Ineffective Legal Provisions to Prevent Child Marriage in Bangladesh

Recently Bangladesh has become the fourth worst underage-marriage country around the globe which demolishes other successes of Bangladesh in ensuring reduction of child and maternal mortality rate, women empowerment, health and education. A new report released by Save the Children on the occasion of the International Day of the Girl Child showed that one girl under fifteen is married every seven seconds. Nevertheless, child marriage is regarded not only as fundamental violation of human rights but also threat to child health and education. However, Bangladesh has an enactment namely the Child Marriage Restraint Act, 1929 to combat early marriage since British colonial regime.

According to the mentioned Act, the minimum ages of marriage for male and female are twenty one and eighteen respectively and person below this age would be treated as child for the purpose of marriage. Accordingly, the legislature defines child marriage as a marriage where one of the contracting parties is a child.
However, in considering age, there are contradiction between Islamic Sharia law and present statutory law. The sharia declared a person as child before s/he attains puberty naturally. Hence, there is scope of misunderstanding as a person after becoming adult under the sharia may still be regarded as child under the domestic law. In addition, sharia allows child marriage in certain situations though children are incapable of giving their consent to contract a marriage. In that case, their guardian i.e. father, grandfather, brother or uncle can give consent on behalf of them. Nevertheless, in such a case of child marriage solemnised under the sharia law, the minor will get an option to validate the marriage or not after attaining her age of puberty.
In accordance with the Children Act, 2013 and the Majority Act, 1875 age of majority is 18 whether male or female. Hence, the Child Marriage Restraint Act, 1929 should term 21 and 18 as marriageable age instead of marking them as age of majority. Furthermore, the minimum age limit for marriage is not equal under the current law while our Constitution guaranteed equality before law irrespective of race, sex, gender, colour, religion or birth of place. In Morocco, the age limit is 18 for both bride and bridegroom.
However, the aim of the Child Marriage Restraint Act, 1929 is to restraint solemnisation of child marriage; not to invalidate the underage marriage. Hence, a marriage constituted in contravention of the provision of the mentioned law is not only illegitimate rather a merely punishable act which may extend to one month simple imprisonment or with highest fine of one thousand taka or with both. Additionally, the person who performs, directs or conducts any underage marriage and whoever have the charge of that child whether as parent or guardian or in any other lawful or unlawful capacity or does any act to promote child marriage or permits to solemnise it or even if negligently fails to prevent it, will be punished as above.
Interestingly, only adult contracting party will be punished for this offence. For example, if a 20-year old bridegroom marries a 19 years old bride, then the bride will be punished as she attains the age of majority and the bridegroom is still a child in the eye of law. However, this law makes special provision for women to exempt them from punishment with imprisonment for infringement of this Act. However, under the law the court can issue an injunction against any person involved in any of the activity of arranging child marriage to prevent such marriage.
The ministry of women and children affairs had drafted a new law to prevent underage-marriage in a more succinct way and proposed more grievous punishment than the present law. Initially the draft bill recommended to reduce the minimum age of marriage for female to 16 years. However, later the government decided to retain it at 18 after facing massive volley of criticism, but with parental or court consent this can be lowered to 16. The government must reconsider the minimum age of marriage as it has commitment to protect health, education and other interests of children and women under the UN Convention on Child Rights, Convention on Elimination of Discrimination Against Women (CEDAW) and other similar conventions, and other national laws like the Children Act, 2013.
However, despite the existence of present underage-marriage prevention law, a lot of child marriages takes place in the country every day.  In most of the cases, the Nikah registrar (marriage/divorce registrar), the parents and concerned parties are well aware of underage of the bride and evasively hide the fact in the Kabinnama (marriage contract). This is high time to prioritise issues like prevention of child marriage and eradicate this stigma from the society. To remove early marriage from the country the government must take strict steps immediately. The government can direct the Nikah registrars to produce National Identity Card or any other verified valid document or even medical certificate from registered practitioners to validate the age during solemnisation of any marriage.

