From the Court Corridor: November Edition

This edition of ‘From the Court Corridor’ curates the notable pronouncements of the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh in November.

Ordering for probation of one Moti Matbor

In 2017 the Additional Metropolitan Sessions Judge Court – 7, Dhaka, dismissed the appeal and upheld the conviction of one Moti Matbor under table 9(Kha) of section 19(1) read with section 19(4) of the Narcotics Control Act, 1990 (the 1990 Act). Moti was sentenced to five years’ rigorous imprisonment and a fine worth BDT 20,000/-. He would be sentenced to a further three months’ rigorous imprisonment for defaulting the payment of the fine. Interestingly, in the criminal revision petition to the HCD, his lawyer, Md Shishir Manir, filed an application under section 5 of the Probation of Offenders Ordinance, 1960 (the Ordinance). He asked the court to release Moti on probation for one year. He argued that Moti categorically admitted to committing the offence and has no previous criminal record. He further stated that Moti had already served 20 months out of the 5 years’ rigorous imprisonment and that ever since being released on bail, Moti did not violate its conditions. Upon the HCD’s order, the probation officer reported that Moti was the sole breadwinner of his family. Thus, his imprisonment would negatively impact his family and risk the education of his children. The probation officer, taking into account Moti’s previous criminal record (null) and financial, social and familial context, provided some recommendations to grant him (Moti) bail.

The HCD considered the petitioner’s application, the probation officer’s report and the relevant legislation, international law instruments and case laws while adjudging the case. It then granted probation to Moti for one year and six months. In its 21-pages verdict, the court imposed six conditions upon Moti which would continue during his probation period. It also stayed the rest of his imprisonment of 3 years and 4 months and the fine of BDT 20,000/- till the completion of the probation. 

The verdict is a welcoming sign since the HCD, for the first time, addressed the issue of facilitating social reintegration and fostering rehabilitation of convicts. With the HCD issuing this verdict, it will set a precedent for the subordinate judiciary. Our courts should resort to this Ordinance in appropriate cases in the coming days. 

Ruling on marital rape

In October news outlets reported the death of a 14 years old bride in Tangail. She had reportedly succumbed to injuries from being forced to have intercourse with her husband for over a month. The gruesome details of the incident shocked the nation. Four prominent human rights organisations under the ‘Rape Law Reform Coalition’ then filed a writ petition to the HCD challenging the exception clause under section 375 of the Penal Code (PC), 1860 and other related provisions enabling this exception clause: section 376 of PC and the explanation to section 9(1) of the Women and Children Repression (Prevention) Act, 2000. The petitioners argued that the exception clause violated articles 27, 28, 31 and 32 of the constitution. They asked the HCD to issue a rule asking the government to explain as to why this provision is not violative of the fundamental right to equality and non-discrimination for brides above 13 years of age.

Upon hearing, the HCD issued a rule nisi asking the government to explain within four weeks as to why the court should not declare the provisions favouring marital rape for brides above 13 years unconstitutional. The HCD also asked the government to respond to why it (court) should not direct them (government) to take necessary measures to repeal these provisions. 

The writ petition involves a crucial issue of our criminal justice system. As such, the court should not blindly follow the jurisprudence of any particular legal system while adjudging this matter. It should keep in mind our legal system and socio-cultural context. If the provisions are declared unconstitutional, the legislature should provide an inclusive definition of marital rape and an adequate punishment for the crime. The court and the legislature can explore the possibility of amending/expanding the definition of sexual abuse under section 3 of the Domestic Violence (Prevention and Protection) Act, 2010 to make it consistent with the other laws.

Ordering technology companies to pay due taxes to the government

In 2018 six SC lawyers filed a writ petition asking the HCD to give directions to the government to collect unpaid revenue and other taxes from global technology companies. After preliminary hearing the court ordered to collect source tax, customs and other tax revenues from the advertisement, selling of domain, licensing and every other transaction of search engines: Google and Yahoo, e-commerce platform: Amazon, social media platform: Facebook and video-sharing platform: YouTube as well as all internet-based platforms for an interim period. The HCD also issued a rule asking the respondents to explain as to why this period should not be made permanent. 

Upon hearing the respondents, the HCD issued five directives on 8 November. Firstly, the HCD asked the government to immediately collect source tax, customs and other tax revenues as per the existing laws from all transactions of Google, Yahoo, Facebook, YouTube, Amazon and other internet-based platforms or media. Secondly, it also ordered the government to collect the due revenues of the past from these platforms. Thirdly, the HCD ordered the National Board of Revenue (NBR) to submit a report by affidavit every six months on the progress of the collection of these taxes. Fourthly, the HCD declared to treat the order as a continuous mandamus. Lastly, it stated that if there are anomalies regarding the implementation of the orders, any citizen can approach the court to seek remedies. 

