the press
and the political arena, were taken against the former Prime Minister,
Sheikh Hasina. The judgment in Mainul Hosein & others vs. Sheikh
Hasina2, was delivered on 24 October
2000 by a Division Bench of the High Court. Three petitions were filed
seeking the drawing up of contempt of court proceedings against Sheikh
Hasina3. The common allegation in these
applications was that on 26 July, 2000, Sheikh Hasina, in an interview
with BBC, made an objectionable and contemptuous statement that both
the lower courts and the High Court Division are the sanctuary of corrupt
and accused persons; that whenever they approach the Court, they are
released on bail after which they again commit murders; that both, the
lawyers seeking bail and the courts granting bail, should be accountable.
Mr. Mozammel Hoque J., disposed of all three applications with a note
that, …the Hon’ble Prime Minister shall be more careful
and respectful in making any statement or comment with regard to the
Judiciary or the judges or the Courts of Bangladesh in future4.
In doing so, he noted that the Court was taking into consideration the
greater interest of the country, protection of the prestige and dignity
of the highest executive post and avoidance of any possible political
unrest over a sensitive issue. He further noted the need to prevent
confrontation between the executive and the judiciary and to maintain
and preserve harmonious coordination and cooperation between these two
important organs of the State.
The other
judge on the Bench, Mr. Abdur Rashid, J., in his concurring judgement,
made some noteworthy observations with regard to the jurisprudence of
‘contempt of court’. He stated that the object of the proceedings
for contempt is not to vindicate the character or conduct of a judge,
it is rather to protect the Court from attack and to maintain confidence
of the citizens, particularly litigants. He asserted that the true reason
for initiating such proceedings ought to be in the public interest.
He further observed that the alleged statements, even if based on inaccurate
assessments of the situation, however gross and misleading they may
be, cannot be tantamount to contempt of court, for without mens rea
(a guilty mind), no contempt can be established. The Judge noted that
the office of the Prime Minister has a special immunity with regard
to the offence of contempt of court. He further noted that reading the
questioned statements in the context of the entire interview and in
the objective reality of the country, they appeared to be no more than
the observations based on the Prime Minister’s own understanding
and judgment of the situation. He stated that the judiciary couldn't
dictate how the chief executive of the country should exercise his or
her discretion. With regard to the filing of application by the members
of parliament, the judge critically observed that the aggrieved members
of parliament could have more opportunities and better scope to hold
their leader to account in the Parliament for her statements. 'Such
a novel [sic] step unprecedented in the constitutional history,
I am afraid, would not create any good precedent5,'
he observed.
Justice Rashid examined the law of contempt of court in the context
of freedom of speech and expression, as guaranteed by Article 39 of
the Constitution6. While recognising
that the limitations imposed in the Article are necessary in the interest
of administration of justice, he found it necessary to remember:
…what could readily be read as contemptuous in 1900 or 1912
or 1936 is not so easily read now in the context of expanding rights
guaranteed as fundamental to human existence under the Constitution7.
He then observed that the Court must harmonise the constitutional values
of free speech and expression with the issue of contempt and concluded
this question with an illuminating statement by Lord Denning that addresses
the position of the judges vis-à-vis contempt of court.
All we would ask is that those who criticise us will remember that,
from the nature of our office, we cannot reply to their criticisms.
We cannot enter into public controversy. Still less into political controversy.
We must rely on our conduct itself to be its own vindication.
This case demonstrates how an imminent tussle between the executive
and the judiciary, which was apparently motivated by political considerations,
was neutralised by the judiciary. In addition, some observations were
made in the concurring judgment regarding the extent of the authority
of the head of the executive organ of the State to exercise discretion
regarding any particular situation of the country, thereby according
the office of the Prime Minister with a degree of immunity against contempt
of court proceedings.
In the year 1999, as well, a judgment8 by the Supreme Court had upheld
the immunity of the members of the legislature for their statements
made on the floor of the parliament. The Court had stated that '…
had these statements been made outside the parliament the situation
would have been otherwise and it would have been considered in a different
way.'
However, these judgements have hardly restrained a recent trend of bringing political opponents to the dock using ‘contempt of court’. After resigning from the office of the Prime Minister, Sheikh Hasina has once again been accused of contempt of court for statements in an interview with a newspaper. The question, therefore, arises as to what should be the demarcation between freedom of expression and contempt of court, between immunity and contempt of court. What transpires from a discussion of these cases is that the notion of con-tempt of court, as it prevailed even a few years back, has undergone a change, and become a political ploy to humiliate opponents before the public and the Court. It is no wonder that the Courts, in the face of such disguised political rivalry, prefer an appeasing conclusion in each case.
Right
to Life/ Right to Personal Liberty: Sex Workers’ Rights
The High Court Division, in Bangladesh Society for the Enforcement
of Human Rights (BSEHR) and others vs. government of Bangladesh and
others9, on 14 March, 2000 addressed a broad spectrum of issues
including the fundamental right to life and personal liberty and the
rehabilitation of sex workers. The right of sex workers to an occupation,
to a residence compatible with the worth and dignity of a human being
and their rehabilitation has been viewed from a sensitive perspective
in the judgement.
The facts of the case related to the incidents of 23 and 24 July 1999,
when the police raided and barged into the rooms of the residents of
Nimtoli and Tanbazar brothels in Narayanganj. The residents were asleep
at the time, and, without giving them any time to organise their belongings,
the police dragged them onto the streets. They abused and beat them
and pushed them and their children into waiting buses. They were detained
against their will in different vagrant homes and government shelters.
According to the government authorities, this wholesale eviction was
carried out with a view to 'rehabilitate the sex workers'. In the vagrant
homes, the inmates were denied the right to meet their family members
and were allegedly tortured both physically and mentally. A writ petition,
in the form of a public interest litigation, was then filed in the High
Court Division by several voluntary organisations10.
In its judgment, the High Court acknowledged that ‘prostitution’
is not an unknown concept or trade but an age-old profession, 'perhaps
as old as the dawn of human civilization', though, it is socially condemned
in Bangladesh as in other parts of the world. The Court then held that
the sex workers consent to sexual intercourse and while their profession
might be socially looked down upon; it is not illegal under the law.
The Court, however, cautioned that, 'Even if prostitution is not illegal
in Bangladesh, it is never encouraged and State machineries are all
out to prevent it by adopting various measures including rehabilitation
schemes in consonance with our Constitutional mandate in its directive
state policy that the State shall adopt effective measures to prevent
prostitution11.'
The Court
reiterated the fundamental right to equal protection of law and protection
of life and personal liberty enshrined, respectively, in Articles 31
and 32 of the Constitution and unequivocally censured such eviction,
since they were citizens of Bangladesh, enrolled as voters and exercised
the right of franchise. The Court observed,
Though prostitution is not a socially recognised profession in Bangladesh
but implied the prostitutes initially get themselves enrolled with the
local administration, sometimes swearing an affidavit expressing the
desire to be a prostitute and get themselves confined to the place called
brothel and get the required protection to continue in profession by
the local civil and police administration, in spite of the provisions
of Suppression of Immoral Traffic Act (1933) whereby they are maintaining
their earning or livelihood which the State, in absence of any prohibitory
legislation, has a duty to protect, and a citizen has the right to enforce
the rights enshrined in Articles 31 and 32 of the Constitution12.
The Court also observed that even if Article 11 of the Constitution,
which refers to the dignity of the human person, may not be enforceable
as a fundamental principle, the sex workers as citizens were clearly
entitled to invoke enforceable rights under Articles 31 and 32 of the
Constitution. The Court upheld the fundamental right of the protection
of privacy of the sex workers, saying, it should be remembered that
nobody could violate the privacy of the inmates of any house or trespass
into it except in accordance with law.
