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 May 2021.
HCD’s direction to S Alam Group to pay tk 5 lakh each to victims’ families
Two writ petitions were filed before the HCD in response to the brutal killing of 7 workers and injuring of at least 19 workers of an under-construction coal-fired power plant owned by S Alam Group in Chattogram which took place on 17 April. At first Ain O Salish Kendra (ASK), a leading rights organisation, filed a writ petition on 21 April seeking its directive on the authorities concerned to conduct a judicial inquiry over the incidents. Then on 28 April five rights organisations collectively submitted another writ petition seeking the directives of the HCD in connection with the incidents of killing and injuring workers between 2016 and 17 April this year.
The HCD bench of Justice M Enayetur Rahim and Justice Sardar Md Rashed Jahangir held a hearing simultaneously on both the writ petitions and asked the deputy commissioner and the superintendent of police of Chattogram to submit their inquiry reports within 45 days. The bench also directed S Alam Group to immediately give Tk 5 lakh to each of the families of the seven victims who were killed by the police. The heinous killing took place while the workers were peacefully demonstrating for their five-point demands, including payment of their overdue salary. Therefore, S Alam Group was ordered to submit a report within 45 days mentioning the measures it had taken to compensate the families of the deceased and injured and also to ensure their treatment. It also asked the authorities concerned of the government and S Alam Group to ensure that any labour or journalist in that area was not harassed.
The HCD also issued a rule asking the authorities concerned to explain why a directive should not be given to them to form a judicial inquiry committee to probe into the incident. It asked the government authorities to show causes as to why their inaction and failure to take appropriate legal actions against the perpetrators who killed and injured the workers on 17 April and ensure subsequent safety and security to the workers and their families should not be declared unlawful. In the rule the HCD also asked them to explain why they should not be directed to give compensations of Tk three crore to each of the families of the deceased workers and Tk two crore to each of the injured workers to ensure justice.
From the petitioner’s lawyer, it was argued that the acts of police including the blank shots and indiscriminate fire on the workers were in violation of the Police Regulation 1943 as they (workers) raised their lawful demands. Also, an open fire by the police on a peaceful demonstration of the laborers constituted a gross breach of article 32 and article 37 of the constitution.
The notable rule and order of the HCD, therefore, are really praiseworthy and pertinent given the serious violation of human rights and the failure of the duty of police to ensure safety and security. The manifestation of aggression of the police is an outcome of colonial hangover which still largely prevails in the society resulting in extra judicial killing by the law enforcement agency. Having said that, it can be expected that the positive stance and zero tolerance attitude of the HCD regarding the implementation of the fundamental rights of the labor will be further reflected in the conduct of authorities concerned and the government.
Writ seeking a fresh merit list of MBBS examination turned down by the HCD
A writ petition was filed with the HCD on 19 May by the SC lawyer Humayun Kabir Pallab on behalf of 324 disqualified candidates as per the “faulty merit list”. The petition was presented requesting the HCD to direct the authorities concerned to cancel the said merit list and publish a fresh merit list through another evaluation of the MBBS admission test result under the 2020-21 academic session.
The rules of admission test published by the Department of Health Education on 8 February provides that if a candidate participates in the admission test for the second time while being enrolled in a medical college, 7.5 marks will be deducted from his total marks. The petition claimed that there was a violation of this rule in the aforementioned examination. Again, according to the admission test rule, if a candidate appears in the admission test after a delay of one year after passing the HSC examination, 5 marks will be deducted. But the published result showed that this rule was not followed in the case of many candidates. So owing to numerous errors and major inconsistencies in the published result, the writ petition was made aiming for a fresh merit list.
The virtual court of justice M Enayetur Rahim and justice Sardar Mohammad Rashed Jahangir passed the order rejecting the writ petition and observed that the remedy for the aforesaid claim was available outside the periphery of writ. It mentioned that if any aggrieved candidate has any claim over the MBBS admission process or its merit list, he/she can make an application to the Directorate General (DG) of Medical Education for remedy. The DG shall resolve the issues arising thereof in seven days after receiving the complaint.
According to article 102(2)(a)(i), the writ jurisdiction of the HCD cannot be invoked when an equally efficacious alternative remedy is available for the claim made in the petition. Therefore, the maintainability of the petitions was questioned by the HCD and another remedy being available to the petitioners, the present petition was turned down. However, in reality, mere presence of alternative remedy may inhibit the discretion of the Court but it does not limit its jurisdiction, especially when there is a gross breach of fundamental rights.
