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 February 2022.
Asking the List of Chemical Warehouses in Old Dhaka
On 1 February 2022 the HCD ordered the concerned authorities to submit within 17 April 2022 a list of buildings that are used as chemical warehouses in Old Dhaka. The authorities include Secretaries to the Ministry of Industries, Ministries of Environment, Forest and Climate Change, mayor of Dhaka South City Corporation (DSCC), chairman of Rajdhani Unnayan Kartripakkha (RAJUK), Director General (DG) of Fire Service and Civil Defence, DG of Department of Explosives. The HCD also sought the progress report of establishing permanent and temporary Chemical Estates in Munshiganj, Shyampur and Tongi.
The HCD virtual bench of Justice Farah Mahbub and Justice SM Moniruzzaman passed the order after hearing of a Writ Petition (WP) filed by Bangladesh Environmental Lawyers Association (BELA), Association for Land Reform and Development (ALRD), Ain O Salish Kendro (ASK), Fatema Akhter and Md Nasir Uddin in the form of Public Interest Litigation (PIL).
The HCD further issued rule asking why the 11 agencies concerned will not be declared illegal as they failed to take action as per the government reports, and to take action against the owners of the illegal chemical warehouses.
On the WP’s demand of compensation for the victim families of Churihatta fire incident in Old Dhaka on 20 February 2019 – which killed 71 people and injured many others – the HCD asked explanation within four weeks as to why the government should not pay compensation to the families and rehabilitate them.
Moreover, the Court asked why the concerned authorities shall not be directed to implement the recommendation for widening roads in Old Dhaka and to provide adequate water supply and hydrant points there.
Fire incident in Old Dhaka is very common. Most of those incidents reportedly originate from chemical warehouses. Nimtoli incident in 2010, Churihatta incident in 2019 and Armanitola incident in 2021 are the glaring examples. The chemical warehouses need to be shifted elsewhere from the residential area urgently. The HCD’s direction for submitting list seems a forwarding step, though little, in this regard. However, proper implementation of the directives is necessary because promises to transfer those warehouses had been made several times but only a few of them were shifted to Keranigonj, others being still running in Old Dhaka.
Declaring Phensedyl a Drug and Carrying It a Punishable Offence
In 1997 one Badal Kumar Pal of Jhenaidah Sadar upazilla was arrested from Jessore’s Benapol area for possessing 250 bottles of phensedyl. In 2000 trial court convicted him for life imprisonment. On appeal, the HCD in 2003 acquitted him observing that phensedyl is not a drug and carrying it is not an offence. The state party appealed against the decision of the HCD.
On 1 February 2022 a bench of the AD consisting of five judges headed by Chief Justice Hasan Foez Siddique declared that phensedyl is a drug and carrying it is a punishable offence. Thus the SC upheld the trial court’s conviction of Badal Kumar Paul.
The reason for declaring phensedyl as drug is that, as DAG Biswajit Debnath said citing the documents and research papers, phensedyl contains codeine phosphate and chlorphenamine ‘which are produced from opium and injurious to public health.’
Phensedyl is a drug that is primarily used as a medicine for cold cough. However, this drug has long been misused since the mid-90s and the number is increasing day by day. In 2016 the security agencies seized 566,525 bottles of phensedyl. The number rose to 720,843 in 2017, 715,529 in 2018 and 976,663 in 2019. In 2020 the figure went up to 1,007,977. The Ad’s decision declaring it a drug and carrying it illegal can thus be considered a timely move.
Seeking the List of Illegal Brick Kilns in Dhaka and Four Adjacent Districts
Upon hearing a WP filed by Human Rights and Peace for Bangladesh (HRPB), the HCD virtual bench of Justice Ashfaqul Islam and Iqbal Kabir on 1 February 2022 directed the government to submit a list of illegal brick kilns in Dhaka, Gazipur, Munshiganj, Narayanganj and Manikganj. The Deputy Commissioners (DC) of the five districts were to submit the report virtually on 15 February 2022. HRPB filed the WP in January 2019 affixing a daily newspaper report of 21 January 2019 on air pollution in Dhaka.
As per the court direction, DG of Department of Environment (DoE) Abdul Hamid on 16 February submitted a list which states that there are a number of 318 brick kilns in those five districts and 95 kilns were shut down by the mobile courts conducted by the DoE. However, as the list of all brick kilns has not been obtained, the HCD directed the state to submit the list of in the form of an affidavit.