The Court then referred to the interpretation of the right to life in
the Indian case of Olga Tellis vs. Bombay Municipal Corporation13
and stated that the inmates of Nimtoli and Tanbazar have a guaranteed
right to life and livelihood. It then stated that an important facet
of the right to life is the right to livelihood and the easiest way
of depriving a person of a right to life would be to deprive him/ her
of the means of livelihood.
The Court emphasized that the wholesale eviction of sex workers from
Tanbazar and Nimtoli had deprived them of their livelihood, which amounts
to deprivation of their right to life making the act unconstitutional
and illegal.
We painfully observe that though the police is the protector of
the oppressed, in the instant case they have failed to fulfil their
obligation in protecting the rights of the dwellers of Tanbazar and
Nimtoli. Even if a particle of the allegations against the police is
found to be true or has any basis in the instant case, it is a shame
for the nation14.
With regard
to the detention of the sex workers in the Vagrants’ Home in Kashimbazar,
the Court found that mere roaming around in any area would not bring
the sex workers within the mischief of the Vagrancy Act unless they
were also found for example, to be asking for alms in a public place.
It held, without any hesitation, that these actions by the police, treating
some of the evicted inmates of Tanbazar and Nimtoli brothel as vagrants,
was done without any lawful authority.
Lastly, with respect to the rehabilitation of the sex workers, the Court
observed that any rehabilitation scheme must not be incompatible with
the dignity and worth of a human person. Rather it has to be designed
to uplift personal morals and family life, to provide for jobs giving
them an option to be rehabilitated or to provide facilities for better
education and economic opportunities in order to minimize the conditions
that give rise to prostitution.
This judgement occasioned much public discussion and was interpreted
by the media as declaring prostitution to be a lawful profession. It
was, however, acclaimed by human rights organisations for having provided
a liberal interpretation to the right to life and personal liberty.
The judgment is to be commended not only for expanding the scope of
the right to life, but also for reiterating the fact that sex workers
have the right to protection of their privacy against any unlawful infringement.
Right
to Personal Liberty: Prisoners’ Rights
The High Court Division in its judgment of 22 May 200015 directed the
release of some 29 foreign prisoners who had been detained in Dhaka
Central Jail, despite the expiry of their respective terms of imprisonment.
The Court’s observations in this case regarding the provisions
of the Jail Code and more generally, on the rights of prisoners has
made judicial history in the country, because it installed a legal device
in our judicial system, namely the Epistolary Jurisdiction. This has
a potential for protection of the rights of the vulnerable sections
of the society. This jurisdiction allows the Court to take cognizance
of a matter concerning public interest of grave importance and initiate
legal proceedings, not on the presentation of a formal plaint or petition
but on receiving a letter or telegram or similar communication.
The facts
of this case are that Dr. Faustina Pereira, Advocate of the Supreme
Court16 wrote to the Chief Justice of Bangladesh, bringing to his attention
a report in the Bangla language national newspaper, Prothom Alo,
concerning 29 prisoners of different countries who were languishing
in jail for about five years after the expiry of their sentences. The
Hon’ble Chief Justice then directed the Registrar of the Supreme
Court to place the matter before a Division Bench comprising of Mr Mohammad
Hamidul Haque J. and Ms Nazmun Ara Sultana J. The Bench suo motu
issued a rule against the government and ASK swore
an affidavit to assist the Court in disposing the matter.
The Court stated that it would have been proper for the jail authority
and also the Ministry of Home Affairs to take appropriate steps for
the release of the prisoners in question at the earliest possible time
and it was unfortunate that no such steps were taken. It further stated
that it had learnt from a letter of the Inspector General of Prisons
that about 822 more prisoners were awaiting release even after the completion
of their sentence. The Court apprehended that if timely steps were not
taken in future, more prisoners would meet the same fate.
The Court endorsed the statement of ASK’s lawyers
that keeping any prisoner in jail after serving their sentences amounted
to violation of fundamental rights as guaranteed by the Constitution.
The Court then directed the government to take steps for release of
such prisoners, at least three months prior to the date of their release,
so that such prisoners do not languish in jail for indefinite periods
through no fault of their own. The Court expressed its discontent regarding
the activities of the concerned government departments, stating that
the steps taken by them to solve the problem of repatriation of foreign
prisoners after expiry of their terms of imprisonment were not at all
sufficient. It noted the government’s absolute duty to ensure
the immediate release of prisoners on the expiry of their sentences:
It
is natural that some time would be needed to complete formalities of
their release because Embassies of the different countries require to
be contacted, but even if after a reasonable time such prisoners cannot
be released with the help and assistance of the respective Embassy,
government should release such prisoners and under no circumstances
the prisoners should be kept in jail…Further, we also think that
it is the duty of the government to ensure their safety and security
after their release17.
The Court, on suggestions made by ASK, recommended
that the government communicate with human rights bodies or international
bodies such as the International Red Cross Society, the UN High Commissioner
for Refugees and the International Organisation for Migration, for repatriation
of the prisoners. The Court recommended the setting up of separate cells
in the Ministry of Foreign Affairs and the office of the Inspector General
of Prisons to facilitate the timely release of the foreign prisoners
and their repatriation. The Court further directed the release of 28
prisoners from the Dhaka Central Jail (one of the 29 prisoners had already
died) within a month, whether or not the concerned embassies made a
response. The Superintendent of the Dhaka Central Jail was directed
to submit a report about their release within three months. The Inspector
General of Prisons was also directed to furnish full particulars of
the remaining 822 foreign prisoners across the country and to take steps
for their release and report to the Court.
This judgment demonstrates the pro-active role of the Court in protecting
and promoting human rights and fundamental rights of the vulnerable
sections of society. In this case, the Court not only proceeded suo
motu but also expressed its sincere intention for protection of
the human rights of the prisoners, by reaffirming the strict responsibility
of the government for the release of the prisoners and also by providing
some guidelines for future handling of similar problems.
There has
also been some action on the part of the executive in pursuance of the
judgement. The government contacted the concerned embassies regarding
the release of their respective citizens and was partly successful in
convincing them to take back their citizens. The Inspector General of
Prisons informed ASK in a letter dated 18 October,
2001 that 136 prisoners had been repatriated or ‘pushed back’
to their respective countries since the pronouncement of the judgment.
This information gives rise to another concern because it indicates
that the government is resorting to forced repatriation of prisoners
to neighbouring countries. There is scope for serious apprehension that
if prisoners are ‘pushed back’ across the border, their
safety and security may be at stake and they may fall into greater jeopardy.
This also contravenes the Court’s observation that; '…it
is the duty of the Government to ensure their safety and security after
their release18.' Recently the Inspector General of Prisons
informed ASK that the number of repatriated prisoners
had increased to 25019. The government was granted further time by the
Court to complete the repatriation process.
Even before this case, following a report in the Daily Star,
the High Court suo motu directed20 the authorities
of Dhaka Central Jail to produce a Nigerian citizen, Goddy Ochendo,
before the Court. He had been languishing in jail for five years even
after serving his sentence, but could not return home because the jail
authorities said he had no passport. The Court afterwards directed the
Nigerian Embassy to arrange for his repatriation and eventually Ochendo
was sent home. This case, in fact, paved the way for the release of
all foreign prisoners across the country who had served their term.
