From the Court Corridor: January Edition

In this blog, I have curated notable decisions of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court of Bangladesh in January 2020.

Banning single-use plastic products within one year

Bangladesh Environmental Lawyers Association (BELA) and ten other rights organizations jointly filed a public interest litigation (PIL) submitting that single-use plastic items (eg cotton buds, plastic bottles, bags and plates, food packaging, plastic cutleries) were seriously harming the marine ecology after being thrown away as wastes. They argued that it was a violation of the fundamental rights to life, health, and environment of the citizens. The HCD then ordered the government to ban all single-use plastic products from all the hotels, motels, restaurants, and coastal areas throughout the country within one year. It also issued a rule asking them why their failure to stop the use of single-use plastic products should not be declared illegal.

Polythene products are still in regular use in our country despite the ban on their manufacture and sale as per section 6A of the Bangladesh Environment Conservation Act (BECA), 1995. As such, the effectiveness of this order remains to be seen. But this order may prove to be successful as it calls for a ban on the use of one-time plastic products gradually from each area/sector of Bangladesh instead of an outright ban.

Directing to appoint psychologists in all educational institutions

In November 2019 Supreme Court Advocate Farhad Uddin Ahmed Bhuiyan filed a writ petition asking why the state’s failure to appoint psychologists or counselors in all educational institutions would not be a violation of articles 17 (a) and (b), 18 (1) and (2), and 32 of our Constitution. He claimed that drug addiction, sexual harassment, suicide attempts, identity crisis, erosion of social values, inattentiveness towards studies, indiscipline, and chaos etc were increasing among the students. Our educational institutions usually do not have psychologists to attend to the students’ problems. Afterwards, the HCD issued this rule asking the government to respond within four weeks why it should not be directed to appoint counselors and clinical psychologists in every educational institution throughout Bangladesh to address this issue.

If implemented properly, this order will lead to a remarkable change in our school system since for the very first time mental health of the students, which is intricately connected to their fundamental right to life, will be prioritised.  

Striking down the practice of keeping civil servants as Officers on Special Duty (OSD) for more than 150 days

In 2012  M Asafuddowlah, a retired civil servant, filed a PIL on the grounds that keeping civil servants as OSD for more than 150 days was violative of Article 20 (2) of our Constitution. His lawyer, Barrister Aneek R Haque stated that the government circular dated 3 October 1991 stipulates that officers cannot be made OSD for less than 45 days or more than 150 days. He argued that despite keeping 3605 civil servants OSD for more than 150 days, taxpayers’ money worth BDT 150,91,58007 had already been spent on their salaries. The HCD then declared the practice unconstitutional and ordered the government to reinstate all such officers who have been made OSD for more than 150 days in their original posts. It also ordered the Secretary, Ministry of Public Administration to form a committee to assess and give due promotions to the eligible officers. However, the chamber judge of the AD, Justice Hasan Foez Siddique stayed the verdict and referred it to the full bench for hearing.

The HCD’s order is direct enforcement of a fundamental principle of state policy (Article 20) which  Article 8 (2) of our Constitution directly prohibits. Thus, the AD’s decision will be an interesting development in the field of constitutional law. 

Directing to form anti-ragging squads in educational institutions

After the brutal murder of Abrar, a sophomore at Bangladesh University of Engineering and Technology (BUET), Advocate Ishrat Hasan served a legal notice to the Chairman, University Grants Commission (UGC) and the Secretaries, Home and Education Affairs Ministries to take active steps to prevent ragging in educational institutions. Since they failed to respond to the notice, she filed a writ petition. The court after hearing the petitioner ordered to form anti-ragging squads in all educational institutions across Bangladesh, especially in the public and private universities and affiliated colleges. It also ordered the concerned authorities to constitute a committee to monitor these squads. The court further issued a rule asking why their inaction to prevent ragging in educational institutions should not be declared illegal. It finally asked the respondents to reply to the rule within four weeks.

The university authorities have done virtually nothing to stop ragging in the university campuses and dormitories. This order, hence, is a much-needed step to protect the fundamental rights of the students as citizens of the country.

