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Judicial Developments on Fundamental Rights


Sara Hossain and Adeeba Aziz Khan *

Introduction

This chapter reviews leading judgments and orders of both the High Court and Appellate Divisions of the Supreme Court. It discusses judgments reported in 2006 but decided earlier, as well as those delivered in 2006 but not yet reported. It focuses on judgments on fundamental rights, considering in turn those on the rights to equality and non-discrimination, life, liberty and security, safeguards on arrest and detention, fair trial, and freedom of expression. It also briefly considers judgments regarding institutional reform, in respect of separation of the judiciary, and appointments to the Anti Corruption Commission and the Caretaker Government. Finally, given the importance accorded to these issues during the course of the year, it considers judgments relevant to the process of parliamentary elections.1

Fundamental Rights

Right to Equality/Non-Discrimination

On 19 July 2006, the Appellate Division dismissed two petitions brought by a combine of women’s rights’ organizations seeking leave to appeal against a 2005 High Court judgment which had upheld the law providing for women to be elected indirectly to 45 reserved seats in the National Parliament.2 The women’s organisations, while supporting the establishment of reserved seats in the National Parliament, had argued that the provision for indirect election to these seats would prevent those holding such posts from acting independently to represent women or to secure their interests, and ensure that they only served as a vote bank for their respective parties .

Right to Life

The High Court interpreted the right to life expansively, addressing within its ambit direct violations by state actors, such as extra-judicial killings by the police or security forces, or forced evictions by other government bodies, as well as the failure of state authorities to comply with their statutory duties in respect, of among others, protection of the environment and occupational health and safety laws.

Extra-Judicial Deaths : On 9 April 2006, the High Court directed the Government to show cause as to why the open firing by police on protestors in Kansat should not be declared to be without any lawful authority and why the authorities should not be directed to pay compensation to the bereaved families, and further to show cause as to why a minimum supply of electricity should not be provided to the people of the area.3 The Court also issued an interim direction upon the Government not to arrest any member of the Polli Bidyut Shongram Committee (PBSC) except in accordance with law.

These orders were made in a public interest litigation filed by ZI Khan Panna, the Chairman of the Bar Council’s Legal Aid and Human Rights Committee, in relation to two separate incidents of firing upon the Kansat protestors. First, on 4 January 2006, during a peaceful protest in Kansat by the PBSC, an organization of local electricity users demanding an adequate and uninterrupted supply of electricity to the area, the police opened fire without any warning, killing two persons. Then, on 23 January 2006, another eight individuals were killed when the police opened fire upon the demonstrators in Kansat to protest the arrest of three PBSC leaders; the police also allegedly forcibly entered homes and indiscriminately beat the residents. Later, on 6 April 2006, four more persons were killed in a bomb attack while protesting the previous killings. 4

The High Court also gave orders in respect of continuing reports of extra-judicial killings by the security forces, in particular the Rapid Action Battalion (RAB). In a public interest petition filed by an NGO, Human Rights and Peace for Bangladesh (HRPB), the High Court on 6 August 2006 directed the Government and RAB to show cause within two weeks why they should not be directed to ensure the safety and security of the persons detained in RAB’s custody.5

Forced Evictions : The High Court provided protection to slum dwellers against arbitrary orders and actions for their forced eviction. Thus, on 25 June 2006, it stayed the operation of an order6 passed by the Housing Ministry purporting to deploy 250 police to carry out evictions in Kallyanpur Bosti , Mirpur, Dhaka, despite the pendency of earlier orders of stay.7 The Government then filed an application for vacating the order of stay but this was rejected by the Court on 24 July 2006, as nobody appeared on behalf of the applicant. Notwithstanding the stay order, the police continued to threaten the slum dwellers to leave the area or face forcible eviction.

Workplace Deaths : The High Court continued to seek responses from the Government regarding the enforcement of construction safety laws, in further orders made in a writ petition filed regarding the collapse of the factory building of Spectrum Sweater Industries, in Savar, Dhaka, which had resulted in the deaths of 71 workers.8 On 19 April 2006, the High Court directed the Deputy Commissioner of Dhaka, the Chief Inspector of Factories, RAJUK and the Chief Executive Officer of Savar Cantonment to submit reports within two weeks related to the legality of the construction of the building, ownership of land and safety condition of the building; although no such report was submitted by Government agencies, the BGMEA submitted a report prepared by engineers.