Right to Personal Liberty: Detention in Judicial Custody
It has been a long practice in our country to detain victims, particularly
women and children, in judicial custody without their consent. Though
there is no law, which sanctions such detention, the victims are kept
in government shelters, even in jails, for indefinite periods. Only
recently the Nari O Shishu Nirjatan Daman Ain, 2000 (Suppression
of Cruelty to Women and Children Act, 2000)21 has provided
for victims to be kept in shelters, other than jails, on the satisfaction
of the concerned tribunal that it is in the interest of the victim.
The confinement of victims in judicial custody against their will is
contrary to the fundamental right to personal liberty guaranteed in
Article 32 of the Constitution. The High Court Division, in Jesmin
Nahar vs. the State and another22, accordingly held that keeping
the victim-petitioner in judicial custody against her will was illegal.
In this case, the petitioner Jesmin Nahar was kept in judicial custody
according to an order passed by the Magistrate under the Nari o Shishu
Nirjatan Daman Ain, 2000. It was alleged in the first information
report that Jesmin disappeared from SOS Harman Minor School (sic),
having been incited by the ayah of the school and some other persons.
Police investigated the case and submitted a charge sheet against the
accused persons. Later on, the police arrested Jesmin and produced her
before the Magistrate and the Magistrate sent her to judicial custody.
Thereafter, she recorded a statement under Section 164 of the Code of
Criminal Procedure (1898), where she described a short history of her
past life and stated that she went to the house of one of the accused
voluntarily and that she did not make any allegation against any of
the accused persons. Subsequently, a petition was moved for her transfer
from jail custody to the custody of one of the accused persons, but
it was rejected. This gave rise to the cause of preferring a criminal
miscellaneous case under Section 49123 of the Code of Criminal Procedure.
The High Court, after considering the First Information Report, the
statement of Jesmin and Section 491, held that the detention of Jesmin
in judicial custody against her will was illegal and that the lower
Court was wrong in rejecting the prayer for her release. The Court observed,
A young woman at the age of 18 years cannot live in a hostile atmosphere.
Every woman of her age has (sic) a dream and aspiration for home, children
and a husband who could respect her feelings. But those hopes and aspirations
shall be confined within her mind and these hopes will be evaporated
if she is allowed to remain in judicial custody for further period.
So long she will be in judicial custody, she will be obsessed by fear,
tension and anxiety. There is no shadow of doubt that the climate of
her life will be conducive if she is released from judicial custody.
It is incumbent upon this court to take just and proper decision in
this regard taking into account about the well being of the petitioner.
In the above ambiance and circumstances, it is neither desirable non[r]
acceptable that a young girl of 18 years shall remain in an unwell environment
for an indefinite period. Hence we feel that our effort in this regard
may [be] able to create awareness in stopping social malady24.
The petitioner,
accordingly, was set at liberty and declared free to go wherever she
liked. The concerned Deputy Commissioner was directed by the Court to
ensure her release.
This judgment not only ended the illegal detention of one particular
victim, but also revealed the fact that judicial custody is a place
where the detainee becomes more vulnerable and lives in a hostile environment
for an indefinite period. It is a precedent, which lays down that the
indiscriminate exercise of granting judicial custody without the consent
of the victim is illegal.
Right
to Fair Trial: Children’s Rights
Children in Bangladesh become victims of unlawful trials leading to
illegal conviction and punishment. This is largely because lawyers and
judges are not sensitised to juvenile justice or aware about universal
child rights embedded in the Convention on the Rights of Child (CRC)
and other international conventions, ratified by Bangladesh. The Supreme
Court has tried to redress such violations over the years. To further
this, the High Court has reiterated in Bangladesh Legal Aid and
Services Trust (BLAST) and another vs. Bangladesh and others25
that the trial of a juvenile offender in a court or tribunal other
than the Juvenile Court is without jurisdiction and unlawful; and in
Monir Hossain (Md.) alias Monir Hossain vs. State26, the High
Court has upheld a child’s right to be heard in juvenile courts
as provided in the Children Act, 1974 and the CRC.
In BLAST vs. Bangladesh, the child convict Alamgir Hossain was charge-sheeted
under Sections 5(Kha) and 5 (Gha) of the Nari o Shishu Nirjatan
(Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children [Special
Provisions] Act, 1995), for allegedly throwing acid on a girl. The Nari
o Shishu Nirjatan Daman Bishesh Adalat (Special Court for the Suppression
of Cruelty to Women and Children), Comilla took cognisance of the case
and framed charges against Alamgir Hossain. The Special Court noted
that Alamgir Hossain was below 16 years at the time of the commission
of the offence; nevertheless the Court proceeded with the trial and
he was convicted and awarded a punishment of imprisonment for life.
Alamgir preferred appeal in the High Court Division against this judgment
with the help of BLAST,a non-profit legal aid organisation.
The High
Court held in its judgment that the Special Court erroneously tried
and punished Alamgir Hossain as the tribunal itself was convinced that
he was below 16 years at the time of occurrence and that the conviction
violated the provisions of the Children Act, 1974, the fundamental rights
guaranteed in the Constitution and also the directions of the Supreme
Court given in various judgments. The Court noted that in Section 5
of the Children Act, it has been clearly laid down that a Juvenile Court
has exclusive jurisdiction to take cognisance of the offences committed
by a child27, and the jurisdiction of the Nari o Shishu
Nirjatan Bishesh Adalat was excluded by this section as Alamgir
was admittedly only fourteen or fifteen years at the time of occurrence.
The Court, in support of its decision, endorsed two earlier decisions
cited by the advocate for the petitioners. In State vs. Deputy Commissioner,
Satkhira and others28 the High Court held that no child
is to be charged with or tried for any offence together with an adult.
Similarly, it was held in Shiplu and another vs. The State29
that any order of conviction and sentence passed by any court other
than the Juvenile Court in respect of an accused below 16 years is liable
to be set aside for being without jurisdiction. The Court also took
notice of an Indian case Sheela Barse and another vs. The Union
of India and others30, where it was observed 'If a child is a national
asset, it is the duty of the State to look after the child with a view
to ensuring full development of its personality.' In conclusion it declared
the trial of Alamgir Hossain by the Special Court as 'without jurisdiction
and without lawful authority' and the order of conviction as ‘void
ab initio’, and accordingly ordered his release. However, the
Court did not constrain itself only in passing the judgment; rather,
it took an initiative to restrain such ultra vires exercise by trial
courts. It directed the Registrar of Supreme Court to ask for an explanation
from the author-judge of the impugned judgment as to how he could award
sentence to a juvenile offender and ignore the Children Act, 1974, and
further directed to send a copy of the judgment to all Sessions Judges
advising them to discuss the Act with judicial officials. The Court
also directed the government to instruct law officers to take due care
in conducting the cases of juvenile offenders under the Children Act.
In the
latter case, Monir Hossain was convicted of raping a 9 year old girl
by the Nari o Shishu Nirjatan Daman Bishesh Adalat (Special
Court for Suppression of Cruelty to Women and Children), Comilla under
section 6(1) of the Nari o Shishu Nirjatan (Bishesh Bidhan)
Ain, 1995 (Cruelty to Women and Children [Special Provisions]
Act, 1995) and sentenced to life imprisonment. He preferred an appeal
to the High Court Division. At this stage, his lawyer submitted that
in view of a clear recital in the charge-sheet that the accused was
over 15 years and in view of a clear statement by the accused himself
that he was below 16 years, the Special Tribunal committed an error
of law in not directing an inquiry to ascertain as to whether the accused
was below 16 years and in proceeding with the trial. However, the High
Court Division found that at the trial stage of the case, no objection
was raised on behalf of Monir to the effect that he was a child and
that he was entitled to be tried in a juvenile court, although it is
an established rule of criminal procedure that the defence must raise
specific objections before the trial court.