Published in the Daily Sun as Sub-editorial (P. 6) on 02 Nov. 2016
Published in The Asian Age as Editorial (P. 8) on 08.11.2016.
Published in The Independent's Weekend Magazine on 28.10.2016. 

Medical Negligence: Awake Call for the Concerned to Prevent Squander of Lives

A premature newborn namely Galiba Hayat, declared died by a doctor, was found alive immediately before she was being buried in Faridpur on 22 September! The concerned doctor said it is a miracle that the baby is alive; only Allah knows it!  Recently in an another incident a ward boy of Dhaka Medical College and Hospital (DMCH) killed a patient while gave him wrong treatment. These are glimpses of canvas which portrait the health care sector in Bangladesh. Countless patients are suffering from some sorts of medical negligence everyday in any corner of the country. But it draws media’s attention only when someone died or something bigger happen for mal treatment. However, Bangladesh being one of the world’s most densely populated countries has shortage of physicians. Despite that it earns huge reputation in ensuring maternal health, childcare and reducing infant mortality rate all over the globe. However, the profession is a very delicate and sensitive one. Doctors receive guilt repeatedly, than admire. However, it cannot be denied that lack of accountability increase the incidents gradually. 

Till today we do not have any separate comprehensive enactment to deal with the matter. Albeit the Law Commission of Bangladesh recommended to enact a legislation concerning this issues to save lives, to raise the standard of health services and to make the physicians answerable in 2013. Regrettably, this urgent piece of recommendation is yet to be enacted. Normally, negligence is defined as 'failure to exercise reasonable care and skill' in a particular situation. Medical negligence is also termed as clinical negligence denotes negligent act or omission by the physicians, surgeons, pharmacist, anesthesiologists, nurses, intern-doctors, medical assistants, hospital personnel or any other medical service provider in performing his professional duty towards the patient.

Nevertheless, negligent act in healthcare services is a violation of basic human rights by a professional group who are actually on duty to protect when emergency strikes and the health rights are under threat and also infringement of the rights enshrined under the articles 15, 18, 31 and 32 of Bangladesh Constitution. Basic healthcare facilities are also guaranteed in the United Nations Charter. Articles 55 and 62 relate to the provision regarding health/medical care. Right to basic healthcare facilities are also guaranteed in the Universal Declaration of Human Rights (UDHR).

Medical malpractice is usually seen as an actionable civil wrong, the remedy for which is normally monetary compensation. However, medical malpractice coupled with criminal negligence generally gives rise to a criminal offence and is generally dealt with by the criminal law. It is important for a medical practitioner to remember that negligence involving the risk of injury is punishable criminally, though nobody is actually hurt by it. The mere act of exposing a patient to the risk of personal safety or life is enough to trigger a criminal negligence case. 

Medical negligence is a breach of legal duty to take care owed by one person to another which results in damage being caused to that person. It is gross deviation of a medical professional from accepted level of healthcare. However, to prove the claim, the claimant must show that a) the alleged commission or omission must have a causal relation in order to be qualified as negligence; b) in determining 'negligence' it is to be seen whether in a given situation a person of general prudence would have taken a particular step in that situation c) the plaintiff incurred an injury, loss or harm, d) the damage or harm done to the patient was a direct result of the negligent care and e) even the state of negligence is to be determined in the light of overall consideration i.e. hospital facilities, assistants' and staffs' activities and behavior etc.

However, there is very limited scope under the Penal Code, 1860 to prosecute a medical practitioner for his negligent performance under section 304A punishment of which is highest five years imprisonment. One may bring action under sections 314, 321-326 and 336-338 also. Nevertheless, the exemptions and immunities given for the defense of “good faith doctrine” in sections 88 and 92 of the Penal Code narrowed the scope for criminal action against medical malpractice in Bangladesh. In addition, the Code of Medical Ethics, 1991 touches the matter in a triviality.