In an unprecedented step, the High Court directed the Chairman of Phoenix Garments to pay a total of Taka twelve million (amounting to Taka 300,000 for each of the bereaved families, Taka 200,000 for each of the critically injured survivors, and Taka 50,000 for those who sustained minor injuries) to the victims of the collapse of the Company’s building at Tejgaon Dhaka. Upon depositing this entire sum with the Chief Metropolitan Magistrate, Jalal Ahmed, the Chairman was then given bail.9

Failure to Protect the Environment : The High Court continued to develop its fairly well established case law extending the right to life to ensure environmental protection . In 2006, the High Court directed RAJUK not to fill the Gulshan Lake area, to maintain it in a prescribed manner, to cancel the allocation of the plot created through such earth filling, and to create no further plots, in a 1997 writ petition filed by Shirin Shila, a Gulshan resident.

In another case, on 25 May 2006, the High Court directed the Department of Environment and the Savar Export Processing Zone Authority to show cause as to why it should not be declared that they had failed to discharge their statutory and constitutional duties of preventing pollution in the water bodies in Savar, 10 and ensuring that adequate waste treatment devices are installed in industrial units in and surrounding the Savar EPZ area including certain named industries as required under the Environment Conservation Act, 1995 and the Rules of 1997. The Court also issued an injunction upon the concerned companies directing them to cease any further release of toxic substances.

Right to Fair Trial

The High Court, in its criminal jurisdiction, made a number of important orders relating to the issue of speedy trial, and to trial by an impartial court.11

Delays in Trial : During 2006, the High Court received a report submitted by the Government, containing a list of a total of 472 prisoners languishing in jails after their sentences had expired.12 This report was submitted pursuant to the High Court’s order made in a writ petition filed in 2005 by ASK.

Right to Freedom from Torture and Cruel and Degrading Treatment

Use of Bar Fetters : On 18 October 2006, the High Court gave a judgment upholding the constitutionality of the use of bar fetters on prisoners. ASK’s original writ petition of 1997 had challenged the use of fetters for a continuous period of 33 months (from 1994) on a convicted prisoner, Hafizur Rahman.13 On 26 February 1998, the High Court had issued a Rule Nisi upon the Government to show cause as to why the continued restraint of Hafizur Rahman should not be declared to be violative of his fundamental rights. In its final judgment, discharging the Rule Nisi , more than ten years after the original incident, the High Court stated that the persons in authority who had been responsible for the imposition of bar fetters on Rahman for such a prolonged period should be brought to justice by way of appropriate departmental proceedings. However, it held that applicable laws including Section 56 of the Prisons Act set clear guidelines limiting the application of the provisions on use of bar fetters, and as such their use did not amount to an infringement of the fundamental right to prohibition on cruel and degrading treatment or punishment.14

Right to Freedom of Expression

The constitutional guarantee of the right to freedom of expression, including freedom of the press, is subject to reasonable restrictions imposed in accordance with law, such as existing laws on defamation and contempt of court . This provision has been interpreted in a number of judgments during 2006.

Banning of Publications : In Begum Arjumand Ara Chowdhury v Government of Bangladesh , 15 the High Court held that an order passed in 1998 by the then Government purporting to cancel the declaration of the weekly magazine Evidence was without lawful authority, as no show cause notice had been given to the publisher. The Court laid down an important principle for the future, observing that prior show cause is mandatory wherever any ‘step contemplated to interfere with the right to printing and publication of a weekly magazine is taken’.

Contempt of Court: In Supreme Court v Election Commission,16 the Appellate Division issued a suo motu notice to show cause upon the Election Comission and upon Nurul Islam Moni MP as to why they should not be held in contempt of court. This Rule was issued in the context of a submission made by the EC (in its leave petition against the High Court judgement on the voter list, see below) seeking a full court hearing, which appeared to imply that it did not have full confidence on the Bench of the Appellate Division as constituted. The Court accepted apologies from both of the respondents, noting that “every Judge, specially of a Superior Court, is capable of dealing fairly with all cases and circumstances.”