This verdict paves the way for NBR to collect revenues from global technology companies that have earned millions from their businesses in Bangladesh but are yet to pay their due taxes. The government should ensure that the companies pay both the due and the regular taxes and the companies should cooperate with the government in this regard.

Issuing injunction on selling firearms used during the liberation war

On 5 October the renowned daily, Prothom Alo, reported that the government was intending to sell firearms and weapons used during the 1971 Liberation War. Thereafter, SC lawyer Z I Khan Panna and human rights organization Ain o Salish Kendra jointly filed a writ petition to the HCD seeking a ban on the sale of the firearms used during the liberation war. The petitioners further asked the court to seek an explanation on why it should not declare the selling of such firearms illegal. Lastly, they asked the court to give necessary orders to preserve the firearms for the future generations. 

After hearing the HCD issued an injunction ordering the concerned authorities not to sell the firearms. It also issued a rule asking the respondents to explain within four weeks as to why it would not declare illegal their intention to sell these firearms, as reported in the news. Lastly, the HCD asked the respondents to submit a report within six months on the status quo of the firearms and what steps they had taken to preserve and protect the firearms for the future generations. 

The firearms used during our liberation war are our national heritage. Moreover, our Export Policy 2018-2021 follows the ‘Everything but Arms’ (EBA) scheme. If our government materialises this intention, it will violate the policy too. Hence, it should refrain from selling these firearms to foreign importers. The government should rather take adequate measures to preserve them for both the current and future generations.    

Rejecting the writ petition challenging the legality of the Use of Information Technology by Court Act, 2020

SC lawyer, AKM Asiful Haque, had earlier filed a writ petition challenging the legality of the Use of Information Technology by Court Act, 2020 (the 2020 Act). The petitioner submitted that the definition of ‘adalot’ (court) under section 2 was inconsistent with articles 94 and 152 of the constitution and degraded the SC’s status. He questioned the application of the 2020 Act to the SC since the Appellate Division (AD) and the HCD do not function like trial courts of the subordinate judiciary. The petitioner contended that the practice directions issued under the Act violated chapter XVIA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973 (the 1973 Rules). He further submitted that the Act and the practice directions issued under it violated article 35(3) of the constitution. Lastly, he argued that the Act being raised as a money bill in the parliament violated articles 81(1)(c), 81(1)(e), 81(3) and 82 of the constitution.     

After hearing both the parties the HCD summarily rejected the petition. In its 27-pages verdict, the HCD firstly held that the definition of ‘adalot’ (court) in the 2020 Act was consistent with articles 94 and 152 since ‘court’ in article 152 includes the SC too. It further noted that this definition was an inclusive one as it also mentioned ‘tribunals.’ Secondly, it dismissed the submission that this law was inapplicable to the SC since being a court itself, the SC is legally empowered to carry out any function that the subordinate judiciary carries out, besides its original functions. Thirdly, the court held that the 2020 Act does not contravene the provisions of articles 81 and 82. It reasoned that although the 2020 Act was raised as a money bill, the law does not contain provisions relating to expenditure of money from the public exchequer. Fourthly, the court discounted the submission that the 2020 Act or its practice directions degraded the value of the Chief Justice (CJ) and violated the 1973 Rules. It stated that section 5 of the 2020 Act neither curtailed nor enhanced the CJ’s powers. The provision merely empowered both divisions of the SC to issue practice directions from time to time to fulfill the objectives of sections 3 and 4. It did not even degrade the value of the SC. The court emphasised that the very objective of the 2020 Act would be frustrated if it did not allow the usage of electronic devices during court procedures. Lastly, the HCD held that the internet could also be construed as a public place for trial, as envisaged by article 35(3) of the constitution. The court stated that once virtual court proceedings via video conferencing are made accessible to all, it would meet the requirement of article 35(3).

The HCD correctly observed that it did not find any merit in the writ. However, it elaborated on each contention of the petitioner and underscored the necessity of virtual hearings during the COVID-19 pandemic that has created enormous hurdles in the justice delivery system. It also addressed some crucial issues that act as barriers to access to justice in the virtual medium and opined that addressing them is the proper way to enhance access to justice for our citizens.