From the Court Corridor: February Edition (2021)

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 February 2021.

Ordering the removal of all online uploads of the documentary by Al Jazeera titled ‘All the Prime Minister’s Men’

After the Qatar-based news channel Al Jazeera aired the documentary titled ‘All the Prime Minister’s Men’ a writ petition was filed in the HCD seeking its directive on the government to ban the broadcast of Al Jazeera Television in Bangladesh on the ground that the documentary damaged the image of Bangladesh at home and abroad. The impugned documentary claimed among others that the army chief of Bangladesh helped his three brothers escape and run businesses abroad by assisting them in making an elaborate network of fraudulent paperwork, including fake passports and birth certificates. Moreover, it alleged that the army chief’s activities to help his brothers had the implicit support of Bangladesh Prime Minister Sheikh Hasina.

The HCD sought opinions from six amici curiae regarding the matter and five out of six amici curiae told the HCD that the writ petition was not maintainable. They opined that the documentary did not raise any allegation of violation of fundamental rights and as a result, the writ petitioner has no logical reason to be aggrieved and move the petition. They further stated that the laws of the land are not enforceable to restrict freedom of speech outside the country and the petitioner has not served any legal notice to the government to this effect. However, the other expert Abdul Matin Khasru opined that the HCD could order the government to ban the documentary because it was an attack on the prime minister, the army, and the integrity and solidarity of the country.

The HCD observed that the petitioner had no locus standi to file the writ petition since there was ‘no prescribed law’ for the Bangladesh Telecommunication Regulatory Commission (BTRC) to ask any social media platforms to take down any content ‘that could malign the prestige and dignity of an elected democratic government’. However, the court exercised its extraordinary jurisdiction and ordered BTRC to immediately remove the documentary.

This decision of the court can be questioned on the ground of the right of freedom of expression as enshrined in the constitution of Bangladesh and also the state’s responsibility under international instruments. On the other hand, the entire documentary was recorded using hidden cameras and was based on unofficial interactions. Thereafter, it made conclusions regarding sensitive issues. So, the HCD, for the better interest of the country, ordered to take down the documentary.

Ruling on the government for compensation and rehabilitation for rape victims

On 2 January 2021 Children Charity Bangladesh Foundation (CCBF) filed a writ petition asking why the government should not compensate the rape victims for the violation of their fundamental right under article 32 of the constitution.

The HCD then issued a rule asking the government to explain in a week why it should not be directed to outline a scheme to ensure compensation for rape victims to make their right to life effective and meaningful. The court further asked the authorities concerned with the government to show causes why their failure to take appropriate steps for rehabilitation of rape victims should not be declared illegal. The HCD also asked the respondents to respond as to why orders should not be made to give adequate compensation to three children of Dinajpur, Rangpur, and Khulna, who were raped in 2017 and last year in separate incidents and why police should not be directed to produce the medical and investigation reports in connection with the incidents before the court. Here, the petitioner argued that around 23,000 women and children have reportedly been the victim of rape and of which 185 were killed after being raped in the last five years. Unfortunately, around ninety-seven percent accused of such cases got acquitted from the court.

The writ petition, undoubtedly, involves a crucial issue of our socio-economic context regarding the deplorable state of the rape victims. As such, the court has correctly observed the merit of the writ and consequently issued such a rule that not only upholds the dignity of a woman but also protects her fundamental right. It is expected that the court will make the rule absolute and thereby reduce the plight of the rape victims.

Observation regarding the corruption of public officials and judges

A writ petition was filed by Savar Thana Osohay Poribar Punorbason Bohumukhi Samobay Samity Ltd challenging a lower court verdict that ordered the release of a land of vested property of 15.74 acres at Gandharia Mouza in Savar within the possession of Sree Madhob Chandra Saha Poddar and his now-dead brother Sree Ruhi Chandra Saha Poddar. But the HCD observed in its verdict that the order of the lower court was not based on the detailed grounds. The owner of the land did not pay the holding tax of the land and failed to produce documents of electricity bills and any certificate from local elected representatives. In the affidavit, the HCD observed that there was no mention of the holding number of the claimant’s residence in Kalshi, which demonstrated his deception. It was also discovered that Madhob Chandra Saha committed utter forgery with the court by faking his religion as Islam in the affidavit. The order of the lower court was, thus, obtained by Madhob through forgery. The HCD, after hearing the writ petition meticulously, scrapped the impugned order of the lower court and fined Madhob Tk 1 crore for committing fraud. It also required the deputy commissioner of Dhaka to take necessary measures for establishing a park on the land for children.

Besides, the HCD in its full-text verdict criticized the handful of officials and staffers who facilitated the land grabbers in looting the assets of the nation. It pointed out the struggle of working people and foreign currency earners and their faith as entrusted in judges to look after their property. Therefore, the HCD observed that the judges have the sacred responsibility to ensure that no frauds, hypocrites and cheats grab public property and unfortunately this sense of responsibility was not reflected in the lower court’s order. The HCD delivered its verdict after scrutinizing each and every relevant detail of the impugned order which in fact exhibited the true nature of the court’s responsibility.

Issuing directives to address the terrible air quality of the capital

On 4 February 2021 the HCD issued three stern directives to three authorities to improve the air quality of the country while deciding a writ petition filed by the Human Rights and Peace for Bangladesh (HRPB) seeking necessary directives on the authorities concerned to stop air pollution in the capital. Firstly, it asked the director-general of Fire Service and Civil Defence to take necessary steps to spray water using its vehicles on roads at the busy entrances of the capital, including Gabtoli, Jatrabari, Purbachal, Keraniganj and Tongi on an urgent basis without compromising their main duty of dousing flames. Secondly, it directed the Dhaka Water Supply and Sewerage Authority (Wasa) to take measures for supplying sufficient water to Dhaka city corporations for spraying on streets. Thirdly, it asked the Dhaka north and south city corporations to spray water on streets in such a way that small trees planted on the central reservations get wet as well and survive. Furthermore, the HCD expressing its grave concern over the air pollution condition ordered the authorities concerned to submit separate reports regarding compliance with these directives in 30 days. In the same writ petition, on 24 November 2020 the HCD observed that the air pollution level in Dhaka was very alarming and the people’s right to life might be compromised if pollution could not be controlled.

The air quality of the country has deteriorated over the past few years and it became distinctly obvious when Bangladesh topped the list of worst air quality countries of the world in 2019. Therefore, the HCD has correctly intervened and taken some long due measures that should have been taken by the respective authorities to check air pollution. However, the government has the ultimate responsibility to ensure that all the authorities concerned comply with these directives to make some significant changes for the better protection of the right to life of the citizens.