Energy justice to combat power crisis in Bangladesh

ENERGY justice denotes the concepts of equity, affordability, accessibility and participation in the energy system and energy transition regardless of race, nationality, income or geographic location. Energy justice aims to make energy accessible, affordable, clean and democratically managed for all communities and to protect them from the disproportionate share of costs or negative impacts relating to building, operating and maintaining electric power generation, transmission, distribution systems and to ensure equitable access to benefits from each system. Energy justice is a community-centric approach that focuses on the ways communities should have a say in shaping their energy futures through policy involvement. Hence, energy justice is significant for a country like Bangladesh to ensure access to affordable, safe and sustainable energy for all.

However, Bangladesh is becoming an extremely electricity-hungry country nowadays while the whole planet has witnessed a global crisis in the energy sector in recent times due to the aftermath of the Covid pandemic, climate change, brewing economic recession, Russia-Ukraine war etc. The global crisis has also exposed energy supply chain shortfalls. Liquefied natural gas has become eight times costlier and crude oil about five times, compared with April 2020. Just a few months back, it was thought that Bangladesh had left its power outage history far behind as it fulfilled almost 100% of power demand following rapid progress in this sector by focusing on capacity building as well as increasing transmission and coverage in the last one decade. We have overcapacity to produce enough electricity but do not get enough resources at an affordable cost now because of a lack of prioritising sustainable sources to produce electricity continuously. Consequently, the previously short outages, usually caused by a brief grid malfunction or a technological fault, have now transformed into the signs of an energy crisis.

Nonetheless, ensuring affordable, uninterruptable, and quality energy for all with limited resources and infrastructure is a great challenge for Bangladesh. Additionally, several factors, including lack of time-befitting decisions, sustainable master plan and policy, administrative incapacity, system failure, resource constraints, growing preference, predatory expansion, corruption and limited energy storage systems, have accelerated the present power outage in Bangladesh.

Electricity generation in Bangladesh is mainly dependent on gas and coal, whereas the current gas reserves of Bangladesh are not sufficient for industrialisation and power generation. As a result, it has become heavily reliant on the importation of coal, oil and gas from multiple overseas sources. However, the international reserve of fossil fuels is not endless and there are many power games and politics involved in the price and supply of them. The current massive price hike of traditional fossil fuels, ie oil, gas and coal in the international market, made the present power crisis inevitable in Bangladesh. A lack of exploration of alternative sources and initiative to spread and popularise renewable energy has created threats to supply and national security as well.

The government prepared a periodic master plan for electricity generation, namely the Power System Master Plan in 2016, which also focused on fossils instead of renewables and called for 35 per cent gas and 35 per cent coal-based electricity generation. As a result, 70 percent of projected energy demand in 2026 would have to be met through imports, despite domestic gas’s declining contribution to the energy mix. Therefore, the country’s energy security will face a threat in the coming days, which is also reflected by the current crisis. Conversely, renewable energy is being emphasised to reduce the dependence on natural energy and the effect of greenhouse gases globally.

Regrettably, the Power Development Board has recently drafted an Integrated Energy and Power Master Plan without following the energy justice approach. It prioritises natural energy imports for the next five years, despite forecasts of the international energy market remaining volatile over that time. The draft master plan disregards the potential of expanding renewable energy, the need to explore internal gas resources and the need to phase out costly oil-fired power plants. It also lacks a roadmap to reduce power sector system losses.

The authorities should concentrate on increasing investment in renewable energy gradually to overcome the existing power crisis and reduce energy importation. Bangladesh holds ample exploitable renewable sources of energy that could be used to address and ease the country’s current power issue. Solar power plants, winds, tides, bio, hydrological, solar thermal, ocean waves and the Bay of Bengal should be utilised on a large scale at this moment to handle the situation.

Experts roughly estimate Bangladesh’s wind and solar power potentials to be 60,000 MW and 35,000 MW, respectively. A wind or solar power project is implementable within nine months to a year. Also, our wind potential is not confined to Cox’s Bazar and other coastal areas only. We have a good supply of wind power after a certain altitude in our country. Arguably, it is possible to generate 33,000 MW at an 80-metre altitude from wind power, whereas the generation could be doubled by raising the height to 120 metres. Moreover, an agro-based country like Bangladesh may lean on biomass energy more, using only agricultural crop residues, animal manure, and municipal solid waste. Democratic management of energy, well-trained human resources, and modern technology can quicken this process.