In these circumstances, the Court stated that with the scant and inadequate
materials on record, it was very difficult, if not impossible, for the
Appellate Division to ascertain the actual age of the accused at the
time of framing of the charge and consequently, any objection before
the Appellate Division raised for the first time on the question of
the age of the accused must be viewed with disfavour, unless it is found
imperative in the interest of justice under given circumstances. It
then went onto examine whether there was any basis for the claim that
Monir had been a child below 16 years at the time of framing of the
charge. The Court took account of the statement in the charge sheet
that Monir Hossain was about 15 years on the day of submitting the charge
sheet against him. The Court also found, from an order of the trial
court, that the prayer for the accused was specifically grounded on
the fact of his being a ‘minor’. Therefore, it held that
although the question of Monir being a minor was raised before the trial
court, it was not specifically pressed for an answer and, given that
a life sentence had been imposed and the age of the accused on the date
of framing charges was a matter of great importance touching the jurisdiction
of the Court, it was necessary in the interest of justice for the trial
court to direct an inquiry to satisfy itself as to whether the accused
was a child below 16 years. The Court, consequently, set aside the conviction
and sent the matter back to the trial court for a fresh hearing of the
case, in accordance with law and in light of the observations regarding
the assertion that the accused was a child. The Tribunal was also directed
to dispose of the matter expeditiously within two months from the date
of receipt of the case-records.
This is a case where the Court manifested the need to uphold the right of juveniles in spite of apparent technical disadvantages. Internationally recognised developments in child rights and the rule laid down in the Children Act that a child (within the meaning of the Act) has to be dealt with only under the Children Act, in consonance with principles of juvenile justice, was given utmost importance in this case. It also set a precedent that the trial court had a positive, if not strict, obligation to ascertain, whenever there was a reason to do so, whether an accused was a child or not, regardless of whether it was specifically pleaded by the defence or not.
Workers’
Right to Safety: Fire Accidents in Garment Industries
The High Court Division recognised the case to be in the nature of public
interest litigation31, stating that the application had been filed by
the petitioner not for any personal relief, but in respect of an issue
of public importance relating to workers engaged in factories in the
country and, in particular for the safety of the workers in garment
factories in cases of fire, accident or emergency. The specific context
for the filing of the petition was some reports of fire accidents in
the respondent-factories resulting in the death of a high number of
workers, due to non-compliance with the provisions of the Factories
Act, 1965 and the Fire Services Ordinance, 1959.
The petitioner submitted that in the last few years, more than fifty-five
separate incidents of fire in the garment factories had resulted in
the deaths of about 134 workers and injury to more than a thousand others.
Most of these incidents had been reported in the national media. The
petitioning organisation’s independent investigations into the
reasons for the outbreak of fire in certain factories pointed to the
failure of the respective factory management to comply with safety requirements
as laid down by law. They also found that the Chief Inspector of Factories
and the Director General of Fire Service and Civil Defence had failed
to perform their duties regarding inspection of the factories. Specifically,
the investigations revealed that:
the gates
of the factories were locked at the time of outbreak of fire, in direct
violation of Section 22(3) of the Factories Act;
free passage
ways giving access to means of escape in case of fire as required by
Section 22(6) of the Act were not maintained;
no measures
were taken to familiarise workers with means of escape in case of fire
or emergency, in violation of Section 22(7);
no means
of warning as required by Section 22(5) of the Act were found in the
factories;
no emergency
exits in case of fire were found in the factories, which was in violation
of Section 22(1) of the Act and Rule 51(1) of the Factories Rules;
no fire
bucket, as under Rule 52(1), was found in the factories;
no portable
fire-extinguisher, as under Rule 52(2) was found;
fire-extinguishers,
as required by Rule 52(4), were not found;
no trained
officer was assigned for the proper maintenance and upkeep of fire-fighting
equipment, in violation of Rule 52(10);
no ‘Fire
Safety Plan’, as required by Rule 52(1), was prepared by the factories;
no drum
of water of 40/50 gallons or water bucket was found as required by Section
6 of the Fire Service Ordinance;
the fire
service license was not renewed under Section 8(3) of the Ordinance;
and no
sand bucket was found in the factories as required by Section 6 of the
Ordinance.
The Court
accepted these findings of lapses and negligence on the part of several
authorities, including the owners of the garment factories, the owners
of the premises on which the factories were set up; the Chief Inspector
of Factories and the Director General of Fire Service and Civil Defence.
It found each of them to be negligent in performing their duties and
complying with the requirements of law providing for the safety and
security of the workers. The Court also expressed the view that workers'
deaths could have been avoided if the Chief Inspector of Factories,
the Director General of Fire Service and Civil Defence, their concerned
officials and the factory owners had performed their duties and obligations
in accordance with the respective laws.
The Court proposed that the Inspection Committee constituted under the
Director General of Fire Service and Civil Defence, which was to conduct
regular weekly inspections in the factories and to give necessary advice
to the management regarding safety and fire protection, should include
representatives of workers and financial institutions. It observed that
it would require some legal protection or coverage so that its recommendations
would receive due weight and the authorities concerned would be bound
to implement its recommendations and in default, to suffer consequences.
The Court also proposed the setting up of another committee by the government
at the national level to supervise acts and omissions on the part of
the factory owners, the factory-premise owners and the employees and
officials of the offices of the Chief Inspector of Factories. This National
Committee would oversee the implementation of relevant laws, the setting
up and operation of factories, with authority to form regional committees
if required, with necessary legal coverage binding all concerned to
implement its recommendations and directions. Failure to implement the
recommendations of the committee, would result in punishments, including
disability to obtain loan facility from financial institutions or banks
in the form of running capital for carrying on any trade or business
or for the operation of any industry. The Court also proposed the composition
of the committee, which was to be led by the Director General of Fire
Service and Civil Defence to consist of representatives from:
(i) Ministry of Home Affairs,
(ii) Ministry of Commerce,
(iii) Ministry of Industries,
(iv) Board of Investment,
(v) City Corporation,
(vi) Federation of Bangladesh Chamber of Commerce and Industries
(FBCCI),
(vii) Bangladesh Garments Manufacturers and Exporters Association
(BGMEA),
(viii) Export Promotion Bureau,
(ix) Chief Inspector of Factories,
(x) Rajdhani Unnayan Kortripokkho (RAJUK),
(xi) Workers' Association and
(xii) Bankers' Association or Bangladesh Bank. However,
the Court directed that the office space and the necessary staff, including
a full-time secretary of the committee, was to be provided by the BGMEA
out of its fund.
This judgment
has upheld the workers’ basic right to safety and security, inasmuch
as it did not limit its findings within the parameters of the duties
and obligations of the respondent government offices and the factory
owners only, but also gave directions for the establishment of a mechanism
involving all concerned quarters, including both the public and the
private sectors.
The judgment has yet to be implemented because in the meantime BGMEA
filed a Civil Petition for Leave to Appeal in the Appellate Division.
The alleged grounds on which BGMEA has prayed for leave of the Appellate
Division, among others, are that the High Court Division was wrong in
requiring a valid fire license as a precondition for granting loan or
credit; it was also wrong in directing that office space and the necessary
staff of the proposed national level committee be provided by BGMEA.
The hearing of the petition is still pending due to the huge backlog
of cases in the Appellate Division, which will indefinitely defer implementation
of the High Court judgment.
Environmental
Rights
The Appellate Division in Rajdhani Unnayan Kortripokkho (RAJUK)
and another vs. Mohshinul Islam and another32 gave directions
for protecting the environment of Dhaka City and providing an environment-friendly
interpretation of urban development.