The Court later heard the statements of the DCs of Dhaka, Gazipur and Manikganj, who were present during the hearing. Being asked by the Court about the process of conducting mobile court in the brick kilns, the DG of the DoE responded that the magistrates conduct the mobile court and the law enforcing agencies help them. The Court fixed 23 February 2022 for the next hearing.
Brick Manufacturing is one of the major sources of environmental pollution in Bangladesh. Bangladesh loses 1 percent of its agricultural land annually and brick manufacturing accounts for 17.4% of that land, which is 18000 hectares. It uses 60 million tons of topsoil annually for making clay bricks. Due to traditional manufacturing process, brick kilns burn about 5 million tons of coals and 3 million tons of wood to produce 25 million bricks a year. Every year Brick Kilns emit 15 million tons of greenhouse gas, which is 20% of total emission by the country whereas its contribution to GDP is only 1%.
Brick kilns are also one of the three major sources of air pollution in Dhaka as the report of the Department of Environment (DoE) and the World Bank points out. Listing the illegal brick kilns and shutting them down is exigent for the protection of environment. The apex court’s intervention in this regard is praiseworthy.
Seeking Plan to Curb Air Pollution
On 15 February 2022 upon a preliminary hearing of a WP filed by the BELA, the HCD bench consisting of Justice Farah Mahbub and Justice SM Moniruzzaman ordered the authorities concerned to identify the most polluted areas of the Country and plan to curb air pollution.
The HCD directed to install Continuous Air Monitoring Stations (CAMS) and to introduce alert system so that people can get protected from harmful air. The authorities were required to submit progress report on the implementation of the directives given by the HCD within four months. The court fixed the next hearing on 26 June 2022.
Air pollution causes many diseases like wheezing, chest pain, asthma, upper respiratory infection, and even death. The World Health Organization statistics shows that every year around seven million people die as a result of diseases connected with air pollution. Air Quality Index 2021 lists Bangladesh as the worst air quality country among 181 countries worldwide. According to Environment and Social Development Organization (ESOD), from 2015 to 2019 the number of asthma patients in Bangladesh rose from 3326 (2015) to 78806 (2019). Deaths due to this disease went up ten-fold from 56 to 588 within these 5 years. So, immediate action is necessary to control air pollution. The HCD’s order in this regard is commendable.
Seeking Opinions of Amicus Curiae on Hindu Inheritance Law
On 13 February 2022 one Ananya Das Gupta, daughter of late Ashok Das Gupta by filing a WP challenged the legality of the provision on Sanatan Hindu women not receiving any share of inherited property from their father.
Upon a preliminary hearing on 14 February, the HCD asked the government to explain why the provision of a law barring Hindu women from inheriting their fathers’ property ought not to be declared unconstitutional. Eight respondents including the Secretary of the Cabinet Division, Secretary of the Law, Justice and Parliamentary Affairs, Secretary of the Religious Affairs and Hindu Religious Welfare Trust were asked to reply to the rule within a week.
On 27 February 2022 the HCD bench of Justice Mamnoon Rahman and Justice Khandaker Diliruzzaman sought to hear the opinions of amici curiae (friends of the court) on the provision of law barring Hindu women from inheriting paternal property.
The amici curiae of the court are Attorney General AM Amin Uddin, senior advocate Prabir Niyogi, Subrata Chowdhury and Md Kamrul Haque Siddiqui. The court will also hear the opinions of lawyer Tapan Chakraborty who conducts civil cases on inheritance of followers of Sanatan religion and the General Secretary of Bangladesh Hindu Law Reform Committee, Pulak Ghatak. To hear opinion, the Court further made five human rights organisations complementary petitioners: BLAST, ASK, Manusher Jonno Foundation, Bangladesh Mahila Parishad and Naripokkho.
The HCD requested the Chief Justice to form a larger bench to hear the petition as it involves constitutional matter. The larger bench will then hear the opinions of amicus curiae.
Personal and religious laws are sensitive. If any question is raised or any provisions of those laws are challenged in a court, and if the court thinks that the opinions of experts are necessary to settle the question, the court can appoint amicus curiae and hear their opinion. A judge is not necessarily an expert on every subject. If any assistance is needed on any point, the law allows him to take that assistance. The HCD’s decision of hearing expert opinions on personal law matters sets a good example for the upcoming days.