Legal Protection is Needed for Good Samaritans in Bangladesh

The initial hour following a road crash with casualties is crucial for saving lives and minimising the risk of disabilities. This period is commonly referred to as the "golden hour" or "golden time" in road traffic incidents. 

Prompt access to emergency medical services during this critical hour can significantly enhance the chances of survival for the victims. Unfortunately, Bangladesh currently lacks sufficient post-road crash care facilities, particularly in rural and remote areas. 

This scarcity of emergency medical services contributes to a rise in the number of fatalities and injuries on the roads. Consequently, victims and their families often face disabilities and financial burdens due to the absence of adequate post-crash care.

Often, it is the nearby residents or passers-by who become the first responders at the scene of a crash. These individuals voluntarily leap into action, doing their best to rescue the passengers from danger, even in the absence of technical knowledge or professional assistance.

They then promptly transport the victims to the nearest government or private hospital. Therefore, passers-by play a crucial role in preventing fatalities and severe injuries in the aftermath of an accident.

Unfortunately, in recent times, it has become increasingly common to witness injured individuals lying on the road while passers-by choose to record the incident with their phones and walk away without offering any assistance to the victims. 

The primary reason behind the public's hesitation to intervene immediately is the fear of getting entangled in police questioning, criminal cases, additional hassle, and complex court procedures. 

Furthermore, bystanders often face harassment from private hospitals, as these institutions tend to deny admission to patients without immediate payment or without a connection to the person accompanying the victim to the hospital.

Additionally, those who volunteer to help in rescuing victims face the risk of being sued with civil or criminal charges if any harm is inadvertently caused to the victim during the rescue attempt. 

This fear of legal repercussions, coupled with potential police involvement, further discourages the public from offering aid to road crash victims, despite their desperate need for assistance and potentially life-saving measures.

That is why a legal framework is crucial to safeguard Good Samaritans from being harmed and to encourage their assistance to victims without fear of negative consequences. 

A Good Samaritan refers to an individual who willingly steps forward in good faith to provide immediate assistance or emergency care to a person injured in an accident, crash, or medical emergency, without expecting payment, reward, or assuming any duty of care or special relationship. 

Unfortunately, there is currently no law in place to protect Good Samaritans and enable them to aid road crash victims in Bangladesh. 

While the Penal Code of 1860 offers indemnity to volunteers who act in good faith without consent for the benefit of a person under Section 92, this provision only provides protection against criminal liability and does not exempt them from civil and other responsibilities. 

Therefore, it is necessary to establish a separate law or, at the very least, a separate provision within the Road Transport Act of 2018 to shield Good Samaritans from both civil and criminal liabilities and to impose an obligation on hospitals and clinics to provide emergency healthcare services to the victims.

Globally, Good Samaritan laws are in place to safeguard volunteers who provide reasonable assistance to individuals who are injured, ill, in peril, or otherwise incapacitated in road, rail or air crashes. 

These laws have the purpose of encouraging bystanders to help those in need and ensuring that they are protected from harassment by the police, hospitals or any other parties. The laws ensure that selfless rescuers are not held liable for any unintentional acts of negligence, omissions, harm or wrongful death that may occur as a result of their genuine efforts.

An ideal Good Samaritan law includes provisions that prevent the rescuer from being compelled to file a police case at the police station or bear the costs of medical services provided by the hospital. 

Furthermore, the law ensures that the Good Samaritan cannot be forced to remain at the hospital or police station. It guarantees that the individual is not obligated to provide personal information, such as their name, address, phone number, or the identity of the victim, even for a medico-legal form. 

The Good Samaritan is also not required to provide any other evidence to the police. If the individual voluntarily chooses to participate in the investigation process, their statement will be recorded in a single hearing, and they will not be repeatedly summoned by the police. 

Additionally, there should be a provision for the Good Samaritan to lodge complaints against any misconduct by the police or hospital to the relevant authority.

The High Court Division (HCD) has approved the Emergency Medical Services for Road Accident Victims and Protection of Good Samaritans Guidelines, 2018 in the case of Syed Saifuddin Kamal & anr. Vs. Bangladesh & ors., 13 SCOB [2020] HCD. 