Mohsinul Islam received an allotment of a plot from RAJUK (Dhaka city
development authority) in Uttara Model Town on which he constructed
a house for his family. The layout plan attached to the lease deed provided
for a vacant space to be maintained for a park, playground, community
centre and school, but subsequently RAJUK either converted the entire
or part of the vacant space into plots, in violation of the promise
made to the allottees at the time of allotment. RAJUK, however, contended
that Section 40(b) of the Town Improvement Act, 1953 empowered them
to alter layout plans at any time and, in the instant case, the layout
plan was changed converting some open space into plots in order to meet
increased demand for residential plots by the large number of city dwellers.
The High Court Division did not accept this contention and declared
that the alteration in the original layout plan was made without any
lawful authority; it gave a direction to RAJUK not to change the nature
and character of the lands earmarked in the original layout plan for
community purpose, recreation and other non-residential purposes.
Section 40 of the Town Improvement Act provides for improvement schemes,
which may be undertaken by RAJUK. Sub-Section (h) provides for the formation,
retention or enlargement of open spaces. The High Court held that it
was clear that it was the duty of RAJUK to provide for parks, open spaces,
playgrounds or similar amenities for improvement of a new township Uttara
Residential Model Town. Therefore, although Sub-Section (b) provides
power to RAJUK for the “laying out or relaying out of the land'
in the area, it has to be for improvement and it cannot curtail or diminish
open spaces kept for common use.
Following an appeal before the Appellate Division, the judges referred
to the Indian case Bangalore Medical Trust vs. BS Mudappa33
and to its own earlier judgment, in Giasuddin vs. Dhaka Municipal
Corporation34, where it was observed that a public park is necessary
for protecting health and hygiene of the inhabitants of the area by
providing open space and gardens.
The Appellate
Division upheld the decision of the High Court Division and observed
that although under Section 2(h) of the Town Improvement Act, RAJUK
may alter the layout plan, and this power must be exercised for the
purposes of improvement. Parks and open spaces enjoyed by allottees
of a planned township cannot be converted into residential plots. The
Court also stated emphatically that conversion of such open spaces and
parks into residential plots is not an improvement by any means and
therefore exercise of such power is contrary to the purpose for which
it is conferred under the Town Improvement Act.
This judgment not only provides a guideline for future environment-friendly
urban planning but also gives a new interpretation to the term ‘improvement’,
which will definitely go a long way in protecting and promoting the
environmental rights of the citizens, in general and the inhabitants
of the metropolitan areas, in particular. This decision is also an instance
that our courts are sensitive to the protection of the environment and
that the judiciary has a responsibility to see that administrative decisions
are environment-friendly.
Right
to Non-Discrimination: Citizenship Rights
The High Court Division, on a number of earlier occasions, has given
judgments persistently upholding the right of citizenship acquired by
birth and the judgment given in Annada Prosad Das vs. DC, Khulna
and others35 reflects this trend.
Annada Prosad was born in village Dasani, Bagerhat Police Station, formerly
in Khulna District. His parents were permanent residents of that village.
He owned both moveable and immovable property in Bagerhat. He went to
India during the War of Liberation in Bangladesh to save his life and
returned after independence in December 1971. The defendants alleged
that he was an Indian citizen and the Police served a notice upon him
directing him to leave the country by 10 July 1972. It was also alleged
that Annada Prosad left the country in 1965 with his family members
permanently, although it was admitted by the defendant that he returned
to the country after the war and was staying in his village home ‘illegally’.
The High Court Division, at the very outset of its judgment, cited Article
6(1) of the Constitution that the citizenship of Bangladesh shall be
determined and regulated by law; and Section 2 of the Bangladesh Citizenship
(Temporary Provisions) Order, 1972 (President’s Order No. 149
of 1972) prescribes the criteria for obtaining citizenship by birth36.
The Court then referred to two decisions determining citizenship, namely
Mirza Shaheb Ispahani vs. Bangladesh and Bangladesh37
vs. Professor Golam Azam38 and endorsed the view already taken
by the Supreme Court that a person’s citizenship cannot evaporate
simply because of a temporary absence from the country.
The Court interpreted the provisions of the President’s Order
No. 149 that the law makers had conceived that disputes regarding citizenship
would only arise in the case of persons who were absent from Bangladesh
on 25 March, 1971 and lived in any other country which was inimical
to the War of Liberation in Bangladesh. The Court found that Annada
Prosad was residing in India temporarily, so his activities could not
be considered at all against the spirit of the war in Bangladesh. It
also observed that India was not inimical to the liberation war but
had a friendly relationship with Bangladesh.
The Court
unequivocally stated that the right of citizenship acquired by birth
cannot be lost or destroyed unless it is proved that it has been given
up and the person has acquired citizenship of any other country. Citizenship
by birth is a complete legal right and a vested constitutional right
which cannot be taken away or denied or lost with respect to a particular
citizen due to temporary absence from Bangladesh or residence in any
other country for a considerable number of years, unless and until it
is found that s/he has abandoned or renounced her/his citizenship and
acquired citizenship of another country.
The Court referred to the Indian case of Mohammad Ayub Khan
vs. Commissioner of Police, Madras39 and endorsed
its spirit that unless and until the citizenship of a particular person
in the manner as prescribed by rules terminates, the original citizenship
cannot be lost or denied to them. It also referred to another Bangladeshi
case, government of Bangladesh vs. Abdul Hoque40, where it
was held that temporary absence of a person from his country of birth
and temporary residence in a foreign country at war or being engaged
in military operation against Bangladesh, preventing him from returning
home, shall not disqualify him from being deemed to continue to be resident
in Bangladesh under the provisions of the President’s Order No.
149 of 1972.
Right
to Life: Forced Eviction of Slum Dwellers
The right of urban slum dwellers not to be evicted from their homes
without sufficient notice and prior arrangement for their rehabilitation
had been upheld by the Supreme Court of Bangladesh in several earlier
cases. The case of Kalam and others vs. Bangladesh and Others41
is an instance where the Court, in line with those decisions, took a
sympathetic view of slum dwellers’ right to shelter.
The petitioners in this case resided in about 30 thatched shanty houses
in Belalabad Bosti, located behind Holy Family Red Crescent Hospital
in Dhaka. They had been living in that slum for about 30 years. On 16
April, 1994, the Ministry of Works and Urban Development, without any
prior notice or announcement, started demolishing the shanty houses.
At that time, a resident of Belalabad Colony and a journalist of repute
rushed there, and at her request, the demolition operation was stopped.
But the petitioners, being apprehensive of further attempts at forced
eviction from the slum, filed a writ petition in the High Court Division.
It was submitted on behalf of the petitioners that they were poor helpless
persons, uprooted from different villages across the country, who had
found work in Dhaka so as to survive with their families. With the consent
of the original owner of the Belalabad Colony, they had raised small
shanty huts in order to seek their livelihood. They submitted that they
did not claim any proprietary right over the lands on which they raised
the shanties and that their only prayer was to allow them to live in
those shanties. They cited the High Court’s earlier decision in
Ain o Salish Kendra (ASK) and others vs. government
of Bangladesh and others42 in support of their contention.
The Assistant
Attorney General candidly conceded the plight of the slum dwellers of
the Belalabad Bosti and assured the Court that the government was planning
to find a suitable arrangement for the petitioners and other slum dwellers
so that they were not thrown to the street without shelter. The Court
observed that,
Bangladesh came into being as a fulfillment of the dreams of the
millions of Bangalis so that they can breathe in an independent country
of their own. They knew that their country is not rich, but expected
that social justice shall be established and the people shall be provided
with the bare minimum necessities of life43.
