This edition of ‘From the Court Corridor’ curates the notable pronouncements of the Appellate Division (AD) and the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh in July 2023.

Japanese mother awarded custody of her two daughters over a case of parental abduction

On 16 July 2023, a family court of Dhaka granted Japanese national Nakano Eriko custody of her two daughters after a hefty judicial proceeding. The court held that the girls’ overall safety and well-being would be better ensured by remaining living with their mother. The decision came after the AD ordered on 13 February last year that the custody of the two girls would be decided by the family court.

Imran Sharif, a Japanese national of Bangladeshi descent, married Nakano Eriko in 2008; the couple has three children together. Imran moved with his daughters to Bangladesh when Eriko wanted a divorce in January 2021 due to marital problems. Eriko submitted a custody petition to Bangladesh’s HCD, which first gave custody to Imran. Later, the AD ruled that Imran should be given visitation rights and that the children should remain with their mother until the family court resolved the situation. The welfare of the children was given the utmost importance by the court. Finally, on 16 July 2023, the family court emphasized on the doctrine of best interest and granted Eriko custody as a result of her medical profession, for ensuring the girls’ security and well-being.

In the trials, the implications of The Hague Convention on the Civil Aspects of International Child Abduction were invoked by Eriko’s international family lawyer. Bangladesh is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. However, the court decision was very much influenced by the convention. Section 17 of the Guardians and Wards Act, 1890 obliges the court to consider the welfare of the minors as the paramount point in deciding guardianship of a minor. Also in Ayesha Khanum v Major Shabbir Ahmed, the HCD held that the paramount need for the welfare of the child supersedes the personal laws that govern the parties. In the present case, the girls’ mental, emotional, social, and overall well-being were prioritized. 

Japan operates a sole custody system instead of joint custody. The sole custody system might become more complicated when a foreign spouse is involved, increasing the risk of international child abduction by non-custodial parents. To counter this, Japan joined The Hague Convention in 2014, which also provides rules and procedures for the return of children under age 16 to their country of habitual residence if they have been taken or retained by one parent.

This case raised concerns about parental abduction- a significant post-divorce issue in a consummated marriage. And Bangladesh not being a part of the international convention relevant to it might stir up more similar complications in future. Hence, it is high time for Bangladesh to join the Hague Convention on the Civil Aspects of International Child Abduction to prevent other foreign parents from enduring the inconvenience and lengthy legal processes to secure custody of their children.   

HCD orders to pay arrears to 1,500 BSMMU non-resident doctors

On 5 July 2023, the HCD ordered authorities to pay the salaries and allowances of 1,500 non-resident doctors at Bangabandhu Sheikh Mujib Medical University (BSMMU) within 60 days, which were long due for nine months. 

A bench of Justice SM Kuddus Zaman and Justice AKM Rabiul Hassan passed the order after the hearing of a writ petition filed by SC lawyer Md Monir Uddin in June.

The lawyer said they sent a notice regarding the enhancement and payment of the honorarium of 1,500 non-resident doctors to the concerned officials on 25 June and subsequently filed the writ as the notice remained unattended.

The lawyer also noted that the Health Ministry had claimed to disburse the funds for the honorariums, while the Vice-Chancellor of BSMMU stated that his office had no funds to pay the honorarium arrears.

He further told the court that he moved the HCD after he learnt from various newspapers of the fact that 1,500 non-resident doctors of the BSMMU were waging a movement demanding payment of monthly honorariums for the past nine months.

Article 20(1) of the Constitution of the People’s Republic of Bangladesh provides for the right of proper payment according to the labour given. Judging from the perspective of the protesters, their claim is completely valid, as their service is instrumental for the health sector and public health. Keeping them unpaid may create further unrest, hindering the basic necessity of medical care reaching the people in general. Hence, HCD’s decision directing the corresponding authority to pay the due arrears to BSMMU doctors is a significant step towards bringing the unrest in such a crucial professional field to an end.

SC directs swift resolution of the rule on charge framing against Dr Yunus’ labour law violation case within two weeks

In a recent development, the AD has instructed the HCD to address a rule pertaining to the charge framing against Nobel Laureate and Grameen Telecom Chairman Dr Muhammad Yunus and four others. This rule questions the charge framing initiated by a lower court in a case relating to the alleged violation of labour law.

A six-member bench of the AD led by Chief Justice Hasan Foez Siddique (as he was then) issued this directive. Representatives for both the state and the defendants appeared during the proceedings. Attorney General AM Amin Uddin and Assistant Attorney General M Saiful Alam represented the state, while Advocate Abdullah Al-Mamun and Advocate Khwaja Tanvir Ahmed appeared for Dr Yunus and the other defendants. Senior Advocate Khurshid Alam Khan represented the Directorate of Inspection of Factories and Establishments.

The case ensued when Labour Inspector Arifuzzaman of the Department of Inspection for Factories and Establishments filed charges with the Dhaka 3rd Labour Court on 9 September 2021.

Besides Dr Yunus, the accused include Ashraful Hasan (CEO of Grameen Telecom Trust), trustee Nurjahan Begum, and managing director M Shahjahan.

Allegations against the accused include failing to designate 101 workers and staff as permanent employees, neglecting to establish participation and welfare funds for them, and not allocating five per cent of the company’s profits to workers as required by law. Subsequently, a criminal case was filed under sections 4, 7, 8, 117, and 234 of the Labour Act.

The proceedings began in October 2021, when the accused was granted bail. Dr. Yunus then petitioned the High Court for the dismissal of the case in December of that year. This attempt initially was successful. However, the High Court ultimately denied Dr Yunus’ dismissal plea in August 2022, leading him to submit an appeal. In June 2023, the Dhaka Labour Court indicted the defendants for breaking labour regulations. Dr Yunus and others disputed the charges and sought a stay order, which is currently being examined by the High Court.

The prosecution against Dr Yunus includes allegations of violating particular provisions of the Labor Act, which could result in imprisonment or fines. Dr Yunus tried to dismiss the case before the High Court under Section 561 of the CrPC (The Code of Criminal Procedure,1898), but his plea was dismissed and then upheld by the AD. The primary question before the AD was whether a civil case should have been filed against Dr Yunus rather than a criminal one, given the existence of civil remedies for the accused offences. The AD has ruled that criminal charges should not be brought when alternative civil penalties or remedies are available under the Labour Act. So it appears that the charges against Dr. Yunus could be addressed through civil procedures instead of the criminal ones.

Contributor