The court has declared that these guidelines will be considered enforceable until the legislature enacts the necessary law in this regard. This aligns with the stance taken by the Indian Supreme Court in the case of Save Life Foundation and anr. Vs. Union of India and anr. in 2016.

According to the HCD verdict, a Good Samaritan is defined as any bystander and/or passer-by who provides assistance to accident victims. These individuals can play a crucial role in saving lives by either immediately transporting the victims to the hospital or providing immediate lifesaving first aid. 

The guidelines impose the responsibility on law enforcement agencies to provide emergency medical care to victims of road, rail or air accidents. It states that if a person injured in a road crash was also involved in the incident, they cannot be harassed or sent to the police station for legal action before receiving emergency medical care. 

Additionally, it mandates that the relevant officer of the law enforcement agency should arrange suitable vehicles for road crash victims if an ambulance is not available at the scene to provide emergency medical care.

Currently, the legislature has not made any efforts to establish a law concerning emergency medical services for road accident victims and the protection of Good Samaritans. 

Furthermore, the directives provided by the HCD have not been fully implemented. As a result, the number of deaths due to road crashes continues to rise in the country. It is essential for policymakers to prioritise the preservation of lives in this nation. 

Therefore, there is an urgent need to comply with the judgment of the HCD and enact a legal framework that ensures the protection of Good Samaritans. This will help instill confidence among the public and encourage them to fearlessly assist victims of road, rail, and air crashes.

Published as Sub-editorial on the Daily Sangbad on 30 April 2023

Published as Sub-editorial on Dainik Bangla on 3 May 2023

Published as Op-ed (Thought) on The Business Standard on 18 May 2023 at page 15

The Proposed Motorcycle Movement Policy 2023 of Bangladesh is Commendable; But…

Journey by motorcycle has increased tremendously since the inauguration of ride-sharing services in Bangladesh. Motorcycle is being hailed as a popular means of transportation within short time as it takes less time and cost to reach a destination, particularly against the backdrop of Dhaka's unbearable traffic gridlock. Another big reason for blooming motorbikes on the road is the government's encouragement to build motorcycle factories in the country. However, with the increase of motorcycles, the number of road crashes has also upsurged. The number of casualties in motorcycle crashes has increased in recent times due to high speed, uncontrolled movement, reluctance to use standard helmets and other safety gears, excess passenger and cargo transportation on motorcycle, lack of adequate training, improper law enforcement etc. In this situation, it is known from the media sources that the government is going to formulate a policy called the Motorcycle Movement Policy 2023 to regulate motorcycle movement in the country. The Road Transport and Highways Division, Bangladesh Road Transport Authority, Bangladesh University of Engineering and Technology (BUET), Police and Roads and Highways Department are involved in the policy making process. Despite the concern how effectively it will be implemented, the newly drafted policy was a long felt one to address the reckless motorcycle movement.

There has been a negative reaction among the motorcyclists, riders, pillions, manufacturers, traders and users about the proposed restrictions recommended in the draft policy. Riders and users were aggrieved because of the ban on the Padma bridge and highways during festive times, harassment of motorcyclists by the police in the name of random stopping and checking on the roads and for various other reasons. At this moment, the proposed policy has added fuel to that old fire. In addition, due to the vagueness on some points, exclusion of bikers and manufacturers from the policy making processes, non-clarification of the concerns raised by the riders etc. have influenced them to protest against the draft policy. However, the object to formulate the policy is novel as it aims to reduce road crashes by ensuring safety for the bikers, pillions and users. Now the government needs to connect the stakeholders with the objectives of the recommended policy and clarify the ambiguities questioned by them.

The most controversial matter in the policy is the 30 kmph maximum speed limit for motorcycles in the city. Young motorcyclists opined that the 30 kmph speed limit inside city will increase the chances of road crash as the speed limit is not applicable to other motor vehicles like car, bus, truck etc. and just slowing down the motorcycle speed will create scope to hit motorbikes from behind by other vehicles.

