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 November 2021.
The AD seized the sessional power of a judge for violating the court’s stay order on bail
The erstwhile judge of Dhaka Women and Children Repression Prevention Tribunal-7, Musammat Qumrunnahar was withdrawn from criminal sessional power on the ground of not complying with the stay order of the AD. Following a bail petition filed by one Aslam Shikder, a former programme producer of a private TV channel, who had allegedly raped a dance artist in 2018, the HCD granted him bail in the same year. Nonetheless, there being specific allegations and evidence in support of the commission of the crime, the AD of the SC stayed the bail on 25 June of the same year.
Despite the stay order, Judge Kamrun Nahar granted him bail for which she was ordered to appear before the court with an explanation. The court also rescinded the bail and asked accused Aslam to surrender before a subordinate court.
However, allowing such a bail disregarding the order of this court evidenced that the mentioned judge acted in defiance of the AD’s stay order. She also failed to take notice of the fact that the previous judge of the same court had revoked the bail of the accused following the stay order. The AD observed that she granted the bail ignoring the case records with ‘bad intention’. As such the court found her unfit to conduct any type of criminal proceedings and seized her sessional power for the sake of complete justice under Article 104 of the Constitution.
Earlier, Qumrunnaher was temporarily withdrawn from her judicial duties by the then Chief Justice on November 14 for verbally recommending the police not to register any rape case after 72 hours of the incident in the verdict of another rape case in connection with charges of rape in Raintree Hotel four years ago. Her statement sparked debates among the right activists and the social media netizens for there is no time limit for a criminal complaint and such a statement, despite lacking precedential value, misguides the laymen and is in violation of article 31 of the Constitution of Bangladesh and the right to access to justice.
The HCD listened to the Japanese children and directed to let them stay with father
The issue of custody of two Japanese children arose when the parents started the process of divorce on 18 January of this year in Japan. The father, Bangladesh-born US citizen, picked his two daughters out of three from their school in Tokyo on January 21 and returned to Bangladesh with them without the consent of their mother. After that the mother, a Japanese citizen, came to Bangladesh and filed the writ petition with the HCD seeking directives on her custody of the children on July 18.
The children went through many ups and downs due to the varying decisions of the HCD from time to time and the lack of consensus of the parents. The HCD bench first directed Imran to produce his daughters before it. However, the Criminal Investigation Department of Police had already taken the children into their custody. Later the bench of the HCD consisting of Justice M Enayetur Rahim and Justice Md Mostafizur Rahman concluded that the children would remain at a victim support centre till the next hearing. But then they were moved to a residence at Gulshan to ensure a family environment for them according to the direction of the HCD.
Finally in its attempt to guide the parents to reach an amicable settlement, the HCD asked the lawyers to persuade them but no agreeable solution through negotiation could be reached. As such the HCD paid heed to what the children wanted rather than emphasize on what the parents wanted. It further ruled that they would remain with their father and the mother would meet the children thrice a year at the expense of the father. Moreover, the mother was allowed to meet her children at any other time at her own expense.
The HCD also asked the father to provide the mother with Tk 10 lakh for her legal expenses in running the case and to allow the children to talk to their mother twice a month. While delivering the judgment Justice Enayetur Rahim opined that any party involved in that petition might win, but it was the two children who would fall the victims; as such they heard statements from the children three times and considered their welfare in accordance with the court’s conscience. The court took another appreciable move while keeping the writ in the form of continuous mandamus and asked the social welfare officer to submit a report on the status of the children every three months.
Such a rule on custody of children for the welfare and best interest of the same sets a remarkable example for all the future cases. Apart from this judgement, prioritizing the children’s welfare has been a judicial trend nowadays with a deviation from the traditional age rule of Hanafi law.
The AD upholds the death sentence of a dreaded extremist after hearing a petition
Salauddin Salehin and Rakib, two dreaded extremists from the banned JMB, were accused of the killing of one Goni Gomez of Jamalpur in 2004. A five-member bench of the AD, led by Chief Justice Syed Mahmud Hossain passed an order reaffirming the death penalty of Salehin after hearing a petition and rejected the appeal of Rakib as he already died at the gunfight with the police.
In 2006 Dhaka Speedy Trial Tribunal sentenced them to death in the case; at this Salehin sent a letter to the SC claiming to have refused the sentence of death penalty and he would only appeal to the court of Allah. However, when these death row convicts appealed before the HCD; the HCD upheld the death sentence and rejected the appeal. Being rejected they appealed before the AD. In the meantime Salehin became a fugitive since 2015 when an extremist abducted him from a prison van transferring him to Mymensingh jail for appearing before court for another case. Hence, the AD while maintaining the death penalty of Salehin observed that the court of law would not shelter such a fugitive.
As the whole world is marching towards the abolition of death penalty, the imposition of such a sentence in absence of the accused invokes much debate on the question of right to life and protection of law. On the other hand, whether the extreme attitude under the veil of so-called religious sentiment and killing of people of the other religions can be brought under the doctrine of ‘rarest of the rase case’ for validating death penalty can invoke controversy too.
The HCD asked government authorities to submit a complete list of all rivers in the country
On a public interest writ petition filed by the Bangladesh Environment Lawyers’ Association (BELA), a bench of HCD consisting of Justice Md Mojibur Rahman Mia and Justice Md Kamrul Hossain Mollah gave the order and issued a rule on 21 November of this year. While asking the Finance Ministry, the National River Conservation Commission (NRCC), and all divisional commissioners to prepare a detailed work plan to delineate the border of rivers, the HCD emphasized evicting all the encroachment from the rivers within this period.
An explanation as to why the government failed to comply with the order of 2009 of the HCD that directed to demarcate of all rivers, free and save them from encroachments, evict all encroachers, and install proper demarcation pillars for the Turag River, should not be held unconstitutional was also called by the HCD. Authorities concerned were asked to explain why they failed to take initiative for demarcation and mapping of all the rivers of the country in accordance with both CS and RS records. The failure to install demarcation markers, including signs, symbols, and trees planted on the river banks to protect rivers from encroachers was also called for explanation. The respondents of the writ petition were also asked to explain in four weeks why their failure to identify all rivers of the country, protect the rivers from encroachments and occupation and evict the encroachers and occupiers as well as the failure to restore flows of the rivers to their original state would not be declared illegal.
This writ petition that asserted that various river custodians of the government maintain different and differing data regarding the number of rivers in the country (770 rivers across the country as per the National Rivers Conservation Commission; 496 rivers as per the shipping ministry and 405 rivers as per the Bangladesh Water Development Board) sought for a full and comprehensive list to protect them from encroachers. It further underlined that river encroachers cannot be brought within the ambit of law unless the actual number of rivers across the country is ascertained.
The approach taken by the court in this writ petition reflects the article 18A of the constitution that requires the state to protect and improve the environment and to preserve and safeguard natural resources, biodiversity, wetlands, forests and wildlife for the present and future citizens. It also upholds the environmental trend of the whole world that seeks to preserve the rivers and let them flow in their own course, being free from the river encroachers and grabbers.
