Vienna Convention on Diplomatic Relations, 1961 – Eastern Diplomatic Services Limited and others v National Board of Revenue and others (2022) 74 DLR 336 (HCD) [Writ Petition Nos. 7743, 7804, 8031 and 8072 of 2021, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 30 November 2021]

The petitioners filed the writ petition challenging the legality of the respondents developing unsecured and unencrypted web-based software by issuing the impugned order and compelling the petitioners to use it. They contended that the action violated the Customs Act, 1969, and the Rules of Business, 1996 and caused significant threat of violating the provisions of the Vienna Convention on Diplomatic Relations, 1961, as well as the Communication Technology Act, 2006, and Digital Security Act, 2018. The court delved into the issue of whether ‘the National Board of Revenue could introduce the software – Diplomatic Bond Automation System – to regulate the procedural framework of diplomatic bonded warehouses for maintaining transparency and accountability of the services rendered by the government and to provide speedy service to the concerned persons under the Customs Act.’

The court observed that sections 13, 119A, and 219B of the Customs Act do not contain provisions that empower the National Board of Revenue ‘to introduce software for regulating frameworks of the diplomatic bonded warehouses, thereby compelling the respective licensees to use the same.’ In support of this observation, the court referred to multiple newly inserted provisions via amendments in the Customs Act, the Income Tax Ordinance, 1984 (via the Finance Act), and the VAT and Supplementary Duty Act, 2012 to introduce online and electronic systems for performing certain acts and the absence of the same in the existing case. Based on these observations, the court then declared the impugned order illegal. It further held that digital systems could be introduced and imposed upon the users by inserting new provisions in the Customs Act through amendment.

Maldives-Bangladesh Bilateral Relations 2021

Bilateral Consultation between Bangladesh and Maldives, 27 November 2021, Dhaka.

Bangladesh and Maldives had their first bilateral consultation on 27 November 2021, led by the Foreign Secretaries of both countries. Acknowledging excellent relations between them, both countries committed to further strengthening bilateral ties. They emphasized the deepening of their relationship and concluded several bilateral instruments, including agreements on trade and connectivity, and tourism for enhancing people to people to contact. Maldives recognized the support which Bangladesh had extended to Maldives during the COVID-19 pandemic. It also sought support from Bangladesh for the recruitment of skilled workers and professionals.

Bilateral Agreements between Maldives and Bangladesh, 23 December 2021, Male.

Four important agreements were exchanged on 23 December between Bangladesh and Maldives on health and family welfare. The MOUs were as follows:

• MOU between the Ministry of Health, Government of the Republic of Maldives, and the Ministry of Health and Family Welfare, Government of the People’s Republic of Bangladesh, on the recruitment of qualified health professionals.

• MOU between the Ministry of Youth, Sports, and Community Empowerment of the Republic of Maldives and the Ministry of Youth and Sports of the People’s Republic of Bangladesh on cooperation in the area of youth and sports development.

• MOU between Maldives and Bangladesh for the elimination of double taxation with respect to taxes on income and the prevention of tax evasion and avoidance.

• Renewal of the MOU between the Ministry of Health, Government of the Republic of Maldives, and the Ministry of Health and Family Welfare, Government of the People’s Republic of Bangladesh, in the area of healthcare and Medical Sciences.

Nepal-Bangladesh Bilateral Relations 2021

Exchange of Letters between Nepal and Bangladesh, 22–23 March 2021, Dhaka.

Nepal and Bangladesh signed an Exchange of Letters on 22–23 March 2021 for the designation of the Rohanpur-Singhabad railway route as an additional transit route for movement of traffic-in-transit between Nepal and Bangladesh and also for third-country transit trade.

India-Bangladesh Bilateral Relations 2021

Memorandum of Understanding between India and Bangladesh, 27 March 2021, Dhaka.

India and Bangladesh signed five MOUs in different important areas, including, connectivity, commerce, information technology and sports, all of which contribute to further strengthening bilateral ties between the two nations and their efforts towards development. The five instruments include:

• MOU on disaster management, resilience and mitigation;

• MOU between Bangladesh National Cadet Corps (BNCC) and National Cadet Corps of India (INCC);

• MOU for the establishment of a framework of cooperation in the area of trade remedial measures between Bangladesh and India;

• Tripartite MOU on the establishment of sports facilities at Rajshahi College field and surrounding areas; and

• Tripartite MOU on the supply of ICT equipment, course materials, reference books, and training for Bangladesh-Bharot Digital Service & Employment and Training (BDSET) Center.

