By Ali Mashraf
This write-up curates ten notable pronouncements by the Appellate Division (AD) and the High Court Division (HCD) of the Supreme Court of Bangladesh in 2021.
1. Declaring illegal the Anti-Corruption Commission’s (ACC) whimsical freezing of anyone’s assets
In June, one Belayet Hosen challenged the legality of an ACC official’s order to freeze his bank accounts. After hearing the parties, HCD observed that Rule 18 of the ACC Rules, 2007 strictly outlined the procedure to freeze any ‘crime acquired property.’ ACC officials must first seek the concerned court’s permission to freeze/attach such properties. ACC can only take subsequent steps after the concerned court is prima-facie satisfied with the application and passes a similar order. Thus, HCD declared the ACC official’s impugned action illegal.
2. Ordering all Family Courts (FC) to dispose of children’s guardianship and custody matters within six months of filing such suits
While hearing a writ petition on the custody of a minor child, HCD noted that there had been a sudden rise in filing habeas corpus petitions to HCD on the question of children’s guardianship. It observed that no legal scope lies to determine children’s guardianship in habeas corpus petitions; this is the subject matter of FC. It then remarked that litigants were nevertheless approaching HCD for the following reasons: pendency of suits in FC for extensive periods and parties not abiding by FC’s decisions granting parents the right to meet with their children. Thus, exercising its power under Article 109 of the Constitution, HCD directed all FC to dispose of children’s guardianship and custody matters within six months of filing such suits. Furthermore, it observed that the fine prescribed in section 19 of the Family Courts Ordinance, 1985 (FCO) is too little in the present-day context. Hence, HCD urged the Government’s relevant Ministry to make this provision stricter to curb contempt of FC’s decisions.
3. Making submission of identity documents mandatory for filing criminal cases
Md Akramul Ahsan Kanchan (a businessman and resident of Shantibagh) filed a writ petition to HCD sharing his plight of spending 1465 days in jail in 20 baseless cases filed in 13 districts across the country. He asked the court to investigate the identity of the persons involved in filing these baseless cases. Following a preliminary hearing, HCD directed the Criminal Investigation Department of the police to identify the person involved in this incident, take legal actions against them and report the progress to HCD within 60 days. It further asked the concerned authorities to take the necessary steps to ascertain the identity of individuals filing criminal cases to curb false and vexatious cases. HCD directed individuals to mandatorily submit their national ID or passport numbers while lodging criminal cases in police stations and courts.
4. Ordering to stop collecting 15% income tax from private universities temporarily
In 2007, a National Board of Revenue’s (NBR) gazette notification imposed 15% income tax on private universities effective from 1 July 2007. Afterward, on 1 July 2020, it similarly imposed 15% income tax on private educational institutions (private universities, medical, dental, engineering colleges, ICT institutes, etc.) When private universities challenged this notification in 2016, HCD declared 15% income tax on private universities illegal. It further ordered the Government to refund the money realized under the notification to the private universities. The Government then challenged HCD’s order to the AD in 2021. AD allowed the Government to file the leave-to-appeal petition but ordered NBR to refrain from demanding or collecting tax until further notice. However, it stayed HCD’s order of refunding the tax money to private universities.
5. Granting copyright of the books in Masud Rana-Kuasha series to Sheikh Abdul Hakim
In 2019, the now-deceased Sheikh Abdul Hakim, the ghostwriter of the famous Masud Rana and Kuasha series, filed a complaint to the Bangladesh Copyright Office (BCO) alleging violation of sections 71 and 89 of the Copyright Act, 2000 against Sheba Prokashoni’s owner and the series’ initial author, Kazi Anwar Hossain. Afterward, in 2020, BCO granted the copyright of 260 books in the Masud Rana series and 50 books in the Kuasha series to Mr. Hakim. Mr. Hossain then filed a writ petition to HCD challenging this order. After hearing the parties, HCD dismissed the writ and upheld BCO’s decision conferring the copyright of these 310 books to Mr. Hakim posthumously.
