From the (Virtual) Court Corridor: July Edition

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

Staying HCD’s compensation order in the United Hospital Limited’s fire incident

Earlier in June the HCD had asked the United Hospital Limited to compensate the families of the victims who died in the fire accident through an amicable settlement. However, the parties failed to reach an amicable settlement. Thereafter the HCD heard both the parties. United Hospital Limited argued that the writ petitions filed for seeking compensation were barred under article 102(2) of the constitution because the Fatal Accidents Act, 1855 already provides an equally efficacious remedy. They further proposed to pay BDT 25 lakh to each victim’s family. Conversely, the petitioners submitted that the writ petitions are maintainable under article 102 of the constitution. Presumably, they referred to article 102(1) since it does not contain the provision for exhausting any other equally efficacious remedy to file a writ petition for violation of fundamental rights of the citizens. They cited numerous precedents of the HCD granting compensation to accident victims or their families in writ petitions and the AD upholding them.

The court then passed an ad-interim order directing the hospital to pay BDT 30 lakh to each victim’s family within 15 days from 15 July. However, on 21 July the AD’s chamber judge stayed the HCD’s directive till 16 August after the hospital sought a stay order. The AD stated that the HCD did not issue any rule and did not give the hospital authorities any opportunity to explain themselves while directing them to pay the compensation.

All the virtual HCD benches are single benches. These are not divisional benches (consisting of two judges) and hence lack the power to issue any rule nisi. When a rule is issued the respondents are given an opportunity to submit their explanation(s) to the rule. Without issuing any rule and hearing the respondents on the rule, the court cannot issue such compensation order. Hence, the AD’s chamber judge rightfully stayed the compensation order. This is regretfully a procedural loophole for the HCD in dispensing justice virtually through its writ jurisdiction.

Denying bail to Ron Haque Sikder and Dipu Haque Sikder

On 7 May Sikder Group’s managing director (MD), Ron Haque Sikder and his brother, Dipu Haque Sikder allegedly tortured and attempted to kill Exim Bank’s MD, Md Haider Ali Mia and additional MD, Md Firoz Hossain. Consequently, a case was filed against them at the Gulshan police station. The brothers fled the country for Thailand on 25 May. Thereafter they filed an anticipatory bail application to the HCD virtually. During the bail hearing their lawyer Ajmalul Hossain QC submitted that since they were abroad for the time being, they decided to apply for bail from there following the provision of section 4 of the ‘Usage of Information and Communication Technology by Court Act, 2020‘. The court can direct and set conditions for his clients to surrender, he said. The attorney general opposed the bail petition. He submitted that earlier during the pandemic there was no provision to surrender to magistrate courts. However, the SC directives of 4.07.2020 and 11.07.2020 clearly outline the procedure for the accused in criminal cases to surrender to the chief judicial magistrate or the chief metropolitan magistrate courts and the subordinate courts now, he stated.

In its 122 pages long decision, the HCD came down heavily upon the Sikder brothers and their legal counsels for filing this anticipatory bail application from abroad virtually. It observed that the petition was filed illegally and beyond the scope of the constitution, the existing laws of Bangladesh and the practice directions for virtual courts of the HCD issued on 10 May. Thus, the HCD rightfully rejected the bail petition. It further directed the accused to submit 10,000 personal protective equipment (PPE) to the Prime Minister’s Relief and Welfare Fund within two weeks from 20 July as fine for wasting its valuable time by filing this frivolous petition.

However, the brothers decided to appeal to the AD against this rejection order. The AD decided to hear the appeal on 9 August. As such, the AD’s verdict in the appeal remains to be seen.

Issuing injunction against private rights bodies from using ‘Commission’ in their names

The National Human Rights Commission (NHRC) was established under the National Human Rights Commission Act, 2009 (the 2009 Act). Section 2(a) of the 2009 Act defined ‘commission’ as the National Human Rights Commission. However, an NGO named Bangladesh Human Rights Commission (BHRC) was using the word ‘Commission’ after its name – violating section 2(a) of the 2009 Act. Hence, SC lawyer Abu Hanif filed a writ petition seeking an injunction against private rights bodies from using the word ‘Commission’ in their names.