This is the major flaw of the policy as it does not propose same maximum speed limit for all other motor vehicles in city. In order to ensure road safety in almost all countries of the modern world, the maximum speed limit for all classes of motor vehicles in cities is 30 kmph. This speed limit is even lower in schools, hospitals, densely populated areas etc. A question may come where the average speed of Dhaka city is decreasing day by day for traffic congestion; why would the maximum speed limit be fixed at 30 kmph? Because in urban areas there are more pedestrians on the roads while pedestrians walk and cross the road randomly. Pedestrian deaths are increasing due to speeding. Research shows that a pedestrian hits by an automobile traveling at 30 kmph has 80 percent chance of surviving. Furthermore, due to the growth of using bicycles, pedal-powered e-cycles, low-speed mobility scooters for differently able people; the speed limit for all motor vehicles in cities worldwide is 30 kmph. Controlling the speed of motorcycles alone without controlling the speed of other vehicles will not serve the purpose rather crate anarchy on roads. Therefore, the government should determine the maximum speed limit in urban areas for all classes of vehicles immediately.

The draft policy has banned the movement of motorbikes on highways with any pillion. This is not consistent with the much-discussed Road Transport Act (RTA) of 2018. Section 49(1)(f) of the Act stipulates that a motorcyclist shall not carry more than one pillion. Therefore, there is no scope to prohibit the carrying of a pillion under the proposed policy whereas the main law allows the same. There is no doubt that the biker and the pillion will suffer severe causalities if any collision happened on the highway. The committee might have thought the fatality in that case, but there is no opportunity to import a new provision in the policy which is contrary with the original law. Thus, amendment of the RTA is necessary to include restriction for carrying pillion on highways.

However, in addition to standard helmet, the draft policy obligates the bikers to mandatorily wear other safety gears like chest guard, knee guard, elbow guard, ankle-covering shoes or sneakers, full-finger gloves, full pants and full shirt, and anti-lock braking system on the motorcycle for highway movement. This provision will play significant role in reducing the loss of life in road crash.

The recommended policy also bans pregnant women, elderly people and children below 12 years of age from riding motorcycles on any road, which is undoubtedly a good thought. However, if the age is not defined for elderly person, many may face harassment on roads. Moreover, in case of pregnant women, a time limit may be fixed that a pregnant woman cannot be a motorcycle rider after certain month of pregnancy. Children are the most vulnerable as riders on a motorcycle ride. In various countries, riding a motorcycle is prohibited before the child reaches a height where he can safely sit on the footrest of the motorcycle, and it is from that spirit that our draft policy has set a minimum age limit to ensure the safety of the child. However, since there are no restrictions on these matters in the RTA; provision can be added to allow the government to impose restrictions on riding motorcycles by amending the RTA. Otherwise, the good intentions of the policy makers may be challenged for contradicting the original law.

Recently, there has been an increase in the trend of long-distance journeys by motorbikes, especially during the festive seasons, and to curb this trend, the draft has recommended a 10-day ban on motorcycling on highways before and after festival periods like Eid, Puja etc. Mainly due to scarcity of bus/train tickets, exorbitant price hikes, indiscipline on the highways etc. bikers are influenced to travel long distances on motorcycles. Nonetheless, it remains questionable about the reasonableness of 20-day suspension during festival. Long journeys during festival may be considered by ensuring adequate safety measures, imposing strict speed limits and proper enforcement of laws. Otherwise, a large section of citizens who themselves are paying taxes to the government for using roads will be deprived of enjoying their rights.

The recommendation to check driving license before selling motorcycle and not handing over the motorcycle before registration is commendable. It will control unregistered and unlicensed motorcycle driving. But to make the initiative a success, license verification by the vendor needs to be facilitated. Manufacturers, sellers or distributors should ensure registration and licensing as part of their social responsibility to cooperate with the government. Additionally, the proposal to give two standard helmets to the buyer is also praiseworthy. Many countries around the world have found success following this model. In recent times the use of substandard helmets has increased vastly, resulting severe fatality in road crash which can be prevented by this initiative.

Scooty type motorcycles are relatively safer than sporty motorcycles. Because its speed is low, control is easy, in case of an accident, biker can lower legs from both sides and come to a stable state quickly, etc. Hence the draft policy calls for tax exemptions to popularize scooters and tax hikes on relatively unsafe sporty motorcycles; which is admirable. In addition, some responsibilities of manufacturers, assemblers, distributors and related persons such as training on riding and first aid before selling motorcycles, providing manuals with motorcycles, distribution of pamphlets (handbills, leaflets, posters and stickers) relating to road safety etc. has been incorporated in the policy to reduce motorbike crash.