Apart from these, sec. 53 of the Consumer Rights Protection Act, 2009 launches another door for the victim to claim compensation for medical negligence because a medical patient is considered as a consumer and the medical institutions or professionals are as service provider under section 2, though it is not expressed stated in the Act. It says if any service provider causes damage to money, health or life of service receiver by negligence, irresponsibility or carelessness, he will be punished with imprisonment for a term not exceeding 3 years, or with fine not exceeding 2,00,000 taka, or both.  However these punishments are not adequate because the amount of fine may be sometimes inconsistent to the loss or injury occurred by the service providers. Another punishment has been provided of endangering life or security of the consumer in Section 52 where it is stated that whoever does any act violating the rules or regulation under this Act or law which can endanger the life or security of the consumer will be punished with imprisonment for a term not exceeding 1 year, or with fine not exceeding 50,000 taka, or both. Aside from providing remedy where there is no other equally efficacious remedy obtainable under the domestic law, judicial review can also offer prospective collective remedy or open the sealed doors of procedural relief. Judicial review, in the form of Public Interest Litigation or in other cases, can provide certain remedy regarding medical negligence.

Moreover, it not only concerned with claim against healthcare professionals but also their employer. Additionally, all the persons allegedly engaged in the process of medical mistreatment or surgical operation including the surgeon, fellow physicians, anesthesiologists, nurses and hospital personnel in any given criminal action shall come within the periphery of the criminal responsibility of the alleged offences committed by them in furtherance of their common intention. Hence in the abovementioned facts are awake call to take action not only against the doctor or the ward boy for the mal practice but also against the whole hospital management for their failure to maintain standard.

However, it is high time to define medical negligence properly with its nature and uniqueness. To do this opinion can be taken from physicians, public health experts and also from citizen representatives. Proper admission process, training and enhancement of skills need to be ensured. Medical ethics should be studied with more importance in the medical curricula. Furthermore, hospital and supporting staffs must be well equipped. Nevertheless, accountable administration in the private and government hospitals would reduce the case of negligence. The co-relationship among doctors, pathologists and diagnostic centers needs to be coordinated. Distinct health court to redress the negligence issue by way of awarding compensation and alternative dispute resolution may be constituted. A separate body may be formed to oversee the quality of medical services and medical education which also can resolve medical dispute initially.

Hospitals are last resort for the patient and they go their with blind trust nurturing in their hearts. Hence, medical professionals must be accountable to ensure highest standard in healthcare. Although we have some scattered laws to protect the rights of ill people, but these are not efficient to handle all the situations. Therefore, the state can offer surety of improvement to the patients in health care delivery system addressing common good of the public health. However, to bring all elements of clinical negligence to heel, the government should give it highest priority and take immediate actions to build a healthy nation. 

Published in the Post Logue page (P. 7) of the Daily Sun on 26.10.2016 

Lifelong Life Imprisonment

Recent time in Bangladesh a question has been arisen whether imprisonment for life denotes imprisonment till natural death or thirty years. On 26 June, the Chief Justice of Bangladesh Surendra Kumar Sinha triggered the debate by saying life sentence literally means imprisonment until one’s natural death while he visited to Kashimpur Jail in Gazipur. However, Section 53 of the Penal Code (PC), 1860; specifies five categories of punishments for offenders i.e. capital punishment; imprisonment for life, which will be rigorous imprisonment; simple or hard labour imprisonment, forfeiture of property and monetary fine. If it determines any definite period then rest kinds of imprisonments can serve the purpose and it would be a redundancy. Nonetheless, the PC inflicts life incarceration as distinct punishment for certain grave nature crimes.

The perplexity mainly arises from the provisions of the PC, the Jail Code and the Code of Criminal Procedure (CrPC), 1898. Section 55 of the PC suggests that the Government may commute punishment for imprisonment for life up to twenty years. That does not mean it is highest 20 years of detention rather it is purely Government’s discretion who can convert it in any period but not exceeding 20 yrs. In addition, Sec. 57 of the mentioned Code further implies that life sentence shall be counted as thirty years of rigorous jail in calculating fractions of terms of imprisonment.

