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

The Worldwide Outbreak of COVID-19 and Quarantine: Personal Liberty v Public Good

 

The outbreak of novel coronavirus (COVID-19) is having serious impacts in every spare of our life across the globe. This deadly communicable disease has deep implications on legal arena as well. In this time of massive spread of COVID-19, there are some interesting debate and legal questions regarding personal liberty, public good, freedom of assembly, freedom of religion, legal rights during quarantine, barring citizens from entering into motherland etcetera. It is noticeable that few individual liberties have already been curtailed temporarily all over the earth for public good. Likely Bangladesh has taken some measures including quarantine (both institutional and home quarantine) to prevent the wide spread of novel coronavirus (nCoV). Among many other initiatives, the Directorate General of Health Services also circulates notification for public interest about the enforcement of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018 to confront this newly emerged pandemic. 

 

Albeit there are a number of legal issues, this article will remain confined in quarantine only as this is evolved as highly discussed topic at present in the country whereas many nonresident Bangladeshi citizens refused to go into quarantine who travelled from corona hotspot. Quarantine denotes a state or place of strict isolation for a well person or group of people who may have come in contact with contagious diseases to see if they become ill. Nevertheless, people who appear apparently healthy could spread this contagious pathogen without ever knowing they were carriers, which is why travelers who appear sound may still be quarantined, depending on where they are visiting from. 

 

Quarantine comes from the Italian words quaranta giorni which means 40 days. Since 14th century ships arriving in Venice from infected ports were required to rest at anchor for 40 days to guard coastal areas from plague epidemics. This custom later called quarantine. Since then, quarantines have often created a controversial vague area between public good versus personal liberty. 

 

However, in Bangladesh, according to section 5(1)(k) of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018; the Directorate General of Health Services has the power to keep anybody in quarantine or isolation only if that person is suspiciously being affected with communicable disease. Nonetheless, the Act doesn’t suggest any way to determine the said suspicion. Consequently, the directorate has no authority to keep anybody in quarantine before getting medical report or visible symptoms of nCoV under the present law. Thus, presently there is no scope of keeping an apparently healthy person in quarantine even though s/he comes from a coronavirus hotspot as it may take up to 14 days or more to reveal the symptoms. So, the mentioned Act needs to be amended to quarantine every person comes from infected place whether fit or ill.

Moreover, COVID-19 is still not included in the list of communicable diseases provided by the Communicable Diseases (Prevention, Control and Eradication) Act, 2018. Hence, authority concerned must insert novel coronavirus in the list immediately and publish an official gazette notification in this effect to take action under this Act.

Nevertheless, if there is credible suspicion that somebody is affected by a contagious disease and disregard to remain in quarantine, s/he commits crime even though that is a non-cognizable, bailable and compoundable offence but punishment for which may extend to three months imprisonment or maximum fifty thousand taka fine or with both (S. 25(2) & 28). Under section 27 of the law, the provisions of the Code of Criminal Procedure (CrPC) have to follow to file complaint, investigate, try and appeal; as a result punishment through mobile court in few occasions was legally incompatible. However, the Act is silent about whether anybody can challenge the decision of quarantine. In that case, anyone could challenge a quarantine order in the High Court Division through a writ of habeas corpus.

In the massive wake of COVID-19 pandemic and in a densely populated country like Bangladesh; quarantine is crucial to protect people from being affected and control spread in gigantic scale. Because there is no freestanding constitutional right for normal life while a pandemic endangers many people’s lives. It is also well established principle of law that a person can be confined against his/her will if the individual presents a danger to himself/herself or others or for greater good, even if the person being confined has not committed any crime.

On the contrary, it tends to be controversial because it is akin to jail time, using the coercive power of the state to tell people that they have to stay confined, even if in their own homes. At the same time, the government cannot simply confine people for arbitrary reasons, or without providing an adequate explanation or without following due process of law. If anyone is quarantined, s/he does not necessarily have a right to be released from that quarantine, but that person does have a right to demand some sort of adjudicative process to determine whether the quarantine is justified. Furthermore, quarantined people have some basic legal rights like right to be informed, right to privacy, right to food, right to get health services, right to get livable accommodation in case of institutional quarantine etcetera.

