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 October 2023.

HCD orders to follow guidelines at hospitals to prevent unnecessary Cesarean Sections (CS)

On 12 October 2023, the HCD directed the government to convey relevant guidelines in six months and strictly follow them to prevent unnecessary Cesarean Sections (CS) at all private and public hospitals and clinics.

After hearing the writ petition filed in 2019 by Bangladesh Legal Aid and Services Trust (BLAST), the HCD bench of Justice Naima Haider and Justice Kazi Zinat Hoque delivered the verdict. BLAST referred to the World Health Organization and UNICEF statistics that about 77 percent of the CS that took place in Bangladesh in 2018 were unnecessary. CS is also reported to have increased by 51 percent in 2016–2018. Hospitals urge the families of expectant mothers to go for CS to increase their income unethically.  

The court stated that the guideline formulated by the health ministry in November 2019 under the title “Bangladesh National Guidelines and Technical Standards and Operating Procedure for Promotion of Normal Vaginal Delivery (NVD), Prevention of Unnecessary Cesarean Section, Creating Awareness about Necessity and Justification of Cesarean Section” has become a part of its judgement.

The guideline has recommended developing and launching a national campaign to raise awareness of the harmful effects of unnecessary CS and the importance of necessary CS. It also emphasized engaging appropriate communication channels like print, electronic, and social media and disseminating communication materials such as videos, leaflets, brochures etc. 

It suggested enhancing NVD skills and competencies of delivery care practitioners and reviewing the existing laws to identify shortcomings and propose modifications to ensure the rights of patients, care seekers, and health care providers. The posting of certified midwives and maintaining a functional standard labour room should be made mandatory for private hospitals/clinics intending to provide delivery care.

The guideline also suggested reviewing and expanding the mandate and capacity of the Bangladesh Medical and Dental Council (BMDC) and Bangladesh Nursing Council (BNC) to ensure effective solutions relating to grievance complaints. 

Petitioner’s lawyer Barrister Rashna Imam said that all the authorities concerned of the health ministry, directorate of health services, BMDC, hospitals and doctors are bound to follow the guidelines. If it is properly followed, the unnecessary CS will be reduced. Deputy Attorney General Amit Das Gupta considered the HCD judgement as another step to empower women.

Comment: According to a key indicator report of the Bangladesh Health and Demographic Survey (BDHS), the number of CS performed in Bangladesh was 45 percent in 2022 which was much greater than the number in the previous two years. A World Health Organization report opined the acceptable CS delivery rate is 10–15%, and more than 15% rates are considered medically unjustified. 

Regardless of the mother’s physical condition and the position of the fetus, physicians mostly from private hospitals recommend cesarean operations. Unnecessary CS increases the medical cost and can cause life risks to both the mother and the fetus. 

Unborn children are the future of the country. It is a sacred duty of the state and other citizens to provide them with a safe and healthy upbringing and to ensure that it is important to restrict the profit-making tendency of physicians and hospitals by proper implications of national rules, laws and guidelines. 

The HCD commuted seven militants’ death sentences to life imprisonment in Holey Artisan attack case

The HCD on 30 October 2023, commuted the death sentences of seven jailed militants in the Holey Artisan attack case to imprisonment till death and acquitted one accused.

HCD bench of Justice Sahidul Karim and Justice Mohammad Mostafizur Rahman announced the verdict after rejecting separate appeals filed by the convicts challenging the lower court verdict. The following seven convicts are Jahangir Hossain, Aslam Hossain Rash, Hadisur Rahman, Rakibul Hasan Regan, Abdus Sabur Khan, Shariful Islam Khaled, and Mamunur Rashid Ripon. 

On 1 July 2016, a group of five militants armed with pistols, submachine guns and sharp weapons stormed into the Holey Artisan Bakery restaurant in Gulshan, Dhaka. They killed 20 people, including 17 foreign nationals inside and two policemen outside the cafe during the hostage situation. The five militants were killed by army commandos during subsequent rescue operations. On 27 November 2019, an Anti-Terrorism Special Tribunal in Dhaka sentenced these seven convicts of the banned Jamaat-ul-Mujahideen Bangladesh to death and fined them Tk. 50,000 each for their association with the Holey Artisan Attack. 