According to Bangladesh Passenger Welfare Association, 2,533 people were killed in motorcycle crashes in 2022, which is more than two and a half times than in 2018. Bangladesh tops in the world in motorcycle crash deaths. In 2021 with the support of the World Bank, in a study on road safety on 16 countries (including Bangladesh) where motorcycles travel more, the Accident Research Institute of BUET found that 28.4 people die in accidents against every 10,000 motorcycles in the country every year. About 40 percent of them are 24 to 30 years old. This death rate in motorcycle crash is the highest in the world.

Three objectives have been mentioned in the draft Motorcycle Movement Policy: 1. reducing road crash by regulating motorcycle movement; 2. encouraging the safe use of motorcycles and the relatively low-risk use of motorcycles and 3. raising awareness among motorcyclists. Therefore, it can be said that the proposed policy can play a leading role in reducing road crash, dropping risk and increasing awareness. However, before finalizing the policy, it is necessary to increase its acceptability based on the opinions of all stakeholders and bring consistency with the original law or else an auspicious venture will be nipped in the bud.

Published as Sub-editorial on Dainik Bangla on 3 March 2023 at page 8.

Published as Lead Op-ed on the Daily Observer on 5 March 2023 at page 5.

Published as Lead Op-ed on the Daily Standard on 13 March 2023 at page 15.

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.

What Does the Law Say About Search and Raid in Bangladesh

 Right now, almost everyone in Bangladesh is talking about the arrest of actress ‘Pori Moni’. In the last few days, the law enforcing agencies of Bangladesh have raided houses of a few films actress and female ‘models’ and a film producer. RAB confirmed that they found foreign liquor bottles and other narcotics like yaba, shisha, ICE consuming pipes, blotting papers for LSD etc. from their residences. There are allegations against two models that they have also been members of an organised blackmailing group and have been blackmailing many a wealthy men for big amount of money.

However, just before her arrest, Pori Moni claimed in a live video from her verified Facebook page that a few men were at her house and was trying to enter into there forcibly without disclosing their specific identity. She assumed they could be robbers. She also claimed she had called her nearest Thana for police help and was waiting for police to turn up for her rescue. Though, till the end of the live video, apparently no police officers from Banani Thana made an entrance. In Facebook live video, Pori Moni also claimed that she had asked Banani Thana to confirm if they were aware of any raid at her house and Banani Thana couldn’t confirm it.

Albeit, following her arrest, the RAB confirmed to the press that the raid was carried out based on specific allegations and information against this Dhallywood super star. RAB spokesman also confirmed to journalists that the alleged heroine turned her house into a mini bar and regularly arranged unlawful parties along with her accomplices at her residence while they were also allegedly involved in blackmailing and extortion.

The allegations against other two models and Pori Moni are quite similar and in all three house raid incidents, official legal actions have been taken after the alleged recovery of narcotics and alcohols. So far, the media reports reveal that there was neither any earlier case in their name nor the law enforcers have any search warrant from the court against them.

There are specific laws to conduct search of person and house in Bangladesh. Search has always been a sensitive issue across the globe as it may infringe citizen’s right to privacy and a number of other human rights. Therefore, laws relating to search are enacted and executed carefully now a days.

Article 31 of the Constitution of the People’s Republic of Bangladesh guarantees right to protection of law and says it is an inalienable right of every citizen of this country and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Hence, law enforcers can’t bring an accused in front of the media before proving the guilt and must not demolish anybody’s reputation.

Moreover, article 33 of the constitution implies duty to inform the grounds of arrest without any undue delay to any arrestee while article 35 enshrines individuals right not be a witness against himself. Article 43 secures right to be safe in home against unlawful entry, search, seizure and right to privacy. Therefore, it is very clear from the text of the constitution that it intends to protect the citizens from unlawful search.

Hence police must comply with the law and get a search warrant from a competent court before carrying out a search or raid at a private place. In order to get a search warrant, police are required to demonstrate to the court sufficient and reasonable evidence of a crime. It should clearly state where exactly the search should take place i.e particular place or part thereof, including a specific date and time.