The HCD adjourns its hearing of the writ petition relying on the government and the environmentalists
In the event of ongoing protest against the project named Shawdhinata Stambha Construction Project in Dhaka Third Phase worth Tk 265.44 crore that includes felling down trees to construct buildings, a contempt of court petition was sought. Previously, the HCD on 7 July 2009 directed the government to identify and preserve all the important historic places related to the republic’s Liberation War including Suhrawardy Udyan. It also ordered the government to take steps to protect and maintain the historic places at the Udyan where Bangabandhu delivered his historic speech on 7 March in 1971. The present petition was filed by two SC lawyers Mahbubul Islam and Ripan Barai asking the court to order three government officials to stop felling trees for opening a restaurant in Suhrawardy Udyan. It stated that the matter was of public interest because the trees were cut in violation of the court’s 2009 directives, causing environmental damage.
The petitioner also argued that the activities of the project were not in compliance with the Constitution. Article 24 of the Constitution stipulates that the state shall adopt measures to protect the objects or places of historic importance or interest. Thus, chopping down trees to make way for the construction of walkways and other structures is undoubtedly questionable and unjustifiable.
Considering all the relevant issues, the petition presented that the felling down of at least 50 trees at the historic Suhrawardy Udyan was in breach of 2009 directives. This incident also created a massive outrage which initially induced the HCD to pass an order asking the state to take necessary steps so that no more trees at Suhrawardy Udyan were felled till 20 May. Meanwhile, the War Affairs Minister AKM Mozammel Haque emphasised on changing the design in case of any necessity. He also ensured that the next decision would be made after talking to environmentalists. Consequently, the HCD, expressing hope that the problems would be resolved amicably, through discussions between the government and environmentalists, adjourned the hearing for two weeks. It asserted that it would pass necessary orders later on, after the government’s steps regarding the matter. As per article 112 of the constitution, the government shall be under an obligation to act in aid of the SC.
The historical importance of Suhrawardy Udyan is unquestionable. So, Upholding its historical dignity and magnificence through the interference of the HCD in 2009 was praiseworthy. However, this time the protection of Suhrawardy Udyan was questioned for its environmental issues. The implementation of the said mega project at this historic site encountered much backlash from different organisations and environmental activists in the wake of ensuring the rights of nature. So, the protest throughout the capital and the prompt response of the HCD resulting in the assurance of the minister concerned are the harbingers of the growing concern about the environment. The HCD did a notable job by immediately prohibiting tree felling and involving the environmentalists therein.
The AD stayed the bail to convicts for an attack on Awami League chief Sheikh Hasina’s Motorcade
On 30 August 2002 the then opposition party leader Sheikh Hasina, now the prime minister, was under an attack when she was visiting Jashore. Some Bangladesh National Party (BNP) men allegedly kept a bus haphazardly on a road near the BNP office. As soon as Hasina’s motorcade reached the area, BNP men launched an attack on it. On 2 September of that year a case was filed by Kolaroa unit freedom fighters’ commander Moslemuddin against 27 named and 70 to 75 unnamed accused which included several BNP leaders and activists. After more than a decade of the incident, the case was recorded following a directive of HCD.
Satkhira Chief Judicial Magistrate Md Humayun Kabir delivered the verdict implicating fifty people, including a former BNP lawmaker. They were sentenced to imprisonment for different terms in accordance with their involvement with the attack. However, the HCD granted bail to seven convicts in pursuance of separate petitions filed by the seven convicts on 25 May of this year. The HCD bench of Justice Mustafa Zaman Islam and Justice Md Iqbal Kabir Lytton granted the bail stating there is no specific allegation against them. In consequence of the order of bail, three petitions were filed by the state seeking stay on the bail orders. During the virtual hearing a full bench of the AD headed by Chief Justice Syed Mahmud Hossain passed the order and stayed the order of bail. It also asked the state to file a leave to appeal petition with this court against the HC orders by 20 June.
It should be always remembered that bail should never be withheld as a means of punishment. If the defence satisfies the court that there is no reasonable ground for believing that the accused committed a non-bailable offence, the court has no option other than granting bail. This is so because refusal of bail may result in the violation of the fundamental right to movement of a citizen that has been enshrined in article 36 of the constitution.
Thus the subsequent stay order of the AD contradicting the order of bail granted by the HCD for the absence of a specific overt act involving the accused can give rise to skepticism among the common man regarding the political bias of the court.