Nevertheless, COVID-19 creates a critical situation for whole humankind while we all need to sacrifice and contribute from everybody’s end to confront it jointly but not with the cost of one’s legal rights and without maintaining due process of law. 

Published on the Daily Asian Age as Op-Ed on 3 April 2020 

Published on the Daily Observer as Op-Ed on 5 April 2020 

Published on the Daily Sun on 12 April 2020 

Decriminalization of Adult Consensual Same Sex Acts: Love Wins in India and Bangladesh Still Awaits

“I am what I am,

So take me as I am”

-Johann Wolfgang von Goethe

Dipak Misra, the Chief Justice of India (CJI) has started his landmark verdict to decriminalize adult consensual same sex activities with this quotation. A five-judge bench of the Indian Supreme Court (SC) has cracked down the section 377 of the Indian Penal Code (IPC) unanimously in four different judgments on 6 September albeit the same section will still stand on the statute to deal with the ‘unnatural’ sexual offences against non-consensual sexual relationship between adults, minor and animal like sodomy and bestiality. This revolutionary judgment rewrites the history of the Indian minority LGBTQIA+ community. The century old Section 377 of the IPC, 1860 actually contains Victorian Christian morality that criminalize all sorts of sexual activities those are ‘against the order of nature’ and not penile-vaginal including homosexual and heterosexual behaviors, oral or anal sex etc.

However, the marginalized LGBTQIA+ community in India has a long history of plights and the legal battle to declare the dreaded S. 377 void begun in 1994 when ABVA, an NGO brought a petition in the Delhi High Court to scrap the S. 377 from the IPC. Afterwards, Naz Foundation filed a public interest litigation in 2001 whereas the court initially rejected that petition in 2004 although the SC ordered the High Court subsequently to hear the petition due to massive protest against the decision of the High Court. However, the Delhi High Court held in 2009 that the law is discriminatory and violates fundamental right of individual, thus found the section unconstitutional. Regrettably, it was a short-lived judgment and reversed by the apex court in 2013 while the judgment remarked the LGBTQIA+ community as ‘minuscule’ minority in India. Additionally, the SC validated the mentioned section and held that it is the parliament that can repeal the said provision not the court. Nonetheless, the review petition against this decision filed by the Naz Foundation was also dismissed by the SC in 2014. In the mean time, the SC has declared couple of milestone verdicts regarding the recognition of the transgender people as third gender and elimination of discrimination against them in 2014 and acknowledgement of the right to privacy as fundamental right under the constitution in 2017 while the court observed sexual orientation as an essential component of identity and the rights of LGBTQIA+ are real rights founded on sound constitutional doctrine. Finally, in early 2018 the SC bench led by CJI Dipak Misra sends the Naz Foundation petition to a larger bench for reconsideration and now this five-judge bench consisting of Dipak Misra, CJ; R F Nariman, J; Dr D Y Chandrachud, J; Indu Malhotra, J and A M Khanwilkar, J observed that ‘it cannot wait for a majoritarian government, if the fundamental right of the citizens are getting violated in the process’ and make it no longer illegal to love in early September this year.

However, CJI Dipak Misra opines that individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corner of the Indian constitution. He agrees with the view that a person who has come of age and has the capability to think on his/her own has a right to choose his/her life partner. No one can escape from their individuality… Look for the rainbow in every crowd, CJ Dipak Misra added and according to him denial of self-expression is like death.

It is the individual orientation, which is naturally natural, and his/her identity and the inherent dignity and choice attached to his/her being not a matter to try before the court. Justice Chandrachud has rightly pointed out that constitutional morality, not societal morality, should be the driving force for deciding the validity of Section 377 while Justice Indu Malhotra remarked that “history owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the ‘ignominy’ and ‘ostracism’ they have faced through the centuries”. They also held that homosexuality is ‘not an aberration’ but a ‘variation of sexuality’ and sexual orientation was an innate attribute of one's identity which cannot be altered.

Furthermore, the court declared its arbitral and irrational how the S. 377 criminalizes consensual sex between two adults in private. Same sex acts of intimacy require the same constitutional protection as heterosexual intimacy and it is the responsibility of the State to ensure that freedom. The court also affirmed that it is not mental disorder but something innate to a human being. The verdict also confirmed these people’s right to marry, adopt and have family. Moreover, the right to privacy and dignity as enumerated in Art. 21 of the Indian constitution and infringement of that right only because of sexual orientation is purely discriminatory. Partially struck down of the law is a move forward to return back the dignity to the citizen and honoring the individual rights and privacy that has been used to suppress innocent citizens in the last 157 years.