The Court pointed out that the petitioners were pleading for a place
so that they could earn their own livelihood and survive. The Court
went on to observe, 'it should not be forgotten that God in His unbounded
mercy provides sunshine, air, water, food and all other amenities of
life for all, high or low, rich or poor, for every living being, without
any discrimination44.' The Constitution of Bangladesh envisaged
a welfare state and held all citizens equal in the eye of the law, as
such all citizens have got equal rights in every sphere of life including
food, shelter, health care and education which are fundamental in nature.
The Court remarked that it is not the fault of the slum dwellers that
their government fails to provide them with such bare necessities of
life and that,
…they are only struggling a losing battle to earn for themselves
and to care and provide the bare minimum necessities of life to their
children, which are the primary objectives of any democratic government.
After all, the slum dwellers, poorest of the poor they may be, without
any future or dreams for tomorrow, whose every day ends with a saga
of struggle with a bleak hope for survival tomorrow, but they are also
citizens of this country, theoretically at least, with equal rights.
Their fundamental rights may not be fully honoured because of the limitations
of the State, but they should not be treated, for any reason, as slaves
or chattels, rather as equal human beings and they have a right to be
treated fairly and with dignity, otherwise all commitments made in the
sacred Constitution shall prove to be a mere mockery45.
The Court,
however, refrained from giving any direction to the government and accepted
the assurance given on behalf of it that the petitioners and other slum
dwellers of Belalabad Bosti will not be evicted without rehabilitation,
according to the programmes of the government in this respect.
This case illustrates that cooperative efforts by the executive and
the judiciary may contribute to promoting and safeguarding the right
to shelter of slum dwellers and other basic necessities of the vulnerable
section of the society. Various human rights' organisations have challenged
evictions in the Court for over a decade now. The first writ petition
challenging the eviction of Taltola Sweeper Colony at Gulshan was filed
in 1989 and a stay order against eviction operation was obtained. Since
then several writ petitions have been filed in the High Court challenging
forced eviction of slum dwellers without sufficient notice and alternative
arrangement for their rehabilitation. In at least two of such cases46,
the High Court laid down guidelines for the rehabilitation of the slum
dwellers and stated that forced eviction without any alternative accommodation
and rehabilitation was unlawful. The executive, however, has failed
to heed such directions and successive governments have persisted in
evicting slums with use of force and without undertaking any resettlement
plan. The judgments against slum evictions thus have become almost infructuous
in the face of the defiance and obstinacy of the executive.
Right
to Equal Protection of Law: Victim’s Rights
The duty of the court in a criminal proceeding is not only to adjudicate
upon the allegations made against the accused, but also to see that
the safety of the informants or complainants is not jeopardised because
of their involvement in the proceeding. This has been reiterated in
Tayazuddin and another vs. The State47,
where the High Court Division has endeavoured to view the question of
the safety of the victims of an offence from the perspective of their
fundamental rights.
Ferdousi Begum, a 15 year-old girl and an examinee of the Secondary
School Certificate Examination, was burnt with acid allegedly thrown
by Shakawat Hossain. It was alleged in the First Information Report
that Shakawat used to proposition her whenever he found her alone. Shakawat’s
father and uncle were informed of his behaviour but instead of disciplining
him, they instigated him to harass her. Eventually on 10 February 2000,
in a pre-planned way, Shakawat entered Ferdousi’s house and poured
acid on her head, burning her head, face and different parts of the
body. Some parts of the bodies of her brother’s wife and her aunt,
who were nearby, were also burnt. Shakawat then fled. A case was filed
accusing Shakawat, his father and his uncle. The latter two had filed
a Criminal Appeal in which this judgment was given.
During
the investigation conducted by the police, three witnesses confirmed
that the father and uncle instigated Shakawat to keep propositioning
Ferdousi and that they also exerted pressure on Ferdousi’s guardians
for her marriage with Shakawat. When her guardians refused to comply,
they instigated Shakawat to punish Ferdousi. Accordingly, Shakawat’s
father and uncle were also charge-sheeted under the Nari O Shishu
Nirjatan (Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children
[Special Provisions] Act, 1995). The uncle was arrested and granted
bail by the Nari O Shishu Nirjatan Bishesh Adalat (Cruelty
to Women and Children Special Court), Dinajpur. Later the father also
surrendered to the court and was granted bail.
However, on the date fixed for framing charges, the informant filed
a petition for cancellation of the bail of the two accused, alleging
that after their release on bail they were threatening the informant
to withdraw the case. The informant also claimed that the father and
uncle of Shakawat were threatening to kill anyone who gave evidence
against them. Being terrorised by such threats, one of the witnesses
filed a G.D. Entry. The trial court having heard both parties then cancelled
the bail of the father and the uncle. Aggrieved by this order of cancellation
of bail, the defendants preferred an appeal to the High Court, which
was contested by the State and also by the victim Ferdousi and her mother.
The High Court observed that the granting of bail in a non-bailable
offence is a concession allowed to accused persons and it presupposes
that this privilege is not to be abused in any manner. The grant of
bail is a sort of trust reposed in an accused person by the Court. If
it is found that the trust has been betrayed or the liberty granted
has been abused, s/he disentitles her/himself to the privilege so granted.
If it appears that it is no longer conducive to a fair trial if an accused
person is allowed to retain her/his freedom during trial, the bail is
to be cancelled and the accused person is to be committed to custody.
The Court cautioned that indiscriminate bail enables the accused to
exploit opportunities to interfere with the cause of justice by intimidating
and suborning the witnesses.
Regarding the offence that gave rise to the initiation of the criminal
proceeding, the Court stated that the crime of acid throwing is a 'a
crime against humanity and society. In this type of dehumanising act,
society’s cry for justice becomes louder48.' The Court observed,
the crime was revolting and the perpetrators of the crime must be dealt
with to reflect public abhorrence of the crime.
The Court then observed that Article 27 (guaranteeing the right to equality
before the law), Article 31 (the right to enjoy equal protection of
law) and Article 32 (the right to life and personal liberty) of the
Constitution, read together impose a duty and obligation on the State
to protect and safeguard a citizen and ensure his/her security. The
Court also cited Article 3 of the Universal Declaration of Human Rights,
which states that everyone, has a right to life, liberty and security
of person. It noted that the informant, the victim, the mother of the
victim and the witnesses in this case were entitled to protection of
these rights by the State, acting through its law enforcing agencies
and machinery. The Court then observed that in a democratic country
governed by rule of law, the government is responsible for ensuring
free and fair trial not only to the accused but also to the victims.
It emphasised that 'the Court is not only to see the right of the accused
persons, but also to see the right of the victim of crime and society
at large. The Court is to see that the victim of crime can have a trial
free from all fear and insecurity49.' Accordingly, the High Court Division
concluded that in the interest of fair play, fair trial and justice,
the accused were not entitled to remain free by way of bail but that
they were to be put behind prison bars.
In this
case, the Court went further and prescribed measures for the safety
and security of the victim and witnesses as well. It directed the Secretary,
Ministry of Home Affairs, the Inspector General of Police, the Deputy
Inspector General of Police, Rajshahi Range and the Superintendent of
Police, Dinajpur to take all steps to secure the safety of the informant,
the victim and witnesses and to apprehend the absconding perpetrator
of the crime.
This judgment promises to impact on the system of the administration
of criminal justice in the country, inasmuch as it sets a precedent
that the Courts must weigh the rights of both the accused and the complainant
in an even manner in order to ensure that the scales of justice are
balanced.
