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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.

This edition of ‘From the Court Corridor’ curates the notable pronouncements of the Appellate Division (AD) and High Court Division (HCD) of the Supreme Court (SC) of Bangladesh in May 2022.

Declaring the Hatirjheel-Begunbari project in the capital a public trust

On September 9 2018, Human Rights and Peace for Bangladesh (HRPB) filed a writ petition as public interest litigation to HCD challenging the legality of the construction work in the Hatirjheel-Begunbari project.

The housing and public works secretary, chief executive officer of Dhaka South City Corporation, the Rajdhani Unnayan Kartripakkha (Rajuk) chairman, the Dhaka Metropolitan Police (DMP) commissioner, the officer-in-charge of Hatirjheel Police Station, and the project director of Hatirjheel-Begunbari project were made respondents to the writ petition.

After hearing the petition, the High Court bench of Justice Md Ashraful Kamal and Justice Rajik Al Jalil declared a short verdict disposing of a rule in this regard on 30 June 2021. The same court released the full-text verdict on 24 May 2022.

In this full-text verdict, the HCD has issued four directives and nine recommendations to protect its original character, beauty and water.

The HCD declared the allocation and construction of commercial establishments, including hotels, restaurants, and shops, in the project area illegal and has asked the authorities to remove all such establishments from the project area within 60 days from receiving the verdict.

The judges have advised the formation of a “Hatirjheel Lake Protection, Development and Management Authority” under the direct supervision of the Prime Minister’s Office (PMO) to properly operate the Hatirjheel-Begunbari Project.

The court has recommended appointing engineers from BUET and the 24th Engineering Construction Brigade of the Bangladesh Army as permanent consultants for the project.

The court also directed to close the current water taxi services and vehicles that are harmful to the water and asked RAJUK to implement the orders. Setting up international standard toilets underground, arranging portable water without any cost, constructing walkways and separate lanes for bicycles and physically challenged people, making the lake a sanctuary for the fish, and allocating money from the revenue budget for protection, development and operation of the whole project are some of the suggestions provided by the honorable judges.

Public trust is a concept that the sovereign holds some resources in trust for the public beneficiary. The HCD in some earlier judgments gave the river the status of a living entity which is to be protected by the state as a “public trust”. Bangladesh is a land of waterbodies. In order to protect the dying water bodies surrounding Dhaka city, this is a laudable judgment.

Directing UGC to submit a report on the total number of underprivileged meritorious students attending private universities in the last 12 years

The HCD, in response to a writ petition filed by the Consumer Association of Bangladesh, directed the University Grants Commission to submit a report within 60 days on how many underprivileged, meritorious children and children of freedom fighters admitted under free education facilities to the 105 private universities since 2010. The HCD also asked to submit a report regarding the allocation of funds in research to private universities over the past 12 years.

An HCD bench of Justice Md Mozibur Rahman Miah and Justice Khizir Hayat issued the rule asking the authorities concerned to explain within 4 weeks why their inaction to implement free education for 6% of children from underprivileged families, meritorious students and freedom fighters’ children as provided in the Private University Act, 2010 should not be declared illegal.

The government enacted the Private University Act 2010 with a view to providing a legal framework for the establishment of private universities. According to Section 9 of the Act, every private university shall provide the opportunity to 3 percent of underprivileged yet meritorious students and 3 percent of students who are children of freedom fighters, to study without any fees. To our dismay, the private universities are not reserving 6% of seats for the freedom fighter’s children and meritorious students.

As per Section 9 (6) of the Act, private universities are required to keep a certain portion of the UGC allocation for research. But, in reality, the universities are not complying with the provisions. Thus, the rule by the HCD is a leap towards making them accountable for non-compliance with legal provisions.

Ordering to identify persons as well as institutions responsible for financial scams and money laundering through e-commerce platforms

The HCD bench of justice Md Mozibur Rahman Miah and Justice Khizir Hayat gave the order following three separate writ petitions filed in HCD by three supreme court lawyers and aggrieved customers seeking necessary directives on the issue.

Lawyer Shishir Manir filed a petition in September last year on behalf of 33 consumers of the e-commerce platform. Later, Md Anwarul Islam and Humayun Kabir Pallob, filed two other writ petitions as public interest litigations seeking directives over the e-commerce scams.

Concerned authorities, including Secretaries to the ministries of commerce, finance, information and home, Bangladesh Bank’s governor, BFIU, Bangladesh Competition Commission and Directorate of National Consumers Rights Protection were made respondents.

HCD issued the order following a compliance report of BFIU that indicates evidence of money laundering, fraudulence and suspicious transactions by 8 e-commerce platforms.

In the order, HCD asked the concerned authorities to find out persons and companies whose actions caused severe financial damage to customers of e-commerce sites to take necessary actions.

The HCD issued a rule asking the respondents to explain within 4 weeks why their inaction and failure to prevent the financial scams of the e-commerce platforms and protect the consumers rights should not be directed illegal and why necessary legal action should not be taken against the defaulters. The court also questioned why they should not be directed to compensate the customers whose money was misappropriated. The HCD asked why the respondents shouldn’t be directed to form an independent regulatory body to oversee the functions of the companies and protect the interests of the customers.

With the advancement of society fraudulence and financial scams have increased. In this era of digitalization, e-commerce is one of the most profitable and vital platforms that has added another dimension to this issue. Many online platforms take money from the customers in advance and don’t supply the product in due time. These e-commerce platforms can transact the customers’ money to different sectors or to their personal or business accounts violating the rights of consumers protected under the Consumers Rights Protection Act 2009. This order is a commendable step towards the protection of consumers from financial scams of e-commerce platforms.

Rejecting anticipatory bail plea of four North South University Trustees for embezzling Tk 303.82 crore

In May 2022, the Anti-Corruption Commission (ACC) filed the case against 4 NSU trustees for embezzling money in course of purchasing land for the university and in the name of campus development with the consent of a few members of the Board of Trustees, without informing the University Syndicate, the University Grants Commission, and the Ministry of Education. Including the four members of the Board of Trustees, the chairman of the board, and the managing director of Ashaloy Housing and Developers Limited, were also charged in the case. The HCD ordered the police to arrest and produce them before the trial court within 24 hours.

According to the Private University Act 2010, the board of trustees is the highest governing body in any private university and undoubtedly should be accountable if their actions violate the law.