However, Bangladesh also has the same S. 377 in the Penal Code which stipulates whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Consequently, the members of the LGBTQIA+ community are compelled to survive under the fear of reprisal and persecution and suffered unjustified hostile discrimination only because of their inherent sexual orientation. Albeit now it is evident and recognized that sexual orientation of an individual is natural and part of a range of human sexuality which is not under the control of anyone.  Hence it is the individual who will decide whom s/he will love not the law.

Nonetheless, equality, dignity, privacy, non-discrimination etc. are guaranteed by the Bangladesh constitution like India whereas the State cannot do discrimination on the ground of race, sex, color, place of birth, religion under the constitutional obligation. Moreover, the State should not interfere in individual’s personal choice and right to privacy. Thus no one can be penalized only on the ground of their sexual identity.

However, there is no large-scale movement against this archaic law in Bangladesh due to many reasons including fundamentalism, threat to life, limited freedom of expression on this issue, social taboo, cultural stigma, religious restriction etc. Prominent LGBTQI+ rights activist Xulhas Mannan and Mahbub Tonoy were being killed in 2016 and many activists are being threated by the fundamentalis.  

Nevertheless, unlike India the law has never been challenged before the court in Bangladesh whereas it clearly violates the fundamental rights of equality, non-discrimination, right to life, privacy enumerated in the Articles 27, 28, 32, 39, 43 of the constitution. Sexually minority members are also entitled to full autonomy over the most intimate decisions relating to their personal life, including the choice of their partners and such choices must be protected under Art. 32 as the right to life and personal liberty would encompass the right to sexual autonomy as well.

However, the independent Bangladesh has completely failed to ensure equality of the LGBTQIA+ people like other majority heterosexual people to lead a dignified private life without fear of persecution. Hence the exemplary decision of the Indian constitutional court brings a golden opportunity for Bangladesh as well to test the constitutionality of the controversial S. 377 as the constitutional rights and principles are identical between these countries. Bangladeshi judiciary should adopt the transformative constitutional approach and progressiveness to interpret the constitution to uphold the right of an underprivileged group and to ensure equality.

Published on the Law & Our Rights page of the Daily Star on 11 September 2018 at page 12.

Why Not a Law for Bangladeshi Transgenders'?

The Pakistani National Assembly has recently taken an incredibly historical decision by enacting the Transgender Persons (Protection of Rights) Act. This is a unique piece of legislation by which the legislators of Pakistan not only guarantee basic rights of the transgender people for the first time but also outlawing discrimination against them.

However, traditionally the exploitations against the transgender community in Bangladesh are not different from Pakistan. The saga of plights got legal status back in colonial period by the introduction of the Criminal Tribes Act 1871 which tagged the transgender people as genetically criminal. Consequently, it condemned their individual dignity and humbling them in social echelons which eventually encouraged their family to repudiate them. As a result, they started to do prostitution, blackmailing and other illegal means of earning for their survival what they are still doing to some extent in our present society. However, the mentioned enactment repealed in 1949 although their livelihood, discrimination, neglect and oppression remain the same in this land.

However, Pakistan’s journey towards the official protection of the rights of the trans and criminalizing discrimination against them commenced in 2009 by the landmark Dr.  Mohammad Aslam Khaki and another v Senior Superintendent of Police (Operation) Rawalpindi and Others case. In the verdict, the Supreme Court of Pakistan had ordered the government to take effective measures to ensure the basic rights including the right to education, inheritance, vote, marriage, registration of identity etc. for the transsexuals as the other citizens of the country enjoy usually. Consequently, senator Zaheer-Ud-Din-Babar Awan brought a private member’s bill to safeguard the basic rights of the transgender persons to the parliament in 2017.

The newly introduced Act shows courage to accept the right to inheritance by the transgender person which was often disputed under some debated religious interpretation and now finally they can claim their share of property from their ancestor according to their own perceived gender identity. This provision has resolved a major issue to hold property from their family which will ultimately make them financially solvent and builds a relationship with the family.

