This edition of ‘From the Court Corridor’ highlights notable pronouncements of the virtual benches of the High Court Division (HCD) and the chamber judge of the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh during June.

Ordering for compensation in the United Hospital Limited’s fire incident

On 27 May a fire broke out in the COVID-19 isolation unit of United Hospital Limited killing five people. Following the tragic incident petitioners filed multiple writ petitions to the HCD seeking compensation from the hospital authorities on behalf of the families of the victims. SC lawyer Mohammad Mahbub filed a public interest litigation (PIL) seeking the HCD’s order to the concerned authorities to pay BDT 5 crores to each family of the victims. He also asked for necessary actions against the liable persons for their negligence.

During the first hearing the HCD sought four separate probe reports from the United Hospital Limited, Rajdhani Unnayan Kartripakkha (RAJUK), Inspector General of Police and Bangladesh Fire Service & Civil Defence on the negligence of the hospital authority, origin and cause of the fire and if the hospital authority acquired RAJUK’s permission before constructing the isolation unit. Consequently, the HCD directed the hospital authorities to compensate the victims’ families through an amicable settlement between them. The court further stated that if they failed to reach an amicable settlement, it would pass an order on 13 July.

Most deaths due to accidents occur because of the sheer negligence of the concerned authorities. The families of the victims seldom receive compensation. Even when the court orders to compensate the victims, the perpetrators keep delaying the payment and in many cases never compensate the victims. Hence, if the HCD orders United Hospital Limited to compensate the victims’ families and if the families ultimately receive compensation, this will be a significant development in the field of tortious liability for death caused due to negligence.

Issuing directives on monitoring private hospitals’ activities and their treatment of patients during the COVID-19 pandemic

Five separate writ petitions were filed to the HCD owing to the rampant mismanagement of patients by private hospitals and the rapid spread of COVID-19 throughout Bangladesh after the government eased lockdown measures. The petitioners accused the hospitals of denying treatment, overcharging for services and for being unable to provide separate wards for COVID-19 and non-COVID patients. They submitted that the actions of the private hospitals violated the 3 directives issued by the Ministry of Health and Family Welfare (MOHFW) on 11 and 24 May respectively.  The HCD issued 11 directives and observations upon hearing these writ petitions together.  

The HCD observed that hospitals cannot deny treatment to any severely ill patient and if anyone dies because of such denial, it will amount to death due to negligence, ie a criminal offence. It asked MOHFW and the Directorate General of Health Services (DGHS) to prepare a monitoring cell to ensure that private hospitals were duly providing treatment to all COVID and non-COVID patients. The court further directed the government to monitor the compliance of all hospitals with MOHFW’s directives and ordered MOHFW and DGHS to file a report by 30 June. The HCD directed the government to monitor that the private hospitals charge reasonable and not excessive fees from the COVID-19 patients admitted in the intensive care units (ICU). It observed that the government may consider activating the ‘National Disaster Response Coordination Group’ under section 14 of the Disaster Management Act, 2012 and take requisition of private hospitals/clinics following their recommendation under section 26. Lastly, it asked the concerned authorities to set the price for oxygen cylinders and their refilling. The court observed that to stop businessmen from creating artificial shortage of cylinders in the market, the authorities can consider selling them to only those with a prescription from the registered doctors and the national ID of the patients. 

However, the AD’s chamber judge stayed 8 out of these 11 directives after the government appealed against the HCD’s decision the following day. It only upheld the directives on regulating the price of oxygen cylinders, charging reasonable fees by private medical facilities from ICU patients and submitting the compliance report of private medical facilities by MOHFW and DGHS by 30 June. While the AD staying 8 of these directives seems to be a step backward from the HCD’s progressive and timely decision, we can perceive the upholding of 3 essential orders as a positive sign. Nevertheless, it is crucial to regulate the activities of private medical facilities since there have been numerous complaints about the affordability and quality of their service even before the pandemic. MOHFW and DGHS need to implement the HCD’s directives in their bid to tackle the widespread mismanagement, corruption and negligence in the healthcare sector of Bangladesh.