The HCD issued an injunction order against BHRC in June following a hearing. The court prohibited BHRC from using the word ‘Commission’ at the end of its name or from using the abbreviation ‘BHRC’ on its website, social media platforms and press releases. BHRC appealed to the AD but the AD’s chamber judge upheld the HCD’s decision on 15 July.

The SC’s decision upheld section 2(a) of the 2009 Act and sought to remove the confusion between NHRC and BHRC among the citizens. Private rights bodies in the future should also ensure that their names do not contain the word ‘Commission.’

Ordering to remove objectionable content from web series on the internet

On 14 June SC lawyer Tanvir Ahmed sent a legal notice to the government and the concerned authorities to remove objectionable content from web series that were streamed on the internet via over-the-top (OTT) media service and YouTube within 24 hours. He stated that these content were clearly violating the provisions of the Pornography Control Act, 2012 and the Digital Security Act, 2018. He also asked the authorities to respond within seven days on whether the authorities would create separate guidelines for regulating the content that are streamed on the web. As the government and the concerned authorities failed to respond to the notice, he filed a public interest litigation (PIL) to the HCD.

The HCD upon hearing the petitioner on 15 July asked the government to remove all objectionable and reprehensible content available on the web within seven days. It also asked the Bangladesh Telecommunication Regulatory Commission (BTRC) to submit a report within a month on the type of its agreement with Netflix to collect revenue and how it collects revenue from other OTT platforms.

While it is essential to have a guideline for regulating content that are on the internet, the government must ensure a balance between the competing laws in the guideline – the fundamental right to freedom of expression, the Pornography Control Act and the Digital Security Act.

Following up on the directives issued to regulate private hospitals’ activities and their treatment of patients during the COVID-19 pandemic

In June the HCD issued 11 directives to regulate the activities of private hospitals and ensure that they provide proper treatment to patients during this pandemic. The court ordered the Directorate General of Health Services (DGHS) to file a compliance report by 30 June. Based on the report submitted and two separate applications from the petitioners containing media reports of allegations of negligence in providing treatment to patients, the HCD heard the parties again in July. Afterward it issued five directions to the respondents that are outlined below:

1. the DGHS mentioned in its report that it found no written complaint of negligence against private or public hospitals in providing treatment to patients. Thus, the HCD asked the petitioners to submit their complaints in writing to the Director General (DG) of DGHS. It asked them to attach the media reports of allegations of negligence in providing treatment to patients. The court then asked the DGHS to submit a report on the investigation it undertook regarding these complaints by 21.07.2020;

2. the HCD asked the DGHS to create a separate email address so that people can easily file such complaints to the DGHS via emails. The court asked the DGHS to publicize that address among the people;

3. the authorities informed the court that they were yet to set the price for oxygen cylinders and their refilling. Hence, the HCD asked them to do so within the next ten working days and inform the public about it;

4. the HCD observed that the patients who are charged excessive bills for COVID-19 treatment by private hospitals can approach the Anti-Corruption Commission (ACC) with their complaints. It directed the ACC to take legal actions swiftly if anyone files such complaints; and

5. the HCD observed that COVID-19 tests are essential for patients suffering from cancer or requiring kidney dialysis. Hence, it asked the DGHS to take necessary steps to ensure that COVID-19 tests of such patients are prioritized by the hospitals. Furthermore, it asked the DGHS to ensure that these patients receive their test reports within 48 hours. The court observed that if necessary, labs or sample collection facilities can have separate designated booths for collecting samples of these patients only.

From the beginning of the pandemic the media have published numerous reports alleging irregularities and negligence in treating patients by both public and private hospitals. This writ petition, however, shows that the Ministry of Health and Family Welfare (MOHFW) and the DGHS are trying to ensure proper treatment facilities to the citizens and abide by the HCD’s directions. MOHFW, DGHS and ACC should ensure that anyone violating these directives faces legal sanctions as they (MOHFW, DGHS and ACC) aim to stop the widespread mismanagement, corruption and negligence in our healthcare sector.