The state should now take some immediate actions to combat the power crisis, including adaptation of the energy justice approach in the energy system, putting emphasis on purchasing local gas at a low cost instead of importing it at a high rate and trying to reserve it, as well as concentrating on strengthening state-owned BAPEX rather than giving priority to foreign companies. Because we wouldn’t be able to afford the same previous mistakes of the policymakers in the energy sector anymore.

Nevertheless, being a developing country, maintaining a balance among affordability, environmental sustainability, and energy security is not easy for Bangladesh. Hence, it is high time the authorities established energy justice to frame a long-term sustainable plan in order to prevent another energy crisis of this kind in the future.

Published on the New Age as lead Sub-editorial on 15 October 2022 at page 8.

Published on the Daily Sun as Op-ed on 19 October 2022 at page 6.

Published on the Asian Age as lead Sub-editorial on 20 October 2022 at page 6.

Published on the Daily Observer as Op-ed on 21 October 2022 at page 5.

Published on the daily Ittefaq (Bangla) as Sub-editorial on 21 October 2022 at page 8.

Published on the daily Sangbad (Bangla) as Sub-editorial on 21 October 2022 at page 6.

Published on the Business Standard as Op-ed on 24 October 2022 at page 15.

Published on the Daily Jaugantor as Sub-editorial on 30 October 2022 at page 4.

Published on the Energy & Power Magazine as an Article on 3 November 2022.

Online Content Regulation v Freedom of Expression

The livestreaming of the Christchurch terrorist attack in New Zeeland in 2019 has demonstrated potential threat to spread illegal and harmful contents on social media by the terrorists to amplify their mal intention to the general users of internet. As a result, online content regulation gets high political momentum around the world after the live video broadcasting of massacre of 51 Muslim worshippers at the Al Noor Mosque by terrorist Brenton Tarrant. Earlier, the global social media companies govern contents voluntarily through their own policy and by mostly depending on AI technology and users’ report to remove any illegal or harmful content. However, this incident has shifted the burden from voluntary action to mandatory legislative measure.

More than 40 new social media content regulation laws have been adopted worldwide in the last couple of years while another 30 are under active consideration. These laws aim to prevent social media platforms being weaponised for the purpose of flourishing extremism and propaganda by forcing online providers to control content on their platforms more cautiously. These legislations attempt to moderate both illegal and harmful but not directly illegal contents on online surface. Illegal content would encompass a large variety of items which directly contravene the legislation, such as hate speech, incitement to violence, child abuse, revenge porn etc. Instead, harmful content, refers to information that does not strictly fall under legal prohibitions but that might nevertheless have harmful effects like portraying self-harm, suicidal attempt content, cyberbullying, mis-or disinformation etc.

Soon after the Christchurch incident, the parliament of the commonwealth of Australia had enacted the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act in March 2019. This new law created fresh offences and liability for the providers of online contents and hosting services to make their platforms safe and responsible. The law compels tech companies to expeditiously remove illegal and harmful contents and failure to get rid of the content in a stipulated time could bring imprisonment and fines of up to 10% of their annual profit. Again in 2021, Australia has enacted unique Online Safety Act which includes world-first Adult Cyber Abuse prevention mechanism.

Likewise, Germany, France, European Union, Turkey, Brazil, Russia, United Kingdom, United States, India have either already passed or under process to formulate similar legal framework to govern social media contents. However, there is an interesting discourse around the globe whether judiciary or private tech company will determine the legality of content as the recent trend of worldwide online safety laws assign obligation to assess the legality of the content on private tech companies. Nonetheless, these laws provide forum for setting up a complaint handling system to make the tech giants accountable and ask them to produce transparent annual report on their actions against illegal and harmful contents.

However, there is a common allegation of restricting freedom of expression and imposition of censorship against these laws as there is genuine fear that many hosting providers and platforms will remove contents to avoid liability without assessing the merit of the content judiciously. Additionally, outsourcing of private tech companies or asking a government body instead of employing independent judiciary to evaluate the legally creates apprehension of restricting dissenting voice on social media.

However, Bangladesh has faced a lot of consequence arising out of illegal and harmful contents on social media ranging from livestreaming of suicide, disclosure of revenge porn, cyberbullying to harassment, hate speech, abuse, communal unrest etc. At this moment, there is no specific law governing illegal and harmful social media contents, although there are some controversial laws like the Digital Security Act, The ICT Act mainly to prevent cybercrime but not exhaustive to handle illegal and harmful contents.