6. Declaring inapplicable the provision of power of attorney (PoA) in FC proceedings
In a family suit on dower and maintenance of children, the plaintiff (woman) challenged the respondent’s (her ex-husband and an expatriate) act of delegating PoA to his relative to fight the case on his behalf. She submitted that FCO has no provision for delegating PoA in family suits. FC then gave an order rejecting the PoA. The Sylhet District Judge’s Court also dismissed the respondent’s appeal against the above decision. Meanwhile, the respondent filed a revision petition before HCD against this decision. The Chief Justice formed a larger bench of HCD to hear this matter. The bench appointed four senior lawyers as amicus curiae. HCD first held that while FCO only mandated the application of sections 10 and 11 of the Code of Civil Procedure, 1908, there was no bar in applying section 115 in family suits to exercise its revisional jurisdiction. Afterward, HCD held that a party could not delegate PoA to another person in their absence in FC proceedings.
7. Providing guidelines to ACC on impounding passports and barring individuals accused of corruption from going abroad in emergency situations
In a writ petition filed by one Ahsan Habib challenging an ACC memo barring him from leaving and re-entering Bangladesh and seizing his passport, HCD provided guidelines to ACC on the procedure of impounding passports and barring individuals accused of corruption from going abroad. HCD directed that during the pendency of an inquiry/investigation, if ACC bars an accused from leaving Bangladesh and seizes their passport in an emergency situation without showing cause or giving them a chance of hearing, it must seek post-approval of the Senior Special Judge/Special Judge for such an act at the earliest possible time, preferably within 15 days of the act. The Senior Special Judge/Special Judge shall then notify the accused of ACC’s application and hear both parties on the matter before ordering to approve or reject ACC’s decision at the earliest possible time, preferably within 60 days of receiving ACC’s application. The accused must submit their address, mobile number, and email to ACC so that ACC can contact them for any assistance or cooperation regarding the inquiry/investigation. Lastly, failure to appear before ACC within the stipulated reasonable time will lead to legal actions against the accused.
8. Directing to introduce biometric registration of prisoners
When the Police Bureau of Investigation had issued an arrest warrant against one Zahir Uddin, instead of the real accused in the case, Modasser Ansari, Zahir learned that Modasser had impersonated him earlier to secure bail in the case and go into hiding. Zahir then filed a writ petition challenging the legality of the arrest warrant. After hearing the petition, HCD declared the arrest warrant against Zahir illegal. Furthermore, it gave the concerned authorities three directions on prisoners’ biometric registration to capture the real perpetrators and prevent arresting innocent people. Firstly, the police should record the accused’s fingerprints, palm prints, and iris scans in police stations. Secondly, the police should take full-face mugshots of the accused after arrests and preserve these photographs. Thirdly, the Government should introduce a biometric information collection system in all prisons across Bangladesh by collecting fingerprints, palm prints, and iris scans.
9. Banning harmful games and applications for three months
In June, rights organization Law and Life Foundation sent a legal notice to the Government seeking a ban on dangerous online games and social media-based mobile applications such as TikTok, PUBG, Free Fire, Bigo Live, and Likee. They submitted that Bangladeshi youths were addicted to these platforms and, consequently, involved in violence and unethical activities. This negatively affected their education and Bangladeshi social values and culture. After receiving no response from the Government, the petitioners filed a writ petition to HCD. During the hearing in August, HCD ordered the Government to ban all types of violent games and applications, including the ones mentioned above, for the next three months. It also asked the concerned authorities to explain why it should not declare their inaction to ban such harmful games and applications as illegal. HCD is yet to dispose of the writ.
10. Ruling to form an independent commission for investigating alleged crimes against law enforcement officials
102 lawyers jointly filed a writ petition seeking the formation of an independent commission to investigate complaints against law enforcement officials. They submitted that from January 2007 to June 2021, newspapers reported 584 complaints against law enforcement officials, a growing trend in Bangladesh. Furthermore, Pakistan, Malaysia, Australia, Canada, and numerous provinces in India and counties in the United Kingdom formed such a commission according to the mandate of seven major United Nations Conventions. Thus, being a signatory to these Conventions and owing to a rise in allegations against law enforcement officials, Bangladesh too should form such an independent investigation body. In opposing the petition, the Government submitted how citizens could file complaints against police in the Inspector General of Police’s complaint cell. It also noted the enactment of the Torture and Custodial Death (Prevention) Act, 2013 to prosecute law enforcement officials in custodial torture and death cases. HCD then issued a rule asking the concerned authorities to explain why they should not establish an independent commission to facilitate aggrieved persons to lodge complaints against alleged crimes and corruption of police and other law enforcement officials. HCD is yet to dispose of the writ.
The writer is the Program Officer, South Asia of iProbono.
An abridged version of this article first appeared in the Daily Star.