The power to issue a search warrant should be exercised with due care and diligence by the court. The Code of Criminal Procedure (CrPC), 1898 suggests three specific circumstances under section 96 where a search warrant may be issued: i) if any court has reason to believe that a person will not produce a document or thing as required by the summons of that court, or

ii) the document or thing is not known to the court to be in the possession of any person, or

iii) the court considers that the purpose of any inquiry, trial or other proceeding under the code will be served by a general search or inspection.

Additionally, section 98 of the code empowers a District Magistrate or a specially empowered executive magistrate to issue a warrant for search of a house upon information and after such inquiry as s/he thinks necessary to enter into a specified place and search in specified manner.

However, there are few exemptions for hot pursuit as section 165 of the CrPC and section 23 of the Narcotics Control Act (NCA), 2018 have been enacted as exceptions to these general rules of searches because it is recognized that in certain emergency situations it may be necessary to permit the police officer to carry out searches without first applying to the courts for authority. Otherwise, the purpose of the search may be frustrated.

According to the said provisions an officer in charge of a police station or an investigating officer or a specially empowered office under the NCA may proceed for search without warrant if the officer reasonably believes that a thing cannot in his opinion, be otherwise obtained without undue delay. The officer requires to record in writing the grounds of his belief and specify the thing for which the search is to be made.

Nevertheless, the provisions as to search enumerated in the CrPC shall also apply to search without warrant. In case of every search, the officer shall call upon two or more respectable inhabitants of the locality to attend and witness the process and that shall be carried out in their presence. The term respectable inhabitant is not defined in the law and there is scope of misusing it. They may not be allowed to witness everything during the search or may not act independently due to the influence of police.

In accordance with the law, the occupant of a house or some other person in his/her behalf shall in every instance be permitted to attend during the search. Regulation 280 of the Police Regulation of Bengal, 1943 prescribes detail responsibilities of police while carrying out a search which must be followed scrupulously. Taking extra caution, be sensible for search at a private place where woman is living is mentionable among them. Same rules will be applicable in the area under DMP as well.

Although the law authorizes search without warrant in limited circumstances, police should not use this exception as a sweeping power. Aside cooperating with the police during search, the occupant of a house has some rights i.e. asking for identification, knowing particular grounds for search, seeing the warrant etc. Further, the occupant can restrict the search inside a definite area stipulated in the warrant and if they violate the manner of search listed in the warrant then the occupant can even challenge them. Besides, any evidence seized during the search can’t be used in the court if it is collected infringing the law. 

Still there is always a real danger that one may plant evidence against anybody out of rage during a search and police may use it as evidence against that person. To avoid this, searches should be video recorded, from the beginning till the end, to ensure transparency and accountability. Also, a provision may well be introduced to carry out a search in presence of a preferred lawyer of the accused, if immediately available to avoid any future legal collision and mistrust.

Published on Dhaka Tribune as Op-Ed on 8 August 2021.

Can the Sun Shine through Dark Clouds?

The Bangladesh parliament has enacted the Public Interest Information Disclosure (Provide Protection) Act (popularly referred as the Whistleblower Protection Act) to guarantee legal protection to the whistleblowers back in 2011. Albeit the principal aim of this law is to ensure safeguards to the whistleblowers yet journalists are also eligible to take advantage of this legislature for their professional purpose. Regrettably, after a decade following its enactment, very little is known about what the law means and what it can do to improve transparency, accountability and good governance in public domain. Most of the people including the government employees, activists and even journalists remain ignorant about the existence of such a legislation. Consequently, the application of this piece of sunshine law becomes rare in this country.

The recent incident with Rozina Islam, a senior reporter of the leading Bangla daily Prothom Alo brings this issue into light again. Being a journalist, Rozina Islam is entitled to collect evidence and data from any government office while the Whistleblower Protection Act of 2011 enables anybody to disclose public interest related information and provides statutory safeguard from all types of civil and criminal cases or departmental proceedings or any kind of action, punishment, discrimination etc. Whistleblower denotes any person who discloses the public interest information (S. 2 (5)). The person may leak information from inside or outside of a public office. The main focus of this law is to uphold public interest and combat corruption by disclosing material information about any irregularity.

