This write-up curates the notable pronouncements of the Appellate Division (AD) and the High Court Division (HCD) of the Supreme Court of Bangladesh in 2021.
Declaring illegal the Anti-Corruption Commission (ACC)’s 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, the HCD observed that Rule 18 of the ACC Rules, 2007 strictly outlined the procedure to freeze any ‘crime acquired property.’ The ACC officials must first seek the concerned court’s permission to freeze/attach such properties. The ACC can only take subsequent steps after the concerned court is prima-facie satisfied with the application and passes a similar order. Thus, the HCD declared the ACC official’s impugned action illegal.
Ordering all Family Courts (FCs) 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, the HCD noted that there had been a sudden rise in filing habeas corpus petitions to the HCD on the question of children’s guardianship. It observed that no legal scope lies to determine children’s guardianship in habeas corpus petitions; it is the subject matter of the FCs. It then remarked that litigants were nevertheless approaching the HCD for the following reasons: pendency of suits in the FCs for extensive periods and parties not abiding by the FCs’ decisions granting parents the right to meet with their children. Thus, exercising its power under Article 109 of the Constitution, the HCD directed all the FCs 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 is too little in the present-day context. Hence, the HCD urged the Government’s relevant Ministry to make this provision stricter to curb contempt of the FCs’ decisions.
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 the 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, the 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 the 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. The HCD directed individuals to mandatorily submit their national ID or passport numbers while lodging criminal cases in police stations and courts.
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, the 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 the HCD’s order to the AD in 2021. The AD allowed the Government to file the leave-to-appeal petition but ordered the NBR to refrain from demanding or collecting tax until further notice. However, it stayed the HCD’s order of refunding the tax money to private universities.
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, the 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 the HCD challenging this order. After hearing the parties, the HCD dismissed the writ and upheld the BCO’s decision conferring the copyright of these 310 books to Mr. Hakim posthumously.
Banning harmful games and applications for three months
In June, rights organisation 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 the HCD. During the hearing in August, the 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. The HCD is yet to dispose of the writ.
Ordering to form 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 UN 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. The 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. The HCD is yet to dispose of the writ.
THE WRITER IS THE PROGRAM OFFICER, SOUTH ASIA OF IPROBONO.
বিদেশি নিরাপত্তা বাহিনীতে মার্কিন অর্থায়ন নিয়ন্ত্রণ সংক্রান্ত লিহি আইনের বিষয়ে সিদ্ধান্ত জানাতে আরও সময় চেয়েছে বাংলাদেশ।
