By Ali Mashraf
2018 has been a significant year for the apex judiciary of Bangladesh. As we start in 2019, let us recap some of the remarkable pronouncements of our Supreme Court, which got law practitioners, teachers, students, researchers and scholars talking throughout the year.
Ban on the ‘two-finger test’ for rape victims
The landmark verdict came in April when the High Court Division (HCD) prohibited the ‘two-finger test’ carried out on rape victims to prove rape while disposing of a writ petition filed by six human rights organizations including BLAST and ASK. The court also asked lawyers not to ask any such questions to rape victims, which would hurt their dignity during trial proceedings.
Compensation to eye surgery victims of Chuadanga
In October, the HCD awarded compensation worth taka 1 million to each of the 17 victims who lost their eyesight following cataract surgeries at the Impact Masudul Hoque Memorial Community Health Centre, Chuadanga. It further ordered the Centre to pay for the medical bills of all 20 victims should they receive treatments in other hospitals. Furthermore, Irish Company, which provided drugs during the surgeries, will have to bear 50% of the total compensation.
Guidelines for lower court judges
In June 2018, the HCD released a set of guidelines for the lower court judges for properly dispensing with their duties. The guidelines state that Sessions Judges have to hold a judicial conference once every month to review the hurdles they face in carrying out their responsibilities and to find solutions. Moreover, the verdict also outlined how Sessions Judges should exercise their criminal revisional powers and what the conduct of District and Sessions Judges should be in the months leading to their retirement.
Rule on blood tests before marriage and dope tests before entry to government jobs
Following a PIL petition, the HCD issued a rule in November, asking the concerned authorities to respond as to why blood tests before marriage and dope tests prior to entry to government jobs should not be made mandatory. While the court is yet to reach a final verdict, the rule issued is the first step towards checking whether or not would-be brides and grooms are affected with Thalassemia and whether or not people seeking entry to government jobs are drug addicts.
Rejection of the writ on Article 70 of the Bangladesh Constitution
After an HCD bench had issued a split verdict on the legality of Art. 70, the single bench of Justice Abu Taher Md. Saifur Rahman finally passed the order on March, upholding the Article. In its reasoning, the Court observed that it could not interfere with the said provision since it has been incorporated in our original Constitution of 1972. While dismissing the writ, the Court further said that Art. 70 is a safeguard to democracy and is not inconsistent with the other Constitutional provisions.
Compensation to airport road accident victims’ families
In August, the Appellate Division upheld the HCD’s order on Jabal-e-Noor Paribahan to pay compensation worth taka 5 lacs to the families of the two students who were killed in a road accident on July 29 on Dhaka’s airport road. The accident had consequently led to nationwide protests for safe roads by thousands of school-going students earlier in July.
Rule on why lack of medical facilities in the airports should not be declared unlawful
In October 2017, a Selina Islam, whose husband died at the Hazrat Shahjalal Airport due to lack of medical support and negligence by the authority filed a writ petition to the HCD regarding the matter. The HCD in April 2018 issued the rule asking the Bangladesh Civil Aviation Authority and the Hazrat Shahjalal Airport why their failure to ensure emergency medical services, e.g. doctors, nurses, paramedics and ambulances at the airport should not be declared unlawful. While a final verdict is still pending, the writ petition is the first step towards ensuring proper and prompt medical facilities 24/7 at the airport.
Ban on mobile call rate hike and call drop charges
On December 13, 2018, following a writ petition, an HCD bench issued a ban on price hike of mobile call rates and charges levied by mobile operators on users for call drops. The court also issued a rule asking the relevant authorities to explain within four weeks as to why their failure to protect the rights of the consumers should not be declared illegal. Additionally, the court also ordered the formation of an expert committee to review the current mobile call rates and submit a report with their recommendations within the stipulated time.
Blocking of porn sites for six months
In November, an HCD bench ordered the secretaries of three ministries, BTRC and all mobile
call operators to block access to pornography sites from Bangladesh for six months. While issuing the rule, the court also asked the respondents to explain as to why gaining access to all pornography websites should not be blocked permanently from Bangladesh. The rule also sought explanation regarding attaching the national identity card (NID) number of the users in their social media accounts including Facebook, rating their age and why mobile operators should not be given directives to stop promoting and issuing lucrative short-term internet packages.
Directives on prosecution of rape cases
In April, the HCD released the full text of its verdict on a writ petition filed by five rights organizations in 2015, challenging the delay in recording the case of gang rape of a Garo girl. In the verdict, the court observed that the directives would work as guidelines till specific legislation has been promulgated to ensure protection, security, and justice for rape victims. The 18 directives, if followed diligently by the concerned authorities, will go a long way in guaranteeing safety and privacy of rape victims and starting the proceedings of rape cases without any delay.
Compensation to Rajib: the deceased victim of a road accident
On April 23, a Rajib Hossain lost his hand between two racing buses in an accident and consequently died from his injuries. Following a writ petition, the HCD ordered BRTC and Swajan Paribahan to pay compensation worth taka 10 million to his family. However, in May, the AD stayed that order and directed the HCD to form an independent and impartial committee to reveal the ones responsible for this fatal accident. The AD added that Rajib’s brothers would be compensated based on the report submitted by the probe committee. While the three-member committee submitted its report, a final verdict is still pending.
Landmark verdict on a medical negligence case
In Delwara Begum v. Dr. Md. Surman Ali, the HCD ordered the Chief Metropolitan Magistrate,
Chittagong to proceed with the case against the accused after the trial court discharged him in a case of medical negligence. In 2013, following surgery on the patient to remove piles, Dr. Ali had left a broken needle inside the body. The HCD noted in its decision that the trial court had discharged him without applying judicial mind to the materials on record, which was a violation of the mandatory provision of section 241A of the Code of Criminal Procedure. While the accused is yet to be pronounced guilty, the HCD order is indeed a stepping stone for pursuing medical negligence cases against offending medical professionals.
An abridged version of this write-up first appeared in the Law & Our Rights page of the Daily Star