Right
to Justice: Public Safety Act
The split decision50 by a two-member
Division Bench of the High Court on the constitutionality of the Public
Safety Act, 2000 (PSA) drew much public attention and was widely covered
by the media. This verdict, though divided, might also have an impact
on the later political decision to scrap the law in entirety. Although,
according to the Supreme Court Rules, the matter was to be finally adjudicated
by another single bench constituted by a senior judge, the repeal of
the law itself rendered it redundant to continue another hearing regarding
the validity of the law.
A total of 48551 writ petitions were filed separately in
the Supreme Court challenging the constitutionality of the Public Safety
Act, but the submissions were heard together by the concerned bench
for convenience. The hearing continued for twenty-four working days52
and every phase of the hearing was extensively reported in the media.
At the very outset of the hearing, the Act was virtually declared ‘clinically
dead’ as the government was issued a rule nisi in more than two
hundred cases and was directed not to arrest or harass more than two
thousand persons accused in relation to those cases53.
One of the most contentious issues raised by the petitioners during
the hearing was the passing of the Act as a Money Bill. In his submission,
Barrister Syed Ishtiaq Ahmed argued that the government had committed
a constitutional fraud by placing the PSA as a Money Bill before the
Parliament. He submitted that the PSA had curbed inherent rights of
the Court, such as the power of revision, through violating Articles
114, 101 and 7 of the Constitution. The other issues of debate were
that the Act contained provisions, which were capable of being applied
in a discriminatory manner, against the political opponents of the ruling
political party. The police were invested with excessive power, which
was capable of being abused, and the Act had denied the right of the
accused to get bail.
After a lengthy hearing, Justice M. A. Aziz made his rule ‘absolute’
declaring PSA ultra vires the Constitution and that it should be taken
out of the statute book forthwith. He also declared that the pending
proceedings against the petitioners were illegal and without lawful
authority. He stated in his judgment,
In view of the fact that PSA which was passed as a Money Bill was
not in fact a Money Bill under Article 81 [of the Constitution] and
the certificate issued by the Speaker that the PSA was a money bill
having transgressed the above article and denied the Constitutional
Prerogative of the President under Article 80(3), as well as Articles
7, 27, 31, 33, 33, 65(1), 101, 116A of the Constitution, the PSA is
found to be and declared ultra vires the Constitution and as such void54.
He also observed the PSA proved infructuous due to its extensive misuse
by police55. Citing a few incidents of malicious application on innocent
people, the judge stated that the chain of command within the police
force was breaking down and the police were being corrupted due to this
law. 'The sooner the dead child is buried the better,' he observed.
Justice
Shamsul Huda, however, did not declare the law to be unconstitutional
as a whole, rather stating in his judgment that only Sections 18(b)
and 16 of the Act, dealing respectively with summary recording of evidence
and denial of bail, were liable to be repealed. He observed that it
is illegal to deprive anybody of his or her right to pray for bail;
even in case of non-bailable offences, it is within the court’s
jurisdiction to decide about granting or refusing bail and therefore,
Section 16 of the PSA restricting the right of bail was against the
general principles of criminal trial and also was repugnant to the Constitution.
This split verdict, though different in its implications, did not differ
in spirit that the contents of the PSA were not conducive to establishing
rule of law in the country. Though the judgments were not sufficient
to scrap the law as a whole, they virtually halted the application of
the law and thousands innocently accused were set free. These judgments
could caution future attempts to enact similar harsh laws. The PSA has
been replaced by another restrictive law Ain Srinkhala Bhangakari
Oporadh (Druto Bichar) Ain, 2002 (Offences Disrupting Law and Order
[Summary Trial] Act, 2002), which claims to address a ‘quick disposal
of cases related to disruption of law and order’, but may be used
as a tool of oppression.
Pending Matters
The Supreme Court, in 2001, not only delivered notable judgments after
finally disposing of the particular cases, but issued rule in some matters
involving public interest of grave importance which are pending for
disposal and also granted ad interim remedy in some of those cases.
The issuance of rules in these matters signified that the Court appreciated
the prima facie cause of representing those matters in Court in the
form of public interest litigation.
Arsenic
Crisis
On 1 July, 2001, the High Court issued a rule nisi against the government
to show cause in three weeks as to why the indiscriminate and continuous
sinking of deep and shallow tube wells should not be declared without
lawful authority. The government was also asked to answer why they should
not be directed to earmark, immediately, the arsenic contaminated areas,
stop drinking of water containing more than 0.5 mg arsenic per litre
and developing alternative sources of drinking water conforming to the
guidelines of the World Health Organisation. This rule was issued in
a writ petition jointly filed by two arsenic patients, Dhaka Community
Hospital and a voluntary organisation named Brotee. The hearing is pending56.
Corruption
The High Court issued rule nisi against the government to show cause
in six weeks as to why it should not be directed to recover arrears
telephone bill from defaulting Members of Parliament and also asked
to supply a list of those MPs in one month57. Petitioner organisation
Bangladesh Legal Aid and Services Trust (BLAST) stated in its petition,
that the unpaid arrear telephone bill from 266 Members of the Fifth
Parliament amounted to more than Taka 45 million and from 216 Members
of the Seventh Parliament amounted to about Taka 35 million. However,
the Bangladesh Telegraph and Telephone Board did not take any measure
to recover the bill, nor did they disconnect the telephones. This matter
awaits disposal.
Hawkers
Eviction
The government was asked by the High Court to show cause as to why the
eviction of hawkers from different streets without implementing an alternative
arrangement by the Dhaka City Corporation should not be declared to
be illegal and without lawful authority. The Chhinnamul Hawkers League
filed the writ petition58.
However, in an earlier case, the High Court judgment directed the government,
without prescribing any specific alternative measure, to free the city
streets of hawkers. The two contradictory judgments have created confusion.
Prisoners
and Prisons
The High Court, upon a writ petition (W.P. No. 3421/2001) by Ain o Salish
Kendra (ASK) issued rule asking the government to show
cause in three weeks as to why the use of bar fetters in prisons should
not be declared illegal59.
This organisation obtained rule in two other cases60 to this effect
in 1995 and 1997, but these have yet to be disposed of. This delay has
caused a serious violation of the prisoners' right to freedom from torture
and inhuman treatment.
The same organisation filed another writ petition (W.P. No. 3679/ 2001),
in response to which the High Court asked the government to show cause
as to why it should not be directed to ensure that the conditions of
the prisons across the country and the amenities of the prisoners are
maintained in accordance with the provisions of the Jail Code and other
standards. The final hearing of the petition is still pending.
Conclusion
While it is very encouraging that the apex court of the country has
produced some pro-active and positive judgments and has initiated some
public interest proceedings during the span of a year, it is very frustrating
to see that a huge number of cases, of which many involve public interest
of great importance, are pending for disposal for many years. This large
backlog of cases in the Supreme Court poses a threat that the public
interest involved in these cases may ultimately be ignored even if a
positive judgment comes at end. Very recently it was disclosed in Parliament
that a total of more than 10 million61 cases were
awaiting disposal in both divisions of the Supreme Court. The Chief
Justice himself admitted in a meeting that the judiciary is losing the
confidence of people that it had once enjoyed62.
Therefore, a strong and effective role of the judiciary in advancing
human rights, rule of law and public interest presupposes the timely
disposal of matters before it. If the huge backlog of cases cannot be
resolved immediately, one way of protecting public interest may be to
prioritise such matters in their disposal. However, there is hardly
any alternative to swift and effective management of cases as long as
we intend to ensure and promote the idea of justice.
References
ASK,
2001, Human Rights in Bangladesh 2000, Dhaka.