The said law also allows the right to self-identity as male, female or a blend of both or neither and to have that identity in official documents like passport, national ID etc. as well and the Act describes ‘a person's innermost and individual sense of self as male, female or a blend of both, or neither; that can correspond or not to the sex assigned at birth’. Furthermore, it confirms their voting right in all national, provincial and local elections.

Contrarily, it forbids all sorts of discrimination against transgender persons in educational institutions, occupation, transportation service provider, employment, access to public amenities, residence, health care, movement, public office and custody. Moreover, this piece of legislation ensures fair and equal opportunity in all public and private employment and prohibits discrimination on the ground of gender identity only. Additionally, it obliges all establishments to appoint an officer to address the grievance(s) raised by trans people.

Further, the Transgender Persons (Protection of Rights) Act has provision on access to proper medical care and review of medical curriculum regarding the transgender and inclusive education, scope of self-employment and vocational training for this community. Also, it obliges the government to rescue, protect rehabilitate and build safe house for trans person who feels at risk and give psychological counseling to those who require it. In addition, it says to arrange separate room in jail for trans offender. Nevertheless, this Act also stipulates punishment for sexual and physical violence against the transgenders’, denial of access to public places, forceful eviction of from living place, endangering the life, health and safety etc. of a trans person.

However, being a sexual minority community, the legal position of the transgender community is highly vulnerable in Bangladesh although they have been added in the voter list since 2009 and in 2013 the government has recognized them as ‘third gender’ category. Also, they are eligible to get passport according to their third gender identity. Nevertheless, the tag ‘third gender’ is objectionable as it denotes men as first and female as the second category and creates superiority and inferiority among the gender. We often listen allegation from the trans that they are being denied getting access from many public places like public toilets, schools, hospitals etc. due to their sexual identity. They are facing endless harassments in their daily life that even do not conclude after their death while they are being refused to bury in the same graveyard with other people.

The trans person in Bangladesh still cannot imagine their right to get parental property as there exist misleading interpretation of religious rule regarding the distribution of property and adverse interest of their socially established co-sharers. While Pakistan being a more conservative society than Bangladesh take such an illustrative initiative to eliminate discrimination and ensure equality there astonishingly Bangladesh remains silent about the just rights of the transgender community as a citizen in the country.

Albeit the exemplary initiative has been taken by the Pakistani MPs is appreciating yet they have scopes to do more for the trans such as the right to religious beliefs of the transgender person, right to marriage and family etc. are not yet settled by the present law. Nonetheless, Bangladesh should not wait more to protect the basic rights of this marginal community whereas the Constitution of the land guarantees 'equality before law' and 'equal protection of law' under article 27 and prohibits any discrimination only on the grounds of sex, gender, race, place of birth, religion etc. under article 28.

Hence, Bangladesh should enact a holistic piece of legislation giving full equality, freedom and rights of the transgender people and criminalize all kinds of discrimination and exploitation against them. We dream such a Sonar Bangla where everybody would be treated as equal and none would be subject to any kind of social exploitation. Therefore, if Bangladesh observes indefinite silence to eliminate curse from this community that would be a great shame as a nation for all of us.

Published on The Independent as Op-ed on 21 June 2018 at page 7.
Published on the Daily Observer as Sub-editorial on 21 June 2018 at page 6.
Published on the daily Sangbad as a Sub-editorial on 2 July 2018 at page 6.
Published on the Friday Times (Pakistan) on 13 July 2018.

In Quest of an Energy Justice Framework for Bangladesh

Energy Justice is a new concept that is being used in the academia around the globe over the last decade. Although there is no universal single definition, but energy justice evolved with an object to ensure universal access to a safe, affordable and sustainable energy for all individuals, across all areas and to protect from disproportionate share of costs or negative impacts relating to building, operating and maintaining electric power generation, transmission, distribution system and to ensure equitable access to benefits from each system. Nonetheless, representative and impartial involvement of the citizens with the energy related decision-making process is another crucial aspect of energy justice.

