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From the Court Corridor: September 2022

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 September 2022

AD stays HCD verdict regarding taking prior permission before arresting government officials

On 25 August 2022, following a writ petition by Human Rights and Peace for Bangladesh challenging the legality of Section 41(1) of the Government Service Act, 2018, an HCD bench gave a verdict declaring the provision as unconstitutional.

According to the HCD bench – consisting of Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo – Section 41(1) of the Government Service Act, 2018 creates scope for sheer discrimination and indemnifies corrupt government officials. Moreover, this Section was held to be violative of Articles 26, 27, and 31 of the Constitution of Bangladesh. Furthermore, as there has been no mention of what will happen if permission is not taken before the investigation, it was held to be an incomplete section.

The HCD bench stated that, ‘[i]n our country, it’s a common practice that investigation of a criminal case takes a long time. If this provision remains in place, there will be no ending to criminal cases against public servants.’

However, on 1 September 2022 the full bench of the AD headed by the Chief Justice Hasan Foez Siddique stayed the HCD verdict and adjourned the court until 23 October 2022.

Attorney General AM Amin Uddin representing the State opined that in our country a lot of false criminal cases are filed. If a false criminal case is filed against government officials, even if they are acquitted later, it tarnishes their image beyond repair. That is why this provision is needed to protect the government officials from such hassle.

We know that the constitution is the supreme law of the State in Bangladesh. Any law that violates any of the fundamental rights mentioned in Part III of the Constitution is unconstitutional and void ab initio under Article 26. Moreover, Article 7(2) upholds constitutional supremacy by vitiating any law that violates any provision of the Constitution. It is evident that Section 41(1) of Government Service Act, 2018 gives priority to government officials by making it extremely difficult to arrest them. Because if permission is to be sought every time for arresting any public official, it will not only increase the overall length of every such legal proceeding but also make it almost impossible to actually arrest them. On the other hand, it is also true that without this protection, government officials in our political culture will inevitably be subjected to harassment and defamation. Hence, a balance is very crucial in this regard. The AD tried to meet this balance by not striking down the aforementioned section. Only time will tell how well the balance is actually achieved through this provision.

AD declares that ACC can seek wealth information multiple times

The AD on 7 September 2022 overturned an order that had given direction to the Anti Corruption Commission (ACC) to take action against its officials for repeatedly asking for wealth information from people.

The former order was given on 24 November 2016 by an HCD bench led by Justice SK Sinha. In the HCD order, ACC chairman was ordered to take legal action against its employees for repeatedly asking for wealth information as it might amount to harassing those individuals.

The bench of the AD led by Chief Justice Hasan Foez Siddique quashed the former order and made way for ACC to issue multiple notices. The bench opined that six years ago, the HCD bench had made an error in reaching the decision by not carefully taking into account all relevant laws and rules. Because, Section 19 of the Anti-Corruption Commission Act, 2004 gives the Commission power to do anything to carry out its purpose. Hence, serving multiple notices cannot be deemed to be mala fide or harassing the individuals.

Bangladesh is the second-most corruption riddled country in South Asia according to the 2021 TIB report. ACC, which is fighting to prevent corruption in the country, should be given the power to meet its objectives as long as it does not directly violate any fundamental right or provision of the Constitution. Giving too broad restrictions on its powers will cripple the institution making its functions even harder. It is very much possible that ACC might need to send multiple notices to people to get their attention. Imposing a restriction in this regard, will make the job of ACC harder. Hence, the AD’s decision can be considered as a timely move.

Audit report submitted by the out-going board of Evaly in compliance with the HCD order.

An HCD order required the board of directors of Evaly appointed by this Court to submit an audit report by 25 September 2022 and to include former Chairman of Evaly Shamima Nasreen, her mother and her brother-in-law in the board. The out-going board, in compliance with the order, had submitted the report on 21 September 2022 as well as given their resignation to the Court.

The audit report prepared by the HCD-appointed five-member board reveals that Evaly was established fraudulently and for mala fide intention. The exact amount of embezzlement money and fraud could not be calculated by the board as there was no proper account, document or statement in this regard. However, this board found the operation of Evaly similar to that of a Ponzi scheme. Moreover, according to the board, there was definitely fraudulent intention involved in forming and running Evaly.

In recent times, there has been a rise of malicious and shady online schemes like Evaly and Destiny in Bangladesh. Millions of people have lost their entire earnings and assets by relying on such unstable and fraudulent economic ventures. The HCD order to prepare the audit report by the five-member board of directors is a timely move.

However, ordering to include the former Chairman and her relatives as board of directors has both positive and negative implications. Since, the former chairman knows the business better than anybody else, she can play a huge role in returning everyone’s money. On the other hand, many are perceiving this move with skepticism and concern. However, with proper monitoring by the concerned authorities, the newly formed board can possibly alleviate the situation of the company and compensate its customers.

Writ petition filed challenging the legality of Detailed Area Plan
A writ petition was filed on 11 September 2022 by Advocate Md Eunus Ali Akond asked the Court to declare that the gazette notification over the Detailed Area Plan (DAP) published on 22 August 2022 as unlawful and sought to revive the DAP of 2010.

According to the gazette notification, the new DAP of 1528 square kilometers under Rajdhani Unnayan Kartripakkha (RAJUK) will be effective until 2035. The notification says that the draft DAP was published in 2020 and was made open to suggestions and objections. The respondents of the writ were the Secretary of the President’s Office, the Secretary of the Prime Minister’s Office, the Secretary of the Ministry of Public Works and the Chairman of RAJUK.

The petitioner argues that the approval of the DAP and gazette notification in that effect has violated Town Improvement Act, 1973, Water Bodies Protection Act, 2000, and Acquisition and Requisition of Immovable Property Act, 2017. According to the petitioner, the government does not have the power to change its water bodies. However, with the approval of DAP, it has violated that statutory obligation.

Any law that is enacted in Bangladesh has to be in harmony with all existing laws. If it is found that provisions of different laws are in contradiction to each other, it will create massive confusions and scopes for miscarriage of justice. That is why, as much as possible, a harmonious interpretation needs to be sought. However, if it is found that striking out a particular provision is absolutely necessary then that needs to be done for the sake of reducing confusion amongst the mass. As such, the questions asked by the writ petitioner should be carefully analyzed by the HCD.