Directing to form a committee for importing anti-rape devices

Children’s Charity Bangladesh (CCB) Foundation and Bangladesh Legal Aid and Services Trust (BLAST) together filed a PIL following the rape of a Dhaka University student. They asked for introducing devices in Bangladesh that can identify rapists, locate crime scenes and preserve evidence via photos, audios, videos etc of the crime. Affirming that Malaysia, China, Philippines etc have already introduced such devices, they argued that this could lead to locating and apprehending perpetrators of rape quickly. After hearing the petitioners, the HCD asked the government to form an expert committee to determine the ways and means to import such devices from abroad. It also asked the government to explain within four weeks why it should not take adequate security measures to prevent rape, stalking and sexual assault of women in public places. Lastly, the court also sought the opinion of the expert committee on the procedure to connect the anti-rape device to the national emergency hotline, 999. The committee was asked to file a report of their progress within 60 days.

While the idea of deploying functional anti-rape devices seems novel, its effectiveness is questionable. The petitioners should justify their position by providing sufficient data on how anti-rape devices have been successful in China, Malaysia and Thailand. 

Ordering to stop production and display of laminated election posters

After Barrister Manoj Kumar Bhowmick submitted the Daily Star report: ‘Laminated Posters In City Polls: A big threat to environment’ to the HCD, it issued a suo motu order to immediately stop the production and display of laminated posters to save Dhaka from pollution. The court also asked the authorities why they should not be directed to do so. Lastly, it directed them to properly dispose of these laminated posters. The authorities, however, remained inactive and the posters were on display till the election.

This is another glaring example of how the executive disregards the court’s orders, leading to contempt of court. Unfortunately, their inactions bear little to no consequences giving rise to a culture of impunity. Nevertheless, Bidyanondo Foundation, a voluntary organization, undertook a commendable initiative by recycling these laminated posters to make notebooks and copies for underprivileged children, thereby ensuring their proper disposal.

Ordering the immediate appointment of 117 doctors in prison hospitals

Following the hearing on a PIL in November 2019 to ensure the rights and medical facilities for the prisoners, two reports were presented to the court. They stated that 117 posts for doctors remained vacant in 68 prisons across Bangladesh. The HCD then ordered the Director-General, Directorate of Health Services (DGHS) to immediately appoint doctors in these 117 vacant posts. It also asked the authorities to file a progress report within one month for updating the court on the number of doctors appointed. The reports presented to the court show that currently against 141 total posts for prison doctors, there are only 15 doctors in service in the prisons across Bangladesh. This is a significantly low figure given that there were 86,998 prisoners in Bangladesh in August 2019, as per the report filed by the Inspector General (IG), Prisons.

Even if these 117 posts are filled up, the doctor to prisoner ratio will still remain quite low. Despite being imprisoned, the prisoners have constitutional rights which the government has a duty to uphold and protect. The Health Ministry and the prison authorities, therefore, need to take active steps to ensure that the adequate number of doctors are appointed.

Fining four factories for polluting Buriganga

Four factories (Mita Textiles, M/S Ovijat Dyeing, Chandpur Textiles and Dyeing, and Sharmin Textile and Dyeing) were earlier found running their operations without Effluent Treatment Plants (ETP) and suppressing this information from the court, thus violating section 12 of the BECA, 1995.  The factories failed to fulfil their promise of installing ETP within the ultimatum of three months given by the authorities. Consequently, the authorities cut their power supplies. This led to the factories filing four separate writ petitions to the HCD. The HCD bench after rejecting all the writ petitions fined them BDT 5 lac each for polluting the Buriganga river. The Department of Environment (DoE) was asked to recover the amount of fine and use that to prevent the pollution of Buriganga.

Ever since the HCD declared rivers as legal persons, it has been trying to stop their pollution and illegal encroachment. This verdict is another indication of the court’s eagerness to uphold the legal rights of rivers and direct the government to positively enforce Article 18A of our Constitution.