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 January 2022.
The HCD Directs to Formulate a Guideline on Polygamy
The HCD issued a rule on 5 January 2022 calling on the government to explain the constitutional legality of Section 6 of the Muslim Family Laws Ordinance 1961 that allows male polygamy with the permission of the arbitration council constituted under the ordinance. The concerned authorities were also asked by the bench of Justice M Enayetur Rahim and Justice Md Mostafizur Rahman of the HCD to explain as to why they would not be directed to formulate a guideline for the purpose of ensuring equal rights of the wives in the event of polygamy and protecting family life.
The bench passed the rule after hearing a writ petition that challenged the legality of section 6. The writ was filed by SC lawyer Ishrat Hasan. They brought an array of arguments regarding the illegality of the aforementioned section. Firstly, the contention was based on the fact that the holy Quran allowed a man to marry up to four women, only when he can guarantee the equal rights of all the wives he is willing to take. Besides, it was alleged that though ensuring the equal right is the cornerstone of polygamy, it was totally disregarded in the aforementioned section. This stands in contradiction with the constitution.
Considering the socio-economic situation of the women in Bangladesh, the possibility of existing wife or wives becoming vulnerable in the event of polygamy is quite high. The appropriate authority is the Family court for addressing the issues of Muslim Family Law. But the section vests the Arbitration Council with the absolute power for allowing polygamy; thus such provision violates the rights of the existing wife or wives, she pointed out. Lastly she asked in the writ petition to amend the provision and sought that the court must take into account the opinions of the existing wife or wives and examine certificates of health and financial capabilities of the male.
The issue of polygamy in a patriarchal society is extremely contentious. It is widely accepted that in the Islamic era the practice of polygamy was required on account of some compelling humanitarian reasons. However, in our modern society that seeks to uphold equal rights for both men and women, polygamy should be abrogated as its necessity is not relevant anymore. The writ petition correctly manifested that in the religious setting of the Holy Quran that proclaims the entitlement of a male to marry up to four women, the absolute eradication of polygamy may not be possible. Rather the pertinent solution of polygamy can be found in the incorporation of certain checks and balances in the alleged provision so that both men and women can assert their religious and constitutional rights respectively.
The HCD Shuts Down Illegal Brick Kilns in Chattagram
The authorities concerned were asked by the HCD to immediately shut down all the illegal brick kilns in Chattogram and to submit a report after complying with the directive. The HCD also asked the deputy commissioner of Chattogram and the director of Department of Environment in the district to submit all the documents with respect to 71 illegal brick kilns and the fine imposed on them through mobile courts. Besides, the HCD required them to submit the compliance report and sought an explanation as to why there was inaction from the government in shutting down illegal brick kilns, and why it was not declared illegal.
The HCD bench of Justice Md Mozibur Rahman Miah and Justice Md Kamrul Hossain Mollah came up with such directives after hearing a petition filed by the Human Rights and Peace for Bangladesh (HRPB), a rights organisation. The HRPB addressed the issue of contempt of court charge against two executive magistrates on the occasion of their failure to comply with the court order over shutting down the illegal brick kilns at Chandanaish and Lohagara Upazilas in Chattogram. It was argued by the petitioner that the accused executive magistrate SM Alamgir and Zillur Rahman fined some illegal brick kilns at Chandanaish and Lohagara respectively and gave them two months’ time to collect environmental clearance certificates instead of shutting them down. The measures taken by the magistrates did not comply with the directives provided by the HCD on December 14 last which required them to take necessary steps to shut down the illegal brick kilns in Chattogram in a week for the sake of protecting the environment. Thus, their inaction was in contradiction with the HCD directives and amounted to contempt of court, the petitioner contended. So, the writ petition prayed to the HCD to issue a contempt of court rule against them and issue summons asking them to appear before it to offer their explanation on the matter.
Brick kilns running without the environment clearance certificate and licence is not a novel issue, rather the HCD on numerous occasions issued directives for closing down such brick kilns in compliance with the Brick Manufacturing and Brick Kilns Establishment (Control) Act 2013 and also asked the concerned authorities to submit a list of illegal brick kilns in Dhaka and four adjacent districts as well as Dinajpur and Moulvibazar. The operation of illegal brick kilns without ensuring environmental protection has a serious contribution in deteriorating the air quality and increasing air pollution. By the virtue of Article 18A of the constitution, the government is under an obligation to protect and improve the environment. Hence, the stance taken by the HCD reflects the commitment made in article 18A, but it is also to be noted that, in spite of addressing the issue of unauthorised brick kilns persistently and all attempts to shut them down, it is not being possible to have the situation under control. Therefore, for the proper implementation of the said act and for the purpose of conserving the environment and preventing air pollution, all the concerned authorities should come forward since environmental protection has become an integral part of our day-to-day life.