Adequate Compensation-Most Favored Nation

Bilateral Agreements/Consultation

In 2021, Bangladesh concluded Bilateral Investment Treaties (BIT s) with 29 countries, namely, Austria, Belgium-Luxembourg Economic Union, Cambodia, China, Denmark, France, Germany, India, Indonesia, Islamic Republic of Iran, Italy, Japan, Republic of Korea, Malaysia, Netherland, Democratic People’s Republic of Korea, Pakistan, Philippines, Poland, Romania, Singapore, Switzerland, Thailand, Turkey, United Arab Emirates, United Kingdom, United States of America, Uzbekistan, and Vietnam.

All BIT s signed by the Bangladesh government focus on protecting expropriation and underpinning non-discrimination and prompt, adequate compensation. The BITs also grant principles of most-favored-nation (MFN) and national treatment for post-establishment, and not for entry.

Commercial Arbitration – UNCITRAL Model Law

Gas Transmission Company Limited v Drilltec-Maxwell Joint Venture (2021) 22 ALR 31 (HCD) [Arbitration Application No. 2 of 2020, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 24 June 2021]

The petitioner filed an application invoking sections 42 and 43 of the Arbitration Act, 2001, for setting aside the arbitral awards provided by the majority decision of the arbitral tribunal to the respondents. At the onset, the court adjudicated whether it was competent to examine the merit of the awards passed by the arbitral tribunal. After a combined reading of sections 39, 42, and 43 of the Arbitration Act, the court held that the High Court Division is competent to set aside the arbitral award since this was an international commercial arbitration and the arbitral tribunal mentioned its seat to be in Dhaka. The court, however, stated that in setting aside arbitral awards, the High Court Division must ‘act within the peripheries of section 43 of the Arbitration Act, 2001.’ The court further observed that while reading the provisions of ‘clauses (a) and (b) and all the sub-clauses thereunder in section 43(1) of the Arbitration Act,’ they must be separated by ‘or’ otherwise the application of section 43 will be impossible. This is also in line with the provisions of the UNCITRAL Model Law. Thus, the court established its competence to examine the merits of the arbitral award under the abovementioned sections.

The court elaborated on whether the absence of the signature of the minority arbitrator (one) can be a ground for setting aside an arbitral award. Referring to the UNCITRAL Arbitration Rules 2010 and numerous Indian precedents, the court finally held that the absence of the signature of the third arbitrator in the majority decision could not be a ground for setting aside the arbitral award since it fully complies with the provisions in section 38(2) of the Arbitration Act. The court finally examined the merits of the arbitral award at length to conclude that due to no negligence on the petitioner’s part, let alone any misrepresentation by them, the question of compensating the respondents did not arise at all. Therefore, it set aside all awards passed by the arbitral tribunal.

At the end, the court asked the Ministry of Law, Justice and Parliamentary Affairs to consider inserting ‘or’ at the end of each clause and sub-clause of section 43(1) of the Arbitration Act. It also asked them to issue ‘official circular/directives’ to ‘different ministries to incorporate the provisions of the Arbitration Act as the rules for conducting arbitrations with foreign counterparts while executing contracts.’

Accom Travels and Tours Limited v Oman Air SAOC (2022) 27 BLC 596 (HCD) [First Appeal No. 209 of 2016, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 12 December 2021]

In this case, the majority opinion by a larger bench (consisting of 3 judges) of the High Court Division held that according to sections 3(1) and 3(2) of the Arbitration Act, 2001 (scope of the Act), no other provisions of the Arbitration Act, except sections 45 (recognition and enforcement of foreign arbitral awards), 46 (grounds for refusing recognition or execution of foreign arbitral awards.) and 47 (power of Government to declare specified state), apply to an arbitration whose seat is a foreign country. As such, sections 7 (jurisdiction of court in respect of matters covered by arbitration agreement), 7A (powers of court and High Court Division to make interim orders), and 10 (arbitrability of the dispute) do not apply to such arbitrations. The court observed that section 7A (power of the concerned courts to take interim measures) might only be invoked in such arbitrations while enforcing the foreign arbitral awards (emphasis added). It cannot be so done during the continuation of the arbitration proceedings, before, or until enforcement of the arbitral award under section 44 or 45 of the Arbitration Act.

Furthermore, the court eloquently pointed out that while there is a difference in the text of the provisions in article 1 (2) UNCITRAL Model Law and sections 3 (1) and 3(2) of the Arbitration Act, a combined reading of the entire section 3 of the Arbitration Act makes it clear that the provision is analogous to that of Article 1 (2) of the UNCITRAL Model Law. It observed that the subordinate court committed gross illegality by invoking section 7 of this Act in this particular suit. The court decided in the affirmative regarding the applicability of section 151 of the Code of Civil Procedure, 1908. It stated that by exercising its inherent power, the subordinate court should have stayed the suit and referred the parties to arbitration to resolve their dispute.