In another case, Shahudul Haque, IG Police and others v State,17 the Appellate Division dismissed the petitions for leave to appeal by the former Inspector General of Police and a Police Sergeant, Shoaibur Rehman, against a High Court judgment finding them guilty of contempt (in respect of Sergeant Shoaibur Rehaman having abstained from saluting the flag of a Supreme Court Judge, and behaving in a ‘disrespectful manner’ with Justice AHM Shamsul Chowdhury, and the former IGP having submitted a contentious affidavit to the Court in this regard).

Institutional Developments

Separation of the Judiciary

Despite repeated orders by the Appellate Division to the Government directing compliance with the apex court’s historic 1999 judgment of Bangladesh v Masdar Hossain , no major steps were taken to ensure separation of the lower judiciary from the executive during the year. The then Four Party Alliance Government alone asked for 23 adjournments during its tenure. 18 On 5 January 2006, 19 the Appellate Division rejected the Government’s request for more time. Although the matter came up before the Court on several further occasions, no legislative or administrative measures were taken during the course of the year. 20 The Court also issued contempt rules against four top civil servants on 3 April 2006 for failing to comply with the Masdar Hossain judgment, again with little or no result.21

Anti-Corruption Commission

In Aminul Haque v Justice Sultan Hossain Khan,22 the High Court, on 6 March 2006, dismissed a challenge to the appointment of Justice Sultan Hossain Khan as Chairman of the Anti-Corruption Commission (ACC). The petitioner had contended that the office of the ACC Chairman is a post in the service of the republic as the Chairman receives salaries and allowances from the public exchequer and performs functions which are not of a quasi-judicial or judicial nature, and that a person who is a retired judge of the Supreme Court and a retired Chief Election Commissioner is barred from any further appointment in the service of the Republic. The Court, however, held that the Government had no role to play in the selection process, that the President is bound to appoint the Chairman from the list of candidates submitted by the selection committee, and further that the ACC Chairman or Members could only be removed in accordance with the process provided under Article 96 of the Constitution.

Chief Advisor of the Caretaker Government

On 26 November 2006, three writ petitions were filed before the High Court Division, the first challenging the assumption of the office of Chief Advisor by President Professor Iajuddin Ahmed, the second challenging his powers as Chief Advisor to take decisions unilaterally without consultation with the Council of Advisors and the third challenging the declaration of the election schedule to conclude the holding of elections on 21 January 2007, prior to the correction of the electoral rolls.

On 29 November 2006, after hearing both sides, the High Court declared that an order would be passed on 30 November 2006. On that day, the Attorney General of Bangladesh appeared before the Court with an application for the formation of a larger bench for hearing of the case. The Court then declared that an order would be passed after recess. In an extraordinary step, the Attorney General, accompanied by the then Law Minister returned to the court at two pm and produced a document signed by the then Chief Justice in his own hand, which purported to stay the powers of the High Court Division Bench to hear the petitions challenging the actions of President Professor Iajuddin Ahmed.23

Elections

Preparation of Electoral Roll

On 4 January 2006, the High Court gave a judgment directing the Election Commission (EC) to update the voter list based on the existing one, in two separate writ petitions,24 one filed by AL General Secretary Abdul Jalil MP and the other by two AL lawmakers, Advocate Rahmat Ali MP and Asaduzzaman Noor MP. These petitions had challenged the constitutionality of the Electoral Commission’s manner of preparation of the electoral roll (or voters’ list). The issue was whether, in preparation for the ensuing parliamentary election, the EC had the authority to prepare a ‘fresh’ voters’ list separate from the existing list, or, whether it was required to modify the existing list.25 The EC Secretariat, on 6 December 2005, had announced a time table for preparing a fresh voter’s list, with the enumeration to start on 1 January 2006 and publication of the final list on 1 June. Two of the three Election Commissioners, AKM Munsef Ali and Mohammad Ali, however, alleged that they had not approved the preparation of a ‘fresh’ voters’ list. 26

On 23 May 2006, after several hearings, the AD dismissed an appeal by the Chief Election Commissioner against the High Court Judgment. In a separate writ, the High Court then issued a Rule Nisi upon the Chief Election Commissioner MA Aziz, Election Commissioners Justice Mahfuzur Rahman and SM Zakaria and Secretary of the Commission Secretariat Mohammad Jokoria to explain within three weeks why contempt of court proceedings should not be drawn against them for violating its judgment in preparing the electoral roll. The EC claimed that as the certified copy of the Appellate Division had not reached the Election Commission until 7 June, it had stopped preparation of the controversial fresh voters’ list.27