Close scrutiny reveals that this provision is applicable only for the purpose of 'calculating the fractions of terms of punishment'. When does the need for 'calculating the fractions of terms of punishment' occurs? Look at S. 511 of the PC where it is stated that “whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.”  

Furthermore, Section 124A of the PC refers punishment for sedition is imprisonment for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. But if a person is found guilty of an offence of attempt to commit sedition then there is no clear provision of law by which punishment can be imposed. In that case, Section 511 will be applied and punishments have to be imposed by 'calculating the fractions of terms of punishment' according to S. 57. Hence in accordance with this section it has to be assumed that imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for thirty years and after 'calculating the fractions of terms of punishment' i.e. 30 years, the highest punishment for the attempt to commit sedition will be 15 years.

Moreover, S. 65 of the same Code entails that if any offence be punishable with imprisonment as well as fine and if the Court directs the offender to be imprisoned in default of payment of the fine then the term of imprisonment shall not exceed one-fourth of the term of maximum custody fixed for the offence. Again S. 57 will come to resolve the circumstance for a life imprisoned criminal, as we do not know when a person will demise naturally.

            However, the President has prerogative power to pardon anyone under Article 49 of the Constitution of the People’s Republic of Bangladesh and U/S. 402A of the CrPC. Additionally, the Government also has discretionary power even without the consent of the person sentenced to suspend, remit or commute sentence with or without condition U/Ss. 54 and 55 of the PC and U/Ss. 401 and 402 of the CrPC.

In many countries life imprisonment is deemed as a prison term for the convict’s entire life whereas in Mexico Germany, Australia, United Kingdom etc. lifelong incarceration is an indeterminate but after undergoing imprisonment for certain period, parole can be asked for. However, Art. 110 of the Rome Statute of the International Criminal Court (ICC) stipulates for the gravest forms of crimes e.g. war crimes, crimes against humanity and genocide, a prisoner ought to serve two thirds of a fixed sentence, or 25 years in the case of a life sentence. The highest determined prison sentence that can be imposed by the ICC, besides life imprisonment, is 30 years. On the contrary, in the Gopal Vinayak Godse V. The state of Maharashtra and Others, AIR (1961) SC 600 and in many other cases, the Indian Supreme Court observed that “…..unless the sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the CrPC, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison.” On the contrary,

            Our apex court in the Government of the People’s Republic of Bangladesh V. Abdul Quader Molla case promulgated that “A sentence of imprisonment for life must be treated as one of imprisonment for the whole of the remaining period of the convicted person’s natural life. …………Section 57 does not say that imprisonment for life shall be deemed to be imprisonment for thirty years for all purposes nor does it enable to draw any such inference. So, prison authorities are bound to keep the accused persons who are sentenced to imprisonment for life in jail treating such sentence for the whole of the remaining of the convicted person's natural life unless he has earned recursions for good conduct. In other words it is not for a definite period.”  

            Hence, the Chief Justice is very much truthful in his position in computing tenure of life sentence albeit there is a confusion about duration of imprisonment for life among legal fraternity. Consequently, we do not need to amend the law or declare a new verdict to punish a notorious perpetrator lifelong in the name of imprisonment for life. 

Published in the Daily Star's Law & Our Rights (P.12) page on 02.07.2016. 

Death of Khalid Mahmood Mithu: Accident or Negligence?

KHALID Mahmood Mithu, a well-known artist, scriptwriter, video editor and national award-winning cinematographer died in a tragic incident happened on 07 March when a humongous rain tree fell upon him along with his rickshaw-puller Abdul Jalil at Dhanmondi. The tree was uprooted with soil piled around its trunks slackening in the heavy rain occurred the day before the incident. Nevertheless, most of our news media reported the incident as accident whereas the incident was not at all accident rather negligence of local authority in particular Dhaka South City Corporation (DSCC).

