This edition of ‘From the Court Corridor’ curates notable pronouncements of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh during August. In August the HCD partially resumed physical hearing for the first time since March 2020. The chief justice constituted 18 regular benches for the physical hearing of cases and 35 virtual benches for the online hearing. Moreover, the AD resumed hearing of all appeals virtually by constituting one regular bench.

Extending the time limit to file cases after lifting the nationwide lockdown

During the hearing of an appeal concerning the leading telecommunication company – Grameenphone – the attorney general (AG) raised the issue of the sufferings faced by litigants during the COVID-19 pandemic since they were unable to come to courts to file their cases. As such, he submitted that the statutory limitation period for filing these cases had expired in the meantime leaving these litigants without any remedy. Thus, the AG asked the court to adopt a safeguard measure like the one adopted by the Indian supreme court in Suo Moto Writ (Civil) No. 3 of 2020. The Indian supreme court, in this case, lifted the limitation periods for all kinds of proceedings including those specifically stipulated in the special laws until further notice. The other counsels in the hearing concurred with the AG’s submission. Additional AG Murad Reza further submitted how the courts in other (European and South Asian) jurisdictions have tackled the issue.

After hearing the AD extended the limitation period ‘for filing petitions/applications/suits/appeals/revisions/all other proceedings in civil, criminal or administrative matters under the general or special laws which expired on or after 26.03.2020 until 31.08.2020’. The order explicitly mentioned that this was an exercise of the power to do complete justice under article 104 of the constitution by the AD.  

Earlier the SC issued two circulars on 4.4.2020 and 7.6.2020 on this matter. The former circular extended the operation of all orders passed by both our subordinate and apex courts in civil and criminal matters up to two weeks following the reopening of the courts. Conversely, the latter circular mentioned that litigants could virtually file three types of petitions and/or appeals under certain laws to the civil and/or criminal courts. The circulars created confusion as different courts interpreted them differently and opted for different procedures. The litigants were unsure whether ‘reopening of the courts’ in the earlier circular meant physical reopening or virtual reopening of the court proceedings. Additionally, virtual courts only heard urgent matters which further complicated the situation. Hence, the AD’s decision, which is binding on all courts or tribunals of Bangladesh under article 111 of the constitution, will ensure uniformity in court procedures and uphold the rights of the litigants. 

Questioning the legality of provisions relating to abortion in the Penal Code, 1860

Earlier on 31 May 2020 SC lawyer Dr Syeda Nasrin sent a legal notice to the government challenging the legality of the provisions relating to abortion in sections 312, 313, 314, 315 and 316 of the Penal Code, 1860 since they violate articles 27, 29, 31, 32, 38 and 42 of the constitution. As the government did not respond to the notice, she filed a writ petition on this matter on 17 August. Dr Nasrin submitted that the provisions criminalising abortion violate the fundamental rights of the citizens. She remarked that many doctors or nurses refrain from conducting abortion procedures in hospitals for fear of violating the law. She expressed her concern that this situation had forced many women to opt for illegal means of abortion which posed a risk to their health and lives. She further submitted that the law does not even help survivors of rape to carry out abortions. Hence, these women have no choice but to give birth to the child. She said that this had led to a rise in the number of homeless children on the streets or in the orphanages. Lastly, Dr Nasrin remarked that although the British rulers inserted these provisions in our laws, they amended the British laws relating to abortion in 1967.

After hearing the HCD issued a rule asking the government to respond to why the court should not declare the abovementioned provisions in the Penal Code, 1860 discriminatory and violative of the fundamental rights in our constitution. This ruling is a sign of positive change since the abortion laws in Bangladesh are archaic. The government needs to amend them to make them compatible with the fundamental rights in our constitution. It will particularly help ease the suffering of the survivors of sexual violence, including rape, since they did not consent to the acts that led to them being pregnant.

Ruling on the legality of charging fees similar to physical classes for online classes during the COVID-19 pandemic   

Private schools – Chittagong Grammar School, Dhaka and Scholastica – had been charging tuition fees for online classes similar to the rates of regular physical classes during the COVID-19 pandemic. Hence, three SC lawyers filed a writ petition challenging the legality of their actions. Upon hearing the HCD issued a rule asking the concerned authorities why it should not declare illegal the charging of such fees for online classes that are similar to those for physical classes. The court further asked why it should not direct the authorities to prepare a work plan on the quantum and method of collection of tuition fees during the COVID-19 pandemic based on the Registration of Private Schools Ordinance, 1962, the Registration of Private Schools Rules, 2017 and the United Nations Convention on the Rights of the Child, 1989. Lastly, the HCD asked the authorities to submit this work plan to the government within three months from 24 August. 