Investigative journalist Rozina Islam claimed that she went to the room of the personal secretary of the secretary of health services division at the secretariat to perform her professional duty as she got information from her source whereas the health ministry officials brought allegation for theft and photographing of ‘sensitive’ state documents. Subsequently, they lodged a criminal case against Ms. Islam under the Official Secrets Act, 1923 & the Penal Code, 1860.

However, the Right to Information (RTI) Act, 2009 along with the Whistleblower Protection Act, 2011 create a new regime for free flow of information and fearless journalism for public interest in Bangladesh. This couple of legislations override widely criticized the Official Secrets Act and some other laws i.e the Evidence Act, 1872 (S. 123: evidence as to affairs of state); Rules of Business, 1996; the Government Servants (Conduct) Rules, 1979 etc after their enactment. Section three of both the RTI Act & The Whistleblower Act provide supremacy over any conflicting provision in any other law having force for the time being in the country. So, there is no scope of hiding any public document in the tag of ‘confidential’ or by virtue of the colonial-era Official Secrets Act except truly classified secret document like sensitive defence policy, important formula, bi lateral confidential contract etc. However, despite extensive condemnation, S. 32 of the Digital Security Act (DSA) of 2018 includes the Official Secrets Act although the RTI Act will prevail in case of any incongruity between these two (Section 3 of the DSA).

Rozina Islam is a well-known correspondent for unearthing graft in various government projects. Recently she published a series of investigative reports disclosing numerous corruptions in health ministry amid COVID19. Therefore, this is a general assumption that she went to the health ministry this time to get or verify information relating to public interest. Now, the question is what does the public interest information mean? In accordance with the Whistleblower Protection Act, public interest information means such an information of any agency which expresses that, any officer was, is or may be involved in: irregular and unauthorized expense of public money; mismanagement of public resources; misappropriation or misuse of public money or resources; abuse of power or maladministration; committing criminal offense or illegal or prohibited acts; a conduct that is harmful or dangerous for public health, safety or to the environment; or corruption. Rozina’s earlier reports directly dealt with the abovementioned issues. If in the present case, Ms. Islam could establish that she was trying to gather information relating to public health or citizens’ right to health then the case will automatically be unmaintainable against her.

However, disclosure of information relating to public interest is guaranteed under the Public-interest Information Disclosure (Provide Protection) Act, 2011 (under section 4). Thus, if Rozina believes on reasonable ground that the information is true what she allegedly tries to collect; or if there is no reasonable ground to believe the truth of the information, but she believes that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated then her alleged act neither amount to a crime nor fall under the purview of the Official Secrets Act as she did not disclose the information to our enemy. Moreover, she was not a trespasser from where she allegedly took information.

Nevertheless, can the ministry debar disclosure of a document under a non-disclosure agreement with anybody else? The answer is not straightforward though there is no such exception enumerated in the said Act. Only concern of the mentioned law is the information must have public interest element and reasonable believe of the informant about the veracity of the information.

Section 5 of the same Act confirms legal protection for the whistleblowers including non-disclosure of identity without consent; immunity from civil criminal or departmental proceedings; no measure prejudicial to financial, mental or social reputation; prohibition of demotion, transfer for harassment, forced retirement or treat discriminatorily by employer to an employee etc. If anyone contravenes this provision, s/he shall be sentenced to imprisonment for a minimum term of two years but not exceeding five years or with fine or with both and if that person is a government employee, then departmental actions shall have to be taken apart from the mentioned punishment (S. 9).

However, anti-freedom laws like the Official Secrets Act, the DSA not only create great obstacle for journalism but also violate statutory rights of the citizen to get information and disregard the Constitutional spirit to uphold the freedom of press. These outdated and suppressing laws foster the culture of secrecy inside the bureaucracy year after year and give impunity to the wrongdoers. A democratic republic like Bangladesh whose ancestors fought for freedom must not oppress its citizen by those autocratic laws. Hence, in Mujib centenary all such provisions must be scraped down immediately to build an exploitation free society.

Published on the Daily Star on 25 May 2021