Albeit it is very common in Dhaka city and almost all over the country to fall into uncovered manholes, pipes, random fall of billboards, trees and destruction of life and property etc; yet there exist elected local government as well as law to prevent these kinds of nuisance. Hence, an aggrieved person is not only entitled to bring legal action against the local government authority for nonconformity of its duty but also is entitled to get damages from that body.

However, according to clause 24.9 of the schedule of the Local Government (City Corporation) Act, 2009 the DSCC has legal obligation to remove hazardous tree from road side. From the incident of Mithu, it is evident that the DSCC was completely failed to perform its statutory duty.

However, when services are provided to members of the public, e.g. maintaining a highway, the public authority owes a duty of care to the public. Duty of care denotes the circumstances and relationships which the law recognizes as giving rise to a legal duty to take care. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care.

The principle was first emerged from the pen of Lord Atkinson by his famous neighborhood principle promulgated in Donoghue v Stevenson [1932] AC 562 case, where he declared that the concerned must take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure the persons who are so closely and directly affected by their act. Subsequently, the concept of duty of care was further being developed by the House of Lords in Caparo Industries plc v Dickman [1990] whereas the court putted three questions to determine the liability.

Firstly, was the risk of injury or harm reasonably foreseeable?  In the present case the answer is yes; it is apparent that the DSCC has omitted its duty to destruct the dangerous tree which foresee ably could cause damage to the person or property of the inhabitants of the city. The tree was deracinated due to heavy rain occurred previous afternoon and the incident took place next day at about 2.00 p.m. That mean they got sufficient time to take away the tree. Furthermore, it seems that there was no intervening cause to the said death. Failure to perform lawful duty of the DSCC is primarily responsible for this unexpected death.

Secondly, was there sufficient proximity between the parties? There may be situations where the risk of personal injury could be foreseen, but it would not be appropriate to make the defendant liable. “Proximity” in this context means not physical closeness, but any form of relationship between the parties. The question is whether the claimant was a member of the group to which a duty of care was owed. Mithu was not an alien to the city rather a talented filmmaker who achieved National Film Award as best director for his debut film Gohine Shobdo in 2010 and a permanent resident of the locality to whom the city corporation owes full duty of take care.

Finally, is it fair, just and reasonable, on the ground of public policy to impose a duty of care upon the corporation? If it would not be fair, just and reasonable then what would be exact? We have already lost a potential life and another person, the rickshaw-puller is being injured for the negligence of the DSCC. The matter of regret is that we love to ignore many matters which ultimately bring severe consequences for us. Most of the people are not aware of the fact that the city corporation has some duties for its residents and disobedience of those duties may rise to bring legal action. Indeed we have very limited application of tort law in this country. Despite that, an aggrieved person can initiate legal action for omission of legal duty of a local authority.

Interestingly, the Act does not suggest any punishment for omission of any of its legal duty or injury arising out of its negligence. However, there is only one provision in section 106 that if any employee of the corporation is being unable to perform his/her duty then the government will direct him/her by written order to do his/her function within specified time. Mere this provision is not at all sufficient and cannot make the body accountable. There must be some arrangement of sanction and compensation for non compliance of its legal duties. Nevertheless, very recently the High Court Division has asked the government to compensate the family of a four-year-old child Jihad, who died after falling into a 600 ft. deep abandoned uncovered tube-well pipe at Shahjahanpur in Dhaka in December 26, 2014. Now, in absence of any penal or compensatory stipulation, our judiciary can play vital role to uphold the rights of the citizen and to build these bodies pro people.

The city dwellers are continuously paying taxes to the local government for the development of their beloved city and to get services from the authority. Additionally, sec. 109 of the mentioned Act makes the mayor and counselors public servant. Hence, it is the solemn duty of the peoples’ representative to do their functions with due diligence and ensure safety and security of their remuneration providers. 

Published in the Dhaka Tribune as Op-Ed on 16 March 2016 at Page 12. 