Iyer, J. Krishna, Human Rights, Judicial Process and Public Interest
Litigation, in Aminul Huq Memorial Lecture Series, ASK
and BLAST, Dhaka 2000.
Laski, Harold J., 1992, Grammar of Politics, Third Indian Reprint.
Sidgwick, H.
(1) Per
Bimalendu Bikash Roy Chowdhury, J., 21 BLD (AD) (2001) 69.
(2) 53
DLR (2001) 138. Judgment delivered on 24 October, 2000.
(3) One of these was by Mr. Mainul Husein, the
then President of Supreme Court Bar Association, another by Mr. Rafique-ul
Huq, Senior Advocate and 338 other Advocates of Bangladesh Supreme Court
and a third by Mr. Moudud Ahmed, MP, on behalf of 110 members of the
Parliament.
(4) 53 DLR (2001) 138, at p. 142, para. 10.
(5)
Ibid.,
p.151, para. 55.
(6) Article
39(2) reads, “Subject to any reasonable restrictions imposed by
law in the interests of the security of State, friendly relations with
foreign States, public order, decency or morality, or in relation to
contempt of Court, defamation or incitement to an offence, (a) the right
of every citizen to freedom of speech and expression; and (b) freedom
of press, are guaranteed.
(7) In
Razina vs. Metropolitan Police Commissioner, Ex Parte Blackburn (1968)
2 All ER 319: (1968) CA 150.
(8) Ataur
Rahman Khan vs. Mohammad Nasim and another, 52 DLR (2000) 16; discussed
in Human Rights in Bangladesh 2000, ASK, p. 14 to 21.
(9) 53
DLR (2001) 1.
(10)
These
included the Bangladesh Society for the Enforcement of Human Rights
(BSEHR), the Bangladesh National Women’s Lawyers Association (BNWLA),
Bangladesh Manabadhikar Sangbadik Forum (Bangladesh Human Rights Journalists’
Forum) and Ain o Salish Kendra (ASK).
(11)
53
D.L.R. (2001) 1, in p. 9, para.10, per Mr. Md. Fazlul Karim J.
(12) Ibid.,
in p.10, para.11, per Md. Fazlul Karim J.
(13) AIR
1986 (SC) 180.AIR 1986 (SC) 180.
(14) 53 DLR (2001) 1, in p. 18, para.35, per Md.
Fazlul Karim J.
(15) Dr.
Faustina Pereira, Advocate, Supreme Court vs. State and others, 53 DLR
(2001) 414: 21 BLD (HCD) (2001) 499.
(16) Also coordinator of the Advocacy Unit of
ASK.
(17) Ibid., at p. 416, para 10, per Md. Hamidul
Haque J.
(18) Supra
note 18.
(19) He
gave this information in response to a telephonic enquiry from an ASK
lawyer.
(20) On 5 February 2001.
(21) See
Section 31.
(22) Criminal
Miscellaneous Case No. 7782 of 2000. Judgment delivered on 27 March
2001, and published in the Daily Star on 26 August 2001.
(23) Section
491(1): The High Court Division may, whenever it thinks fit, direct
that a person within the limits of its jurisdiction be brought up before
the Court; that a person illegally or improperly detained in public
or private custody within such limits be set at liberty.
(24) Para 15. Per Mr Altaf Hossain Khan, J.
(25) 7
BLC (2002) 85. Judgment delivered on 6 November, 2001.
(26) 53
DLR (2001) 411, Judgment delivered on 9 July 2001.
(27) According to Section 2 (f) of the Children
Act, 1974, a ‘child’ means a person under the age of 16
years.
(28) 45 DLR 643.
(29)
49
DLR 53.
(30) AIR 1986 (SC) 1977.
(31) Salma Sobhan, Executive Director, Ain o Salish
Kendra (ASK) vs. Government of Bangladesh and others, Writ Petition
No. 6070 of 1997, Judgement delivered on 31 May, 2001.
(32) 53 DLR (AD), 2001, 79. Judgement passed on 3
May 2001.
(33) AIR 1991 (SC), 1902. It was held in this
case that '…when the law requires an authority to act or decide,
if it appears to it necessary or if he is of opinion that a particular
act should be done, then it is implicit that it should be done objectively,
fairly and reasonably. Decisions affecting public interest or the necessity
of doing it in the light of guidance provided by the Act and rules may
not require intimation to persons affected yet the exercise of discretion
is vitiated if the action is bereft of rationality, lacks objective
and purposive approach. The action or decision must not only be reached
reasonably and intelligibly, but it must be related to the purpose for
which power is exercised. The purpose for which the Act was enacted
is spelt out from the preamble itself, which provides for establishment
of the Authority for development of the city of Bangalore and areas
adjacent thereto. To carry out this purpose, the development scheme
framed by the Improvement Trust was adopted by the Development Authority,
any alteration in this scheme could have been made as provided in Sub-Section
(4) of Section 19 only [if] it is resulted in improvement in any part
of the scheme. As stated earlier, a private Nursing Home could neither
be considered to be an amenity nor it could be considered an improvement
over necessity like a public park. The exercise of power, therefore,
was contrary to the purpose for which it is conferred under the statute.'
(34)
1997
BLD 577. The Court observed in this case, 'The structure cannot be allowed
to occupy the same on the plea of their indispensable accommodation
to protect their life to the detriment of health and hygiene of the
inhabitants of the area and the corporation is under legal obligations
to evict such unauthorised occupants from the park and other facilities
meant for public convenience and for maintaining the environment free
from pollution and degradation.'
(35) 53 D.L.R. (2001) 496. Judgment delivered
on 28 June 2001.
(36)Section 2 of the Order states that every person
shall be deemed to be a citizen of Bangladesh whose father or grandfather
was born in the territories now comprised in Bangladesh and who was
a permanent resident of such territories on the 25th day of March, 1971
and continues to be a resident; or who was a permanent resident of such
territories on the 25th day of March, 1971, continues to be a resident
and is not otherwise disqualified from being a citizen by or under any
law for the time being in force.
(37) 40 DLR (AD) 116.
(38) 46 DLR (AD) 192.
(39) AIR
1965 (SC) 1623.
(40) 1982 BCR (AD) 143.
(41) 21 BLD (HCD) (2001) 446. Judgment delivered on 30 April
2001.
(42) 19 BLD (1999) 488. Judgment delivered on 29 July 2001.
(43) 21 BLD (HCD) (2001) 446, in p. 448, para. 6 per Mr A.B.M.
Khairul Haque J.
(44) Ibid.
(45) Ibid.
(46) One is Ain o Salish Kendra (ASK) and others vs. Government
of Bangladesh and others [19 BLD (1999) 488], and the other is Modhumala
vs. Government of Bangladesh (W.P. No. 59 of 1994).
(47) 21 BLD (HCD) (2001) 503. Judgment delivered on 29 July
2001.
(48) Ibid., in p. 509, para. 25, per A.K. Badrul Huq J.
(49) Ibid. in p. 510, para. 26.
(50) Judgments were delivered on 12 July 2001.
(51) Jugantor, 13 July 2001.
(52) Ibid.
(53) Sangbad, 11 June 2001.
(54) Daily Star, 13 July 2001
(55) Jugantor, 13 July 2001.
(56) Prothom Alo and Ittefaq, 2 July 2001.
(57) Sangbad, 27 May, and Bhorer Kagoj, 28 May 2001.
(58) ttefaq, 20 August 2001.
(59) Sangbad, 7 August 2001.
(60) W. P. No 2678/95 and W. P. No 2852/97.
(61) Jugantor, 4 February 2002.
(62) Daily Star, 9 December, 2001.