Disclosure of Candidate’s Assets

In, Abu Safa v Election Commission , the Appellate Division, on 6 April 2006, granted leave to appeal against a High Court judgment of May 2005 (Abdul Momen Chowdhury v Election Commission) holding that the Election Commission may direct candidates for Parliamentary elections to submit personal information regarding their academic qualifications, any criminal charges, sources of income and description of assets and liability. The Appellate Division granted leave on the ground that the direction on candidates for mandatory disclosure of information would amount to discrimination and to a violation of Article 66 of the Constitution, especially as information on academic qualifications may be sought. The pleadings in this case stated that Abu Safa had bought a nomination form and intended to stand as a parliamentary candidate having contributed greatly to his locality. The print media widely reported that there appeared to be no basis to these claims. Further, Abu Safa had not been a party to the original writ, and could not be said to be an interested person with a track record of engagement in such issues, so as to bring him within the category of those entitled to bring a public interest litigation. On 19 December 2006, days before the closing of nominations for the then scheduled Parliamentary Elections, Justice Md. Joynul Abedin, Chamber Judge of the Appellate Division, stayed the judgment of the High Court, effectively ensuring that parliamentary candidates would not be required to disclose personal information regarding their assets, educational or other background.

Notes

* Sara Hossain is a barrister practicing in the Supreme Court of Bangladesh. Adeeba Aziz Khan, a barrister, was a pupil at the law firm of Dr Kamal Hossain and Associates in 2006.