Now, Bangladesh mainly follows command and control approach to regulate toxic contents on social media where both the government and the court orders telecommunication regulatory authority and digital security agency to scrap any controversial content or block access to a particular link from Bangladesh. Hence, there is actual risk of limiting the freedom of expression, plurality of opinion and restricting dissenting voices in absence of a clear-cut standard to determine illegal and harmful contents.

Nevertheless, the Bangladesh Telecommunication Regulatory Commission (BTRC) released a draft regulation on digital, social media and OTT platforms in 2021 to comply a court order to formulate policy for OTT platforms only that has great similarity with the much criticised the Indian Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Immediately after publishing the draft regulation, it received massive criticism from rights group and civil society for limiting freedom of expression. There are so many incomplete and vague terms which have no concrete definition i.e. sovereignty, integrity or security of the country, decency or morality, friendly relations with foreign countries, or defamation (clause 6.01 (d)). Lack of proper definition and not knowing the exact elements to constitute the crime will create a fearful environment to express opinion as there are several allegations of irrational use of these grounds to jail people earlier.

Again, clause 7.03 of the draft obliges intermediaries like messaging service providers to unlock privacy of correspondence of the users to trace the first originator of a message and reveal his/her identity upon receipt an order from court or BTRC which is a clear violation of article 43 of the constitution. Moreover, authorizing BTRC through this draft regulation raises a genuine apprehension of possible arbitrary use of this power. There are several other scopes in part two and three of the mentioned regulation that can violate citizens’ right to freedom of expression and privacy guaranteed under the constitution. Hence, the draft regulation should be prepared newly respecting the international human rights standards, established best practices and aiming to create conducive, safe online environment without contravening rights of anyone.

Published on the New Age as Sub-Editorial on 10 September 2022 at page 8.

Published on the Daily Sangbad as Sub-Editorial on 15 September 2022 at page 6.

Published on Sarabangla as Opinion on 1 October 2022

Published on Drik News as Opinion on 23 October 2022.

In Quest of a Justice Friendly Family Court in Bangladesh

The cabinet okayed the draft Family Court Law 2022 on 3 July to implement a Supreme Court judgment that declared all martial law regulations and orders void during General Ershad’s regime. The present Family Court Ordinance (FCO), 1985 enacted at that time while the draft family court law aims to repeal the earlier. According to the press, the cabinet secretary confirmed that the proposed law contains nominal changes than the former. There are only couple of mentionable amendments in the draft law; other than these, it is merely a conversion of previous texts from English to Bangla. The new law provides a bigger forum for appeal which includes all judges having the status of district judge would be able to dispose of the appeal arising out of family courts now and enhancement of court fees from taka 50 to 200.

These minor changes exasperate rights activists and legal experts as they demand rigorous alteration of the current provisions of the FCO. The existing FCO clearly fails to ensure complete justice rather creates complexity and multiplexity of suits. As the government has taken initiative to scrap the present law, hence this write-up is aiming to bring some significant issues into the light to re-evaluate before finalising the draft law in the parliament.

The family court is an important court considering its impact on society not only in our country but also globally. The main reason to create a separate specialised court for family matters should be to resolve it speedily with fewer expenses and formalities whereas both the present and proposed laws have clumsy provisions to delay the proceeding. 

The draft law does not define family or family matters; it only determines the jurisdictions of the court in divorce, dower, maintenance, restitution of conjugal rights and guardianship & custody. However, other family matters like validation of marriage, adoption, repression of women, domestic violence, maintenance of parents, legitimacy of children, property distribution, adultery etc are neglected in our law. Family court is not like any other traditional court rather it deals with personal, familial, matters relating to well-being of children and emotions of the parties. Thus, it must have some unique characteristics than regular courts. People should not go to different places for other family matters. In the context of Bangladesh, we have seen that the justice seekers are instituting multiple suits and cases in family matters in multiple courts i.e one for divorce, dower and maintenance of wife and children in family court and another for dowry in criminal court.

Again, the Parent Maintenance Act fixes first class magistrate court to resolve the matter there. Sometimes some are going to the Nari O Shishu Nirjatan Daman Tribunal who does not get justice in family court. Again, occasionally husband files a declaratory suit in the civil court to declare the Nikahnama non-binding upon him as it is allegedly obtained by coercion from him. If we could create a court having concurrent civil and criminal jurisdictions and power to try all the family matters in the same room then the litigants will get one stop service at least expense from one single court quickly. 