The HCD Directs to Stop Overcharging the Passengers on Public Transport
The HCD, in its response to a writ petition, directed the Bangladesh Road Transport Authority (BRTA) to immediately take effective measures with an aim to stop overcharging of passengers on public transport. The BRTA was also ordered to display the lists of the fares for all public transport on electronic boards at bus stoppages on all the roads across the country within a month. Besides, the HCD asked the concerned authorities to explain as to why the collection and claiming of additional fare from the passengers should not be declared illegal according to the Road Transport Act (RTA), 2018. A rule was also issued asking why the failure to promulgate rules correspondingly to section 122 of the RTA 2018 with respect to fixed standard fares of the public transport should not be declared illegal.
The writ petition was filed by a SC lawyer seeking its directives including a prohibition on increasing the fares of all public transports in future until the formulation of a policy of the RTA 2018. The HCD bench of Justice Mamunur Rashid and Justice Khandaker Diliruzzaman relied on section 34 (3) of RTA 2018 as it states that no public transport can carry passengers without displaying a list of fares on the electronic board at the stoppage and passed the order.
Section 34(4) was also brought into the attention of the HCD as it prevents public transport owners, drivers and transport staff from acquiring additional fares from passengers, except the ones fixed.
Although the RTA is a significant statute, given the financial state of the people of the country, on many occasions, its objectives are not met due to the inaction of the concerned authorities. In recent times, the imposition of additional fares in public transportation has become very common. As a result, it has started harassing the regular passengers on a daily basis. The people of low income are dependent on public transport. Consequently, any additional charge on fares takes a toll on their economic condition. Thus, being victims of price hike as well as increasing charges of the transport, they often fail to meet their basic necessities of life, including food, clothing, shelter, education and medical care. Therefore, the concerned authority should immediately take effective measures not only for the purpose of preventing the violation of the RTA but also for ensuring the meaningful life of the mass people with the fulfilment of basic necessities.
The HCD Directs the Mobile Telecom Operators to Ensure Speedy Network and Internet all over the Country
The HCD directed mobile telecom operators of the country to ensure crystal clear voice call quality, fast internet service and stable network as they advertise and circulate in the television commercials (TVCs), national dailies and other electronic media with a view to solving the problems like call drop, call disconnection, low Internet speed, poor quality of voice calls. A rule was also issued asking the concerned respondents to explain as to why the inaction of them in complying with the said order should not be declared illegal and why they should not be directed to remove any limitation of period in data pack service allowing the subscribers to use the purchased data until full consumption. A five-member supervisory committee was also formed by the HCD to supervise the functions of the complaint cell of the Bangladesh Telecommunication Regulatory Commission (BTRC) for speedy solution of mobile network and mobile internet related issues, and customer complaints. The committee is assigned to scrutinise the concession of resentment and make an extensive proposition on what actions can be adopted to assure speedy voice calls and stable mobile and internet networks.
The HCD bench of Justice Mamnoon Rahman and Justice Khandaker Diliruzzaman passed the order after hearing a writ petition filed by a SC lawyer Saifur Rahman Rahi. As a consumer of all the four mobile phone operators, he filed a complaint with BTRC addressing the issues of call drop, weak network and limitation of period in data pack service. But he did not get any response from BTRC and then he sent legal notice to the respondent. His endeavour went in vain since there was still no response from the part of the respondent; so, he filed a writ petition seeking rules and directions. It was contended that during the outbreak of pandemic, the internet acts as a blessing as it enables people to connect virtually by maintaining social distance. Regardless of low-quality voice call service, poor internet speed, and unstable network connections are increasingly prevalent in our country and consequently, the continuity of such difficulties to some extent turns the blessing into a curse.
The importance of network and internet in the modern age of globalisation beggars description; on the contrary the issues regarding disruption have been worsening with no tangible improvement in sight. Since the internet has become a crucial link during the wave of pandemic, the HCD accurately took notice of the issues pertaining to mobile phone service. Millions of people across the world now rely on their smartphones as a quick means of accessing the Internet. The courts, educational institutions, banking and business sectors are widely dependent on the service of the internet, yet the condition of mobile Internet speed in Bangladesh is awful. The Ookla Speedtest Global Index for December 2021 shows Bangladesh ranked 128th out of 138 countries for mobile broadband speed. Therefore, it can be concluded the pertinent stance of the HCD will not only solve the problems with call drop or bad internet service, but also help the people around the country to reap out the advantages of the modern technologies.