Published in the Daily Sun as Post Logue on 16 March 2016 at Page 7. 

Mahmudul Islam: A Banyan Tree of Wisdom in Our Judiciary

Mahmudul Islam, not only a famous lawyer but also an eminent personality in our judiciary who passes away at the age of 79 on 16 February. His death occur irreparable loss to the nation. He is the most talented constitutional jurist in the current era in the country. His book titled the Constitutional Law of Bangladesh is the most adorable and cited constitutional law book among others. As a legendary senior advocate, his role was vibrant. As an interpreter of law, his every word was a pearl of wisdom in the horizon of legal arena. Lifelong he fought for ensuring justice and rights of the citizen under the constitution and other legal frameworks. Indeed he was the lighthouse of our contemporary judiciary.

                                Photo: The Daily Star

            However, Mr. Islam made himself illustrious to others by his elite techniques of submission to the court. The unpretentious capitulations of this legend of wisdom magnated the judges towards his elucidation. The entire judiciary was benefited by his rare scholarly flair. His sober attitude to address the court was conspicuous. He was man of graciousness and was always tolerant of different points of view. Albeit he was gentle in his approach to the people as a whole but quite firm in his views. Even he never took much remuneration for his dedication from his client.

Mahmudul Islam was treated as torch-bearer in any treacherous situation in our judiciary and he handled the circumstance with his extraordinary brilliance. He led the nation in various critical periods like caretaker government into the right course to the future and he became the ethical voice of the nation.

            Apart from this contribution to the court, Mr. Islam contributed greatly to our legal studies also. This top legal brain’s most celebrated work i.e. the Constitutional Law of Bangladesh becomes an authority on Bangladesh constitution. Everyone from inside and outside the country is searching Islam’s constitution book to find out an exact interpretation on any constitutional matter. His thinking on constitutional affair was very blunt and he articulated his intelligence in an outspoken manner. It emerged as bible of constitutional law in Bangladesh. Even his book is the most cited book on constitutional law issues in our supreme court and judges are also relying impulsively on his thought and magical interpretation.

            Nevertheless, Islam was not confined himself in the royal arena of constitutional law. He introduced another branch of his acumen on civil procedure code along with the aid of Probir Neogi. Indeed his pen was a golden stick, what he touched turned into gold. Two volumes book on the Law of Civil Procedure is another treasured creation of Mahmudul Islam. This book is also referred as authoritative guideline for both subordinate and supreme judiciary. However, Islam’s book on Interpretation of Statutes and Documents was latest addition of his scholarly contribution to our legal education. This learned personality focused on our own style of interpretation. He was a jeweler who taught us to bring out the pearls from the mollusk. His sentences are lively and citations are practical to understand. His glorifying and glittering contributions throughout the whole life made him giant. In many occasions the Supreme Court had sought his opinion as amicus curiae in several significant cases like Quader Mollah case, 5 January election case, BDR mutiny case, 13th amendment case, 7th amendment case etc.

Mahmudul Islam was born in Rangpur in 1936. His father Azizul Islam was also a prominent lawyer in Rangpur. He passed his higher secondary level from Rangpur Carmichael college while he achieved his law degree from Dhaka University after completing honours and masters on political science from the same university. After the independence of Bangladesh, he received his LLM degree from Indiana University in the US. He started his initial career at Rangpur District Bar, later on he started practice in the High Court Division. He worked as a junior with lawyer Birendra Nath Chowdhury and then with Syed Ishtiak Ahmed. Mahmudul Islam became assistant attorney general in 1972. Then he served as the state’s top legal officer from 1998 to 2001.

This renowned figure passed away bodily but his enthusiastic legacy will encourage the whole nation for years to come spiritually and ethically. Not only the judicial premises, but also the whole nation will be indebted to Mahmudul Islam for his wisdom and great contribution to the country. He was an actual banyan tree of wisdom in our judiciary.

Published in the Daily Star's Law & Our Rights page on 23.02.2016 at P. 12