The prosecution and defence lawyers said the HCD reduced the punishment detecting the tribunal’s incorrect application of a section of the Anti-Terrorism Act, 2009 to hand down death penalties to the convicts. Defence counsel, Amimul Ehsan Zubayer told the tribunal that the punishment is supposed to be applied against the offenders directly involved in the offence. The charges pressed against them were provoking and abetting those who directly took part in the cafe attack. He added that the highest punishment for the crimes punishable under this particular law is life sentence. 

Deputy Attorney General Bashir Ahmed said that failing to understand a subsection of the Anti-Terrorism Act, the tribunal gave death sentences to the convicts, and that’s why the HCD changed it.

Comment: The Holey Artisan Cafe case is one of the most brutal and renowned militant attack cases in Bangladesh. It had a huge impact on the world community as well. However, every citizen of Bangladesh is equal in the eyes of law as per Article 27 of the Constitution of the People’s Republic of Bangladesh. No one should be punished more than he deserves.

The Appellate Court played an important role in ensuring the ends of justice through the implication of due process of law. As a superior court, HCD corrected the erroneous application of law by the lower court.

HCD dismisses an appeal on Ishtiaque Hossain Jhonny’s custodial death case. 

On 19 October 2023, HCD upheld a trial court verdict that sentenced a police informant named Suman to seven years imprisonment in the 2014 case filed for the custodial death of Ishtiaque Hossain Jonny, a garment-waste trader from Mirpur. 

The HCD bench of Justice SM Kuddus Zaman and Justice Shahed Nuruddin dismissed an appeal filed by the convict Suman challenging the lower court verdict, on the ground that he did not deposit the fine and compensation to the state treasury as per the court order. However, the bench said it would restore Suman’s appeal if he deposited the money.

On 8 February 2014, The five individuals namely the deceased Md Jhonny (25), his brother Md Rocky (22), Md Faisal (20), Mainnul Islam Rajan (24), and Sharif Ahmed Titu (26) were picked up around 3am following a clash over the harassment of some girls at a wedding ceremony at Irani Camp between two groups of people of Irani Camp and Rahmat Camp in Pallabi. Around 10:30 am, Johnny died at Dhaka Medical College and Hospital (DMCH) after seven hours of his arrest. 

The death of Jonny in police custody after torture sparked outrage and led to the country’s sole case filed under the Torture and Custodial Death (Prevention) Act, 2013. Dhaka Metropolitan Sessions Judge KM Emrul Kayes jailed three police officers — then Pallabi police station sub-inspector Zahidur Rahman Khan and assistant sub-inspectors Kamruzzaman Mintu and Rashedul Hasan for life imprisonment and two police informers including convict Suman for seven years for the killing of the youth. The court also fined the three police officers Tk. 1 lakh each while asking them to compensate the family with Tk. 2 lakh each under Section 15(2) of the Act.

Comment:  The HCD dismissed the appeal on the procedural ground which can be resolved by submitting the compensation amount. The deceased family had gone through a long legal battle for justice and after the convictions of the convicts, it is important to ensure their appropriate punishments. 

Jhonny’s Custodial Death Case is the very first case filed under the landmark legislation of Torture and Custodial Death (Prevention) Act, 2013. This law is drafted to hold overzealous officials accountable for their abuse of power. As a member of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), Bangladesh had the obligation to recognize all acts of torture as crimes in their criminal laws and ensure adequate punishment.

It is a fundamental right of every citizen to be free from torture. Any form of torture or unlawful punishment that violates human life and personal liberty is a violation of fundamental human rights. Articles 31, 32, and 35(5) of the Constitution of the People’s Republic of Bangladesh guarantee the right to life and liberty and the right of citizens to be free from torture or cruel, inhuman, or degrading punishment or similar punishment.