This ruling will help end an illegal practice as these schools are overcharging their students for the limited services they are providing during the pandemic. Hence, after the HCD’s intervention the schools will be wary of this practice and implement the fees based on the prepared work plan submitted to the government.

Issuing a contempt of court rule against the health secretary and the director-general of the Directorate General of Health Services

Road accidents are a common occurrence in Bangladesh. But Bangladeshi hospitals commonly refuse to provide emergency treatment to road accident victims. They rather ask the people who brought the victims to the hospital to lodge a case in the concerned police stations first. It leads to loss of time and quite often, the victims die owing to such delay. Moreover, the ones who bring such victims to the hospitals often face harassment from the police since the police suspect them for the ones who caused the accident. Thus, in February 2016 Bangladesh Legal Aid and Services Trust (BLAST) filed a writ petition challenging this practice. The HCD then issued a rule asking the hospital authorities to respond to why it should not direct them to provide emergency treatment to accident victims. Thereafter in August 2018 the HCD asked the health secretary to circulate a gazette notification containing guidelines for hospitals to provide emergency medical services to road accident victims and to protect the ones who helped bring such victims to the hospitals.

However, the respondent failed to comply with this rule over the past two years. Consequently, BLAST filed a contempt of court petition to the HCD. The court, therefore, issued a contempt of court rule against the health secretary and the director-general (DG) of the Directorate General of Health Services (DGHS) asking why the court should not take action against them for this failure. It asked them to respond within two weeks from 18 August 2020.

The proposed guidelines will help ease the sufferings of both the accident victims and their aides. As such, the Ministry of Health and Family Welfare and DGHS should immediately circulate the gazette notification without further delay to comply with the HCD’s order.

Declaring Pubali Bank Limited’s election of the board of directors in their 37th annual general meeting illegal

During the COVID-19 pandemic the Bangladesh Securities and Exchange Commission (BSEC) issued two circulars (on 24.03.2020 and 08.07.2020) outlining the process to hold annual general meetings (AGM), extraordinary general meetings (EGM), the board of directors’ (BOD) meetings etc for listed companies. The circular of 08.07.2020, which repealed that of 24.03.2020, stated that AGM/EGM of listed companies might take place online to avoid social gatherings taking into account the geographical dispersal of the members or shareholders. It also stipulated to ensure safety measures and proper voting rights of the shareholders. The circular did not mention anything about holding a fully virtual AGM/EGM. Pubali Bank Limited, however, held its 37th AGM fully online on 30 July and elected a new BOD. The petitioners challenged it for disregarding the BSEC notification. They submitted that since the election took place online, some of the shareholders could not vote owing to technological errors. The HCD upon hearing on 27 August declared the BOD election illegal. It asked the bank to hold fresh elections within six weeks of receiving the verdict. The court further directed the previous BOD to continue performing their responsibilities until the new election took place.

Since the respondents did not challenge the circular of 08.07.2020, the HCD found the BOD election violative of the BSEC guidelines and thus declared it illegal. In doing so, the court exercised self-restraint. Nevertheless, given the overall scenario of the COVID-19 pandemic, BSEC may consider amending the guidelines to leverage technology fully to avoid physical gatherings for such meetings in the future.

Ordering for the case records and appearance of the investigation officers in the murder case of a girl found alive later

When a girl in Narayanganj went missing on 4 July 2020 her father filed an abduction case in the Narayanganj Sadar Model Police Station. Afterward the police arrested three individuals who confessed to abducting, raping and killing the girl to the concerned magistrate on 9 August. However, the police rescued the girl on 23 August, 51 days after her alleged abduction. As such, on 25 August five SC lawyers filed a revision petition to the HCD challenging the legality of the proceedings in this case. Upon hearing the HCD summoned the two investigation officers to appear before the court on 17 September with the case diary and the confessional statements to verify how the police had obtained the confessions when they found the girl alive subsequently.

It is yet another example of flagrant violation of the Code of Criminal Procedure, 1898 as well as article 35(4) and 35(5) of the constitution by the police. The arrestees despite not committing any of the abovementioned offences confessed to them. One does not even need to think about how the police obtained the confessions. Moreover, the policemen had allegedly taken bribes from the relatives of the arrestees and returned a part of that later when they found the girl alive. The HCD should take strong actions against the concerned policemen, who extracted the false confessions from the accused, to ensure that it never occurs in the future. The court can also order to file cases against the delinquent policemen under the Torture and Custodial Death (Prevention) Act, 2013 if it finds that they tortured the arrestees to extract the false confessions.

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