1. With a few exceptions, this chapter does not discuss judgments in civil and criminal cases despite their also having significant rights implications (eg criminal cases related to the right to fair trial).
2. The High Court judgment of 2005 is reported at Farida Akhter and others v Bangladesh , 11 MLR (2006) 237. See ASK, Human Rights in Bangladesh , 2005, for discussion on the three writ petitions filed in 2004 by women’s rights activists and organizations challenging the constitutionality of Sections 3 and 8 of the Fourteenth Amendment Act amending Article 65(3) of the Constitution, and adding a new paragraph 23 in the Fourth Schedule of the Constitution providing for reservations for women of 45 seats in Parliament exclusively for women, to be elected by Members of Parliament.
3. Writ Petition No. 3176 of 2006. The High Court Bench was presided over by Justice MA Matin.
4. See Chapter 3, p.36 - 37, Chapter 5, p. 62 - 63.
5. New Age, 7 August 2006. The High Court Bench was presided over by Justice Dastagir Husain.
6. The decision was transmitted under Memo No. shakha-5/bibidh-1/2005 of 19 June 2006 issued by the Senior Assistant Secretary, Ministry of Housing and Public Works.
7. The order was passed by a High Court Bench comprising of Justice Nazrul Islam Chowdhury and Justice Zubayer Ahmed Chowdhury in ASK and others v Government and others , Writ Petition No. 7585 of 2003.
8. Md Kamal Hossain v Bangladesh , Writ Petition No. 3566 of 2005: see discussion in ASK Human Rights in Bangladesh 2005 , at p 48.
9. The Daily Star , 25 April, 2006. According to media reports, families of twelve of the bereaved persons, and 23 of those injured actually received compensation totaling Taka 5,550,000.0 on 24 April 2006. Later reports, however, indicated that payment was abruptly stopped on 26 April, following confusion over the list of the victims and their families.
10. Bangladesh Legal Aid and Services Trust (BLAST), Bangladesh and others , Writ Petition No. 5007 of 2006; the High Court Bench comprised of Justice Md. Awlad Ali and Justice Zinat Ara. The respondents included the Secretary of the Ministry of Industry and Commerce, and the Ministry of Environment and Forests, the Director General, Department of Environment, the Director, Department of Environment, the Bangladesh Export Processing Zone Authority (BEPZA), the Executive Director, Saver Export Processing Zone (SEPZ) as well as certain private companies, namely the East West Suiting Mills Ltd, Ganashastha Anti-Biotic Ltd., Hydra Accessories Industries Ltd., Monno Group of Industries and Kamal Textiles.
11. For example, in Mahfuz Anam v State 58 DLR (2006) 60, (a defamation case against the publisher of the daily Prothom Alo), the High Court transferred the case from a trial Court in Magura to Dhaka on the ground that pressure from the complainant, a local leader of the then ruling party, upon the local administration and magistracy would hamper a fair and impartial trial, and also endanger the accused’s security.
12. ASK v Bangladesh and others , Writ Petition No. 8216 of 2005.
13. ASK v Bangladesh , Writ Petition No. 2852 of 1997.
14. ASK v Bangladesh , Writ Petition No. 2852 of 1997, per Justice Nazrul Islam Chowdhury and Justice Md. Rezaul Haque.
15. Judgment dated 13 July 2005, reported at 11 MLR (HC) (2006) 153 . On behalf of Evidence , it was claimed that the magazine had faced various forms of harassment, such as surveillance by Government intelligence agencies, physical attacks on the publisher’s office by the police (in September 1999) and demolition of the office building by RAJUK. When in November 1999 the publisher submitted an application notifying the Government of the magazine’s change of address and seeking approval, he instead received in response an order canceling the magazine’s declaration.
16. 58 DLR (AD) (2006) 146.
17. 58 DLR (AD) (2006) 150.
18. In an open letter to the UN Human Rights Council by the Asian Human Rights Commission, 3 August 2006, http://www. ahrchk.net/ statements/ mainfile. php/ 2006 statements/ 668/).
19. AHRC report, Bangladesh: The Human Rights Situation in 2006.
20. Finally, on 10 January 2007 the full bench of the Appellate Division, presided by Chief Justice Syed JR Mudassir Hossain, ordered the Government to announce formally within seven days that it would comply with the Masdar Hossain verdict: AHRC press release, Hong Kong, 11 January, 2007 http://www.ahrchk.net/pr/mainfile.php/2007mr/427/. During 2007, the Caretaker Government finally adopted the relevant Rules, and began to take administrative measures for implementation of the judgment.
21. Prothom alo, The Daily Star , 4 April, 2006.
22. 11 BLC (2006) 339.
23. Following this order, lawyers for the petitioners and others proceeded to the Chief Justice’s room to clarify the situation, while the former Law Minister, Moudud Ahmed, fled the premises and violence broke out within the Court premises. Within the next few days, ruling party supporters, including lawyers, MPs and law officers then serving in the AG’s office, held continuous protests insisting that the petitioners’ lawyers be prosecuted, and a meeting was held in the Chief Justice’s residence. The then ruling coalition also held meetings, addressed by Ministers and others making similar claims. Within days of such protests two cases were filed, one by the Court Keeper, apparently on the authority of the Court itself, and another by a lawyer, Omar Sadat, accusing the then Vice Chairman of the Bar Council, by name, of having committed such violence in the Supreme Court. Ultimately, following orders by the Chief Metropolitan Magistrate, the police filed chargesheets accusing some of the most eminent lawyers in the country, among others, of sedition among other offences. To date there has been no official inquiry into any of these incidents, including how a meeting of judges was convened or held at the Chief Justice’s house, how a ‘resolution’ was passed at this meeting, who authorized the Court Keeper to file his case, and the nexus, if any, between those insisting on these prosecutions, those involved in the violence, and those who filed the complaints.
24. MA Jalil v Bangladesh ; and Advocate Rahmat Ali and another v Bangladesh , respectively, Writ Petitions Nos. 9180 of 2005 and 9157 of 2005.
25. The High Court by a judgment dated January 2006 disposed of both writ petitions with some observations regarding the manner of preparation of the voter lists but asserting that the existing voter list would have to be used and that no-one could be omitted whose name was on it, unless they had in the meantime died, become mentally incompetent or moved residence; ultimately in May 2006, the Appellate Division of the High Court upheld the High Court’s judgment and directions, with some modifications (Civil Appeal Nos. 54 and 55 of 2006).
26. The Daily Star , 7 December, 2005.
27. “ SC asks EC to update current voter roll - CEC’s appeal turned down; HC issues contempt rule against Aziz ”, The Daily Star, 24 May, 2006.