Imposing injunction on 25% price hike of water

After increasing water tariff by 5% in September 2019 Dhaka Water Supply and Sewerage Authority (WASA) decided to hike water price again by 25% from 1 April 2020. When multiple newspapers reported this incident Advocate Tanvir Ahmed submitted a PIL asking the HCD to declare the subsequent price hike illegal. He argued that under section 22 of the Water Supply and Sewerage Authority Act, 1996 (the 1996 Act), WASA can only increase the price of water by 5% once every year. Additionally, he submitted that this illegal price hike during the pandemic, when economic activities largely remain suspended, will be detrimental to the citizens. The HCD after the hearing on 22 June passed an injunction order against the price hike till 10 August. However, on an appeal from the government, the AD’s chamber judge stayed the HCD’s injunction order on 30 June for 16 weeks. Thus, WASA can continue imposing the 25% price hike of water.

Section 22(3) of the 1996 Act states that the government may (emphasis added) authorize a price hike of water to meet WASA’s operating costs if the operating costs increase by more than 5% owing to inflation or for any other reasonable cause. But if we read this provision with section 22(2), it becomes clear that this price hike cannot be more than 5%, let alone 25%, to meet WASA’s increased operating costs. Thus, once the AD’s full bench concludes the hearing on this appeal, it should uphold the HCD’s injunction order.

Inquiring about the medical and police investigation reports on Jashore’s police brutality incident  

A college student of Jashore, Imran Hossain alleged that he was brutally tortured by policemen on 3 June while returning home with a friend. His family alleged that later when he was taken to the hospital, doctors on duty declared that both his kidneys were damaged. The police allegedly inserted yaba pills in his pockets and only released him after taking bribe worth BDT 6,000 from his father. They threatened to torture him again if he revealed the incident to anyone. As the news spread Jashore police decided to conduct an internal inquiry, where they found no authenticity of Imran’s allegations.

SC lawyers Humayun Kabir Pallab and Mohammad Kawsar then filed this writ petition seeking HCD’s orders for a judicial inquiry, payment of medical expenses by the defendants and directives for compensating Imran. After the hearing the HCD asked Jashore’s civil surgeon to submit a medical report informing the court of Imran’s latest physical condition. It also asked him to submit Imran’s dope test report since the police had alleged that they found yaba pills in Imran’s possession. Lastly, it asked Jashore’s police super to submit the report of the internal inquiry which they had conducted earlier.

This is yet another example of blatant abuse of police power. If the court finds Imran’s allegations to be true, it should order for filing criminal cases against the accused officers under the Torture and Custodial Death (Prevention) Act, 2013 (the 2013 Act). Moreover, they should compensate Imran under section 15(1) of the 2013 Act if they are pronounced guilty in the criminal trial. The HCD, under its writ jurisdiction, can also issue a separate compensation order against the accused officers to compensate Imran for his physical and mental sufferings as a result of the torture (see Bangladesh v BLAST, (2016) 8 SCOB (AD) 1 and BLAST v Bangladesh, (2003) 55 DLR 363 for details). In calculating this compensation, the HCD can take into account the civil surgeon’s report detailing the extent of Imran’s injuries. This will ultimately set a strong precedent for providing adequate relief to the victims of police brutality in Bangladesh.

Staying the gazette notification which cancelled the freedom fighter status of Md Abu Taher

On 7 June the Ministry of Liberation War Affairs (MOLWA) issued a gazette notification cancelling the freedom fighter status of 1,134 members of the Border Guard of Bangladesh (BGB). The list contained the name of Md Abu Taher. Afterward Barrister M Abdul Qaium filed a writ petition seeking a stay order of the gazette’s operation for Abu Taher since it was unlawful. He argued that Abu Taher received a temporary freedom fighter certificate on 6 November 2003 and the BGB’s gazette issued on 31 March 2010 also included his name. The petitioner also submitted that he was receiving the facilities of a freedom fighter till 13 May 2020. After the hearing the HCD stayed the operation of the gazette notification for Abu Taher.

This is a significant decision since the list erroneously contained Abu Taher’s name and it sought to cancel his freedom fighter status. MOLWA should review the gazette notification to ensure that no freedom fighter’s name mistakenly remains on this list. Our freedom fighters deserve the highest level of honor from the state for their unparalleled sacrifices during the 1971 Liberation War.     

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