The March edition of ‘From the Court Corridor’ is divided into two parts. Part I curates notable pronouncements of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh made during March 2020 on matters unrelated to the COVID-19 pandemic while Part II solely focuses on the HCD’s directives relating to the pandemic.

The court remained closed for vacation during the second and third week of March. During this period the AD’s chamber judge and the HCD’s vacation bench heard and disposed of cases. However, the pandemic compelled the authorities to declare general holidays from the last week of March and the court has remained closed ever since. 

Questioning the legality of the transfer of Pirojpur’s district and sessions judge

On March 3 Pirojpur’s District and Sessions Judge Abdul Mannan denied bail to the ruling party lawmaker AKMA Awal and his wife Laila Parvin and sent them to prison in relation to three corruption cases filed by the Anti-Corruption Commission. Hours later the Ministry of Law, Justice and Parliamentary Affairs sent in the judge’s transfer orders. Two SC lawyers thereafter brought this incident to the HCD’s attention by referring to newspaper reports. The HCD then passed a suo motu rule asking the government to explain by 11 March why such transfer would not be declared illegal for violating the disciplinary rules of the subordinate courts. Incidentally, the court sought the opinion of the former Attorney General AF Hassan Ariff. He opined that the HCD is empowered to examine the legality of such a transfer for it being related to the judiciary’s independence.

Earlier the same matter was referred to another HCD bench. But it opined that since the chief justice is the head of the general administration committee for disciplinary matters of the judges of the subordinate courts, only he can decide on it. Accepting the time petition of the deputy attorney general at the hearing on 11 March, the court ordered the government to respond to the rule by the first week of April. 

The judge’s transfer immediately after an unfavorable verdict against the government in Pirojpur is yet another blow to the judiciary’s independence. But due to the transfer order being a disciplinary action, the HCD should first refer it to the chief justice and wait for his decision before moving forward.

Declaring illegal the conviction and imprisonment of children by mobile courts run by executive magistrates

In October 2019 two SC lawyers reported the incident of RAB’s executive magistrate illegally detaining 121 children to the HCD and prayed for necessary orders. Consequently, in a remarkable instance of judicial activism, the court on 11 March declared this conviction of 121 children as illegal and a gross violation of their fundamental rights. It also ordered the concerned authorities to immediately release all 121 children to which the authorities duly complied.

The HCD mentioned that the mobile court had extracted confessions from 23 out of these 121 children merely within 32 minutes violating all legal procedures. This role of the executive magistrates as both the judge and the prosecutor in such mobile courts violates articles 33 and 35 of the constitution, it observed. Hence, the court urged the government to amend provisions of the Mobile Courts Act, 2009. It further referred to the contradictory nature of sections 52 and 57 of the Narcotics Control Act, 2018 (the 2018 Act): while the former specifically stipulated the application of the Children Act, 2013 when the accused is a child, the latter gave overriding effect to the application of the Mobile Courts Act to dispose of cases. Lastly, the court observed that section 57 is also in stark contrast to section 44 of the 2018 Act, which stipulates a tribunal presided over by district or additional district judges to deal with such cases.

Surprisingly, the AD’s chamber judge stayed this verdict following the government’s appeal. Nevertheless, the attorney general noted that the stay order will not affect the children aged between 6 to 12 years since they were released under the Children Act. Given the gross illegality and the contradictory provisions in the abovementioned laws, it is expected that the AD will ultimately uphold the HCD’s verdict. The government should immediately amend these provisions to protect the fundamental rights of the citizens, especially the children. 

Questioning the legality of section 112 of the Evidence Act

On 9 March Advocate Ishrat Hasan filed a writ petition challenging section 112 of the Evidence Act, 1872 for violating articles 27, 28, and 32 of the constitution as well as the Universal Declaration of Human Rights. She submitted that when courts declare a child as illegitimate, it leads to them being ridiculed by the society throughout their lives. She stated that children born as a consequence of rape would also face similar difficulties due to the existing provision and cited the examples of those born during the 1971 liberation war. She enquired as to why innocent children would have to bear the consequences of their parents’ decision. Lastly, she argued that the Evidence Act, 1872 is an outdated law and with DNA testing facilities now available, section 112 needs to be amended. Afterwards, the HCD issued a rule asking the government why section 112 would not be declared unconstitutional and why they would not be directed to amend it.

Section 112 has been extensively debated even in India. However, it has been kept verbatim since its promulgation in 1872. While the Indian Legal System admits DNA test results as conclusive evidence [see Pantangi Balarama Venkata Ganesh v state of Andhra Pradesh, (2003) CrLJ 4508 (AP)], the judicial trend has been to order for DNA tests only after non-access  between the parents is proved under section 112.

Nevertheless, if the court holds the ultimate power to declare whether a child is legitimate or not despite DNA test results, the purpose of this writ petition will be defeated. It remains to be seen how the court addresses the consequences of such declarations: unequal treatment between legitimate and illegitimate children, the hardships illegitimate children may face in the society, etc.

Questioning the legality of the arrest and conviction of journalist Ariful

On March 13 a mobile court team arrested Dhaka Tribune’s Kurigram correspondent named Ariful Islam from his home in the dead of night. They tortured, convicted and imprisoned him for a year for allegedly possessing narcotics. Thereafter, Advocate Ishrat Hasan filed a writ petition challenging the authority’s actions for violating articles 31, 32, 33, 35, and 36 of the constitution. She also prayed for BDT 50 lac compensation to be paid to Ariful for the alleged illegal arrest, torture, detention and conviction.

The HCD came down heavily against the deputy commissioner (DC), senior assistant commissioner and assistant commissioners of Kurigram. Besides staying all proceedings of the mobile court including the conviction and sentence of Ariful for six months, the court pointed out numerous inconsistencies and illegalities in the documents regarding his arrest and conviction. Lastly, it ordered the local police to record cases against the DC and the mobile court team that led the illegal operation on charges of assault and attempted murder of Ariful.

This is a bold step by the HCD and should serve as a warning to everyone wielding executive powers to not act in contravention and in excess of their powers. If the accused are found guilty, the court should ensure that Ariful is also duly compensated for his physical and mental sufferings. 

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