Trademark – Trips Agreement

Mirza International Ltd v Registrar, Department of Patents, Designs and Trade Mark, Dhaka and others (2022) 27 BLC 30 (HCD) [Trade Mark Appeal No. 4 of 2014, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 31 January 2021]

The appellant (engaged in the business of manufacturing, merchanting, and exporting all kinds of footwear, readymade garments and clothing, leather goods, leather garments, learner belt, headgear, and other various goods), during the pendency of his trademark (Red Tape) application in Bangladesh (filed on 11 November 2020) discovered that an exact similar trademark – Red Tape – was advertised in the Trade Marks Journal in the name of respondent No. 3. Since the appellant is the registered proprietor of the trademark – Red Tape – in India (as well as various other countries) for the same goods and description of the goods, he submitted that it is a gross violation of article 6bis of the Paris Convention and articles 16(2) and (3) of the TRIPS Agreement relating to the protection of well-known trademark. However, respondent No. 3 contended that their trademark was registered earlier on 14 June 2005.

The court observed that the appellant filed the trademark application five years after that of the respondent and that the appellant also failed to produce a single string of evidence about any person in Bangladesh importing or trading any item(s) under their trademark – Red Tape – or that they have been exporting any class of goods in Bangladesh under the said trademark. The court also elaborated on the relevant provisions in the Trademarks Act, 2009. Thus, the court observed that Article 6bis of the Paris Convention did not override any Bangladeshi law. Instead, the Convention is considered in addition to Bangladeshi laws. The court also observed that without registering its trademark in Bangladesh and without it being a well-known trademark in Bangladesh subsequently, no one could claim the benefit of article 6bis of the Paris Convention in Bangladesh.

The court opined that, in the absence of the appellant’s trademark being registered, the use of the registered trademark by respondent no. 3 is not a ‘reproduction, an imitation, or a translation, or liable to create confusion.’ The court decided that article 6bis of the Paris Convention did not apply to this appeal. However, it held that since the appellant’s trademark application is pending a final decision, they can raise their respective grievances before the Registrar of Trademarks.

Climate Change

Statement by Bangladesh at the Security Council Open Debate on the Maintenance of International Peace and Security: Climate and Security, 23 September 2021, The United Nations, New York

Referring to the IPCC Sixth Assessment Report 2020 prediction that the global temperature will cross the threshold of 2 degrees Celsius by 2100, Bangladesh flagged the potential security implications of the multifaceted risks posed by climate change. Notwithstanding the daunting forecasts, Bangladesh cautioned against the “alarmist” approach and over-securitization of the climate change discourse, not only because there was no conclusive evidence of a connection between climate change and international security, but also because it would essentially divert attention from the well-established linkage between climate change and global development as recognized by Agenda-21, the 2030-Agenda, the Paris Climate Agreement, and the Sendai Framework. The key areas of concern were as follows:

• Recognizing climate change as a threat to human security in climate-vulnerable countries, which undermine food security, water security, energy security, and livelihood security, and etc., Bangladesh observed that it was imperative to create opportunities for alternative livelihoods and encourage localized solutions to climate change induced problems, especially to prevent or minimize population displacement.

• Bangladesh emphasized the need to consider climate change impacts on sustainable livelihoods, population displacement, and socio-economic shocks with the help of a development and human security lens. In this context, Bangladesh urged the UN to draw on national and subnational sources of information for it to act appropriately.

• Bangladesh advocated that operational activities of peacekeeping missions should prioritize the “do no harm” principle in the context of climate change in order to reduce the environmental footprints of the UN peace operations in the field.

• Bangladesh maintained that the impacts of climate change might interact with other drivers of fragility to further exacerbate human security challenges. As such, prevention at the source was fundamental to supporting efforts in this context.

• Bangladesh thought it important to leverage the synergies among the peace and development actors and ensure adequate resources for climate actions in climate-vulnerable countries.

Statement by Her Excellency Sheikh Hasina, Hon’ble Prime Minister of Bangladesh at the 26th Session of the Conference of the Parties (COP26) of the United Nations Framework Convention on Climate Change (UNFCCC), 01 November 2021, Glasgow, UK.

While speaking at COP 26, the Prime Minister of Bangladesh stated that although Bangladesh contributed less than 0.47% of global emissions, it remains one of the most climate-vulnerable countries. She highlighted the various initiatives that Bangladesh has adopted to date to address this challenge. Referring to the latest IPCC report, the Prime Minister urged the major emitters to submit and implement ambitious NDCs. Seeking synergies amongst various climate finds, she called on developed countries to fulfill their commitments of providing 100 billion dollars with a 50:50 balance between adaptation & mitigation. She encouraged the developed countries to disseminate clean, green, and advanced technology to the most vulnerable developing countries at affordable costs and to address the issue of loss & damage, including global sharing of responsibility for climate migrants displaced by sea-level rise, salinity increase, river erosion, floods, and droughts.