Earlier there was a debate about whether the FCO is only for Muslims while the Pochon Rikssi Das v Khuku Rani Dasi and others, 50 DLR (HCD) 47 (1998) clarified that all citizens can seek remedy in family court irrespective of their religious faith, so far it is applicable for them. However, it is not clearly stated in the new law too.

This confusion can be removed by insertion of subject matters of other faiths like adoption, right to separate residence etc too. In addition, the new law should have provisions to settle family disputes of indigenous people considering their own culture, tradition and values as well.

There is another problem as to the judge of the family court. The law appoints all the assistant judges as the judge of family court. Arguably assistant judges have less maturity and experience to handle with the family matters as it is the entry post of their career. Henceforth, the legislators may consider this point to make more experienced judges as family court judges. In India, one must have seven years of experience to deal with family matters as a judge. Moreover, under the present system, usually family court does not have separate room and the same assistant judge try other civil matters and family dispute as well which put extra work load and sometimes cause delay.

Further, judges of the family courts are not well trained to deal with issues affecting family matters. These disputes often involve very difficult circumstances, for example relationship breakdown or best interest of the child. The family court judges need intensive and special training as these cases affect peoples’ lives in a very close and sometimes devastating way. Our court proceedings are also not very women, transgender and children friendly. The whole process and administration should focus on gender-based equality while determining a family suit and the law itself should emphasis on gender sensitivity to avoid contentious words in pleadings and unnecessary character assassination of a party. Moreover, provision relating to the admission of digital evidence is not inserted in the proposed law.

Admission of digital evidence can speedier the justice process in family suits and helps the court to come to a conclusion smartly. Sometimes the parties and witnesses are too frightened or upset to be in the courtroom whereas an arrangement can be made to help them by using a video link.

This law has provision of double Alternative Dispute Resolution (ADR) which requires additional training for the judges to make compromises among family members. Thus, the appointment of expert court officers like counsellors is urgent in all family courts to deal with psychological matters with more care and caution. The new law may also make ADR mandatory before initiating any family proceeding and in case of failure of ADR only, the party concerned can come to the court for further relief. As custody of the child is a major concern of the family court, therefore the court must have arrangements to hear the child exclusively in a fear-free environment. Moreover, the presence of the parties should be mandatory at the pre-trial and post-trial hearings as family matters require amicable settlement between the parties which is impossible without the presence of the parties.

Recently we have seen conflict of laws and transboundary elements in child custody and the right to visitation in our apex court. The proposed law is purely silent about the transboundary nature of this problem. Additionally, neither the current law nor the draft law has any provision relating to the execution of foreign judgment which creates a vacuum for a party having foreign judgment in this regard. Also, Bangladesh is not yet a state party to the Hauge Convention on the Civil Aspects of International Child Abduction, 1980. Hence, this is high time for Bangladesh to become a state party to the Hauge Abduction Convention and make our family court law more effective by ratification of the said convention. 

Again, the restitution of conjugal rights is a big topic for debate all over the world. In some view, this is ultra vires to the constitution and violation of personal liberty while other observes it perfect as marriage put some obligations on both husband and wife under all religions. The Bangladeshi apex court also promulgated divided decisions in this context. Few judgments declared it as violative and discriminatory while others treated it as a regular religious matter. However, the proposed Family Court law is totally silent in this regard and does not show any way of execution of this type of matter. Another loophole in the draft law is the absence of punishment for the institution of fake suit which is a common culture in many cases and fake suits take valuable time and effort of the court.

Additional major lacuna in the family court law is the lack of inherent power. Family court becomes unable to do justice by means of applying discretionary power depending on the sense of equity, justice and good conscience due to deficiency of inherent power not given in the law. One more drawback of the present law lies in the execution of the decree given by the court.

To recapitulate, it can be said that the existing FCO is utterly unsuccessful to achieve its aims which was enshrined 37 years back and regrettably the proposed law also does not show us any ray of hope. There are a lot of scopes to develop the family court law to make it truly effective for the litigants. Yet there is time to create a justice friendly family court in this country by doing necessary amendments to the new law.

Published on the Daily Asian Age as Op-ed on 21 July 2022 at page 7

Published on the Daily Shomoyer Alo as Sub-editorial on 19 July 2022 at page 4.

Published on the Daily Sun as Op-ed on 26 July 2022 at page 7.

Published on the Daily Alokito Bangladesh as Sub editorial on 29 July 2022 at page 6.

Published on the Law and Our Rights page of the daily Star on 5 August 2022 at page 10.

Published on the Weekly Sampratik Deshkal as Opinion on 18 August 2022 at page 3.