However, the idea of energy justice basically comes out from the concept of social justice and environmental justice. According to earlier ideas, energy justice carries three core tenets which were popularly referred as triumvirate of tenets, focusing distributional, procedural and recognition justice whereas subsequent principle-based approach to energy justice developed eight core principles: 1. the availability principle urges to have sufficient modern energy resources; 2. the affordability principle argues that all people, including the poor, should get energy in reasonable price and should not pay no more than 10% of their income for energy services; 3. the due process principle requires the countries to follow the rule of law and human rights in their production and use of energy; 4. the good governance principle implies that all people should have access to all information regarding energy and environment, and citizens must have participation to fair, transparent, and accountable forms of energy decision-making process; 5. the sustainability principle is an obligation on the state to ensure long-term sustainable energy development with prudent management and to confirm sustainable use and sovereign rights over natural resources; 6. the intragenerational equity principle is a principle which emphasizes that people have the right to fairly access a certain set of minimal energy services enabling them to enjoy a basic minimum of wellbeing; 7. the intergenerational equity principle suggests future generations have a right to enjoy a good life undisturbed by the damage our energy systems inflict on the world today; and finally, 8. the responsibility principle refers to all nations’ duty to protect the natural environment and its sustainability as well as diminish energy-related environmental threats.

Nevertheless, being a developing country, maintaining balance among the energy triangle i.e. energy equity, environmental sustainability and energy security is the major challenge for Bangladesh where both the economy and demand for energy are growing simultaneously and rapidly. Hence Bangladesh is in such a tricky situation in the context of the present world while the globe is committed to reduce the greenhouse gas emission significantly in coming years whereas it must confirm affordable and continuous supply of power to boost up its current economic growth in one hand and safeguard sustainable development on the other hand.

To ensure this, Bangladesh cannot be fully dependent on its own natural resources like coal and gas to produce electricity as these are emitting massive amount of CO2. Furthermore, the current gas reserves of Bangladesh are not sufficient for industrialization and power generation concurrently. Consequently, it becomes heavyily reliant on importation of coal, oil and gas from overseas which again create threat to supply and national security as well where the global reserves are also reducing quickly. Alternatively, Bangladesh can concentrate on renewable and ecofriendly sources of energy like solar, wind, biomass, thermal, hydro power, geothermal etc. but again those are not cheap like the traditional burning fossil fuels. Thus, Bangladesh needs a comprehensive energy justice framework concentrating on all the eight principles to safeguard sustainable development towards the real ‘Sonar Bangla’.

Conversely, construction of a power plant beside a biodiversity hotspot is a clear threat to the eco system. Decisions on where to build nuclear waste repositories may raise severe concerns over the health and agriculture of the marginal rural communities. Moreover, forceful eviction of local community including the indigenous people or acquisition of land without proper consultation, compensation, participation or giving full information will definitely do injustice with them. Moreover, disproportionate distribution of renewable energy sources, such as wind and solar energy, may require re-thinking the distribution of energy costs and subsidies in societies that play host to high levels of social stratification and division. For example, a transition to renewable energy systems may deprive low-income households of meeting basic energy demand, due to increasingly higher prices as the costs of subsidies are passed on to consumers.

Albeit Bangladesh has recently legislated new law and policy focusing on the renewable sources of energy and already constituted the Sustainable and Renewable Energy Development Authority to accelerate the process but still it produces about 90% of its electricity from fossils while the internal reserves are finishing quickly. Additionally, the price of power becomes so high for low income people in last couple of years. There is also major lack of due process and good governance in energy sector all over the country which ultimately obstruct sustainable development for the nation. Absence of informed decision and consent in most of the energy project further makes it more difficult for the native to know their benefits and burdens, and the intention of the corporate entities. Nonetheless, better representation of different marginal and ethnic groups in energy policymaking institutions potentially offers a more proactive approach in achieving justice.

However, energy justice emphases on inequalities within energy systems and transitions and advocates for the equitable sharing of both the benefits and burdens of energy system services and for more inclusive decision-making processes. It can also be used as a framework to identify when, where, and how injustices occur within energy systems and how these injustices can be eliminated. Therefore, implementing all aspects of energy justice holistically is the most convenient way to resolve the long-rooted energy trilemma for Bangladesh.

Published as Sub-editorial on the Daily Sun on 26 May 2018 at page 6.

Published on the Energy Bangla on 25 may 2018.

Published on the Energy News BD on 25 may 2018.
Published as lead Sub-editorial on the daily New Age on 27 May 2018 at page 8.
Published as a Subject of the day (Op-ed) on The Independent on 31 May 2018 at page 7.