From the Court Corridor: January Edition (2021)

This edition of ‘From the Court Corridor’ curates the notable pronouncements of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh in January 2021.

Designating government officers as OSD without lawful authority

In 2019 a retired government officer filed a writ challenging the process of designating any government officer as an ‘Officer on Special Duty’ (OSD) beyond the stipulated period of one hundred and fifty days as prescribed in the notification issued on 03.10.1991 by the then Ministry of Establishment (presently Ministry of Public Administration) and thereby allowing such officers to receive salary and other benefits without rendering any service. Consequently, a rule was issued calling upon the respondent to show cause as to why the current trend of making the government officials OSD for an unlimited period and paying them monthly salary without receiving any service from them and thereby causing huge wastage of taxpayers’ money should not be declared illegal and ultra vires the Constitution.

Firstly, the court was satisfied with the interest of the petitioner as he was a regular tax-payer of the country. As such, he has a legitimate expectation to be acquainted with how the taxpayers’ money is being spent by the government. Therefore, the writ was maintainable. Secondly, the court was concerned with the decision-making process of designating officers as OSD for an unlimited period and paying salary from the consolidated fund during such period, which is mainly derived from the taxpayer’s money. The court opined that such expenditure of money is in contravention of Article 20(2) and Article 31 of the Constitution. Hence, the court directed the government to form a committee and take necessary steps in accordance with the law and held that the continuation of the process of keeping an Officer as an OSD beyond the stipulated period is ultra vires and, therefore, without lawful authority.

The judgment has added a great value to the constitutional jurisprudence of the state, wherein the court considered legitimate expectation – a yardstick of the sufficient interest – as a ground of possessing the locus standi. Furthermore, a continued violation of the Constitution through the process of designating officers as OSD has been addressed as an arbitrary action of the government. Unfortunately, this landmark verdict has been stayed by the AD on the appeal from the government.

Holding Bangladesh Bank officials and PK Haldar as perpetrator in washing away public money

In 2019 a private company named Tees Mart Inc, a shareholder of Bangladesh Industrial Finance Company Limited (BIFC), filed a petition alleging that the then board of BIFC plundered around BDT 1500 crore through transferring the money in the process of sanctioning loans. The petitioner sought the removal of the board led by Proshanta Kumar Haldar (PK Haldar). Moreover, they asked for directives for the appointment of an independent body to find the embezzlement made by PK Haldar and his cohorts.

HC issued a short order on December 17, However, the full text of the order has been released in January 2021. Justice Muhammad Khurshid Alam Sarkar, in the full text of the order, prescribed several actions. Firstly, the bench appointed a former justice as the independent director and chairman of the company (BIFC) endowed with the power of holding board meetings. Secondly, the court asked the governor of Bangladesh Bank to step into the process of keeping the officials away from harboring financial thugs. Thirdly, the court found the general managers of Bangladesh Bank answerable for the causation of the disaster.

Though HC has ordered several times holding PK Haldar as a money launderer and banned his international travel along with other relative persons, he somehow fled away. Previously, another bench issued a suo muto rule for arresting Haldar and bringing him back in the country. Later on, a separate bench directed the Bangladesh Bank and all private banks to freeze the accounts of Haldar and not to allow the sale of any of his properties. Such active motion of the court indicates a better economic development in the country.

Disqualifying women from becoming Nikah registrar

In 2016 Ms. Ayesha Siddiqua filed a writ petition questioning the order dated 16.06.2014 for cancellation of the panel comprised of three female candidates by Ministry which was prepared for the appointment of Nikah Registrar in a Pourashava of Fulbari Upazilla, Dinajpur. HC issued a Rule Nisi on 26.02.2020. The full-text verdict has been delivered recently.

The court disqualified women from becoming Nikah Registrar taking into account the nature and scope of the role and function of a Nikah Registrar. It contended that the marriage ceremony is usually conducted in mosques or other places and due to menstruation, women are even excused from saying their regular prayer for a certain period. In the instant case, the appointment relates to the marriage registrar in a rural area where the transport system is not developed and the Nikah registrar may be required to travel for a longer period. The practical difficulty, more particularly in the rural area has necessitated the cancellation of the panel by the respondent, where the question is not of discrimination rather a question of practical necessity. The court considering all these practical difficulties discharged the rule in favour of the respondent.

Even though women are not legally barred from being appointed as Nikah registrar under Muslim Marriages and Divorces (Registration) Rules 2009, the court discharged the rule considering the practicalities. This led to the question, whether the cancellation of the panel violates the equality before the law. However, the court did not clarify this position and made the issue a question only of practical necessity. Furthermore, the court took a restrictive approach and was vague in words. In India, women were empowered to become Nikah Registrar in 2015 and they have been trained accordingly which is a manifestation of women empowerment. However, in Bangladesh, the absolute dominance by the male over the function of Nikah Registrar provides more reasons to criticize the verdict.

Directing Department of Environment to file cases against plants which dump waste into Buriganga

In pursuance of a writ filed by Human Rights and Peace for Bangladesh (HRPB) in 2010, HC passed the necessary order for saving Buriganga from pollution. Accordingly, a report submitted by the DoE depicted that 30 washing plants at Keraniganj area were polluting Buriganga’s water through dumping waste in clear violation of the law and court directives. Section 6(1) of the Environment Court Act 2010 empowers the Director-General of DoE to institute cases directly in a special magistrate court or he can lodge FIR in the police station as well. However, the DoE has not brought these plants under the periphery of the court by instituting cases. Therefore, court directed the DoE to file the cases in accordance with the law.

In 2011 HC ordered a continuous mandamus for the best interest of Buriganga and hence reckoned a committee to do the needful and ordered government to take steps for ensuring a safe and waste-free Buriganga. Bangladesh Environment Conservation Act, 1995, Bangladesh Environment Conservation Rules,1997 and Environment Courts Act, 2010 are the three leading laws for the protection and improvement of the environment. Unfortunately, these laws are not properly implemented and filing writ petitions before the HC has been the only effective way. The court is taking the matter into consideration accordingly and has adopted a rule of zero-tolerance against river pollution. if anything contrary to the given directives take place, the court may issue order exercising its suo muto power under Article 102 of the Constitution.