Ocean Science and Sustainable Development – Climate Change – International Security – Oceans – Law of the Sea – UNCLOS – Marine Pollution

Statement by Bangladesh under agenda item 78: ‘Oceans and Law of the Sea,’ 76th Session of the United Nations General Assembly, 07 December 2021

Reiterating that the oceans and their resources are the lifelines of humanity, Bangladesh highlighted how oceans and the ecosystem today are under threat due to different factors, including climate change, sea-level rise, unsustainable fishing, pollution, and oil and gas extraction. The COVID-19 pandemic, which further compounded the challenges by adversely affecting the livelihoods of scores of people, particularly in developing countries. Bangladesh observed that our common future would be determined by the way we conserve, develop and tap into oceanic resources and services. In this context, Bangladesh proposed the following:

• Address the impact of climate change on oceans through integrated, collaborative actions including cross-agency action at the global level. This action has also been recognized in the recently concluded Glasgow Pact.

• Ensure a balance between the equitable and efficient utilization of ocean resources, the conservation of marine resources, and the protection and preservation of the marine environment. It is imperative to ensure an early conclusion of the BBNJ agreement.

• Enhance international cooperation to address the continued threats to maritime security, such as piracy, armed robbery, kidnapping and smuggling of migrants through sea and to comply with obligations for search and rescue at the sea, and to work towards addressing the root causes of these security threats.

• Undertake capacity building and technical support, particularly for developing states to ensure implementation of legal and policy framework for the oceans and seas. Constraints posed by the COVID-19 pandemic must be taken into account.

• Encourage and foster integrated cooperation and coordination at the international, regional and local levels, especially in support of the developing and small island states, and coastal communities in order to recover from the impacts of COVID-19 on ocean economy.

Bangladesh concluded the statement by reiterating its commitment to UNCLOS, which remains the principal instrument for all activities in the oceans and seas and calling upon all remaining States to join the Convention to achieve universal accession.

Statement by Bangladesh to the International Seabed Authority at the High Level Event of the ISA 2021 Reports on the Opportunities Offered by UNCLOS to LDCs, LLDCs and SIDS, 16 November 2021

Bangladesh observed that the LDCs are among the world’s most resource-constraint economies in the world, vulnerabilities of which have been exacerbated further due to the COVID-19 pandemic. Afflicted by extreme poverty, LDCs has experienced a drop in the growth rate from 4.8% in 2019 to 1.3% in 2020. In this context, Bangladesh underpinned the potential of the oceans and the seas to transform the lives and livelihoods of more than one billion people in the LDCs. Given that over 80% of the total number of LDCs are States Parties to the UNCLOS (i.e., 37 out of the 48 LDCs), the Convention can open up an “ocean of opportunity” for them. Bangladesh floated the following thoughts:

• Recognizing how marine scientific research and capacity building was critical for the LDCs, Bangladesh called for enhanced support for capacity building through the sharing of knowledge, expertise, and transfer of technology from advanced countries. In this context, Bangladesh proposed that ISA could support advanced and collaborative research in critical areas for sustainable, inclusive, and resource-efficient utilization of ocean resources in the LDC s.

• In view of the impacts of climate change on oceans and seas, Bangladesh maintained that it was imperative to scale up global efforts to tackle uncontrolled activities in the deep sea, especially in terms of marine pollution, and illegal and unregulated fishing.

• In order to cope with the challenges of structural transformation in the LDC s, Bangladesh emphasized the need for infrastructural investments and access to sophisticated marine technologies for the exploration of resources in the high seas. In this regard, Bangladesh lauded the efforts of the ISA in facilitating the transfer of marine technology from developed to developing countries but encouraged the scaling up of the work through strategic partnerships with the UN Technology Bank for LDC s, OHRLLS, UNCTAD and other relevant organizations.

• Bangladesh urged the creation of more space for the women and the youth of the LDCs so that they can access emerging opportunities that activities in the deep-sea, and the blue economy can offer.

Children’s Right to Health – CRC

The Bangladesh Children’s Hospital and Institute Act, 2021

The Act provides for the establishment of specialized children’s hospitals and institutes, which will replace the existing Children’s Hospital and Institute of Child Health, with the aim of expanding the scope for research and higher education to enhance children’s physical and mental health services. An executive board comprising of a cross section of professionals shall be the key decision-making body (section 6) and will be responsible for, amongst other things, policy formulation and execution, budget approval, oversight, and recruitment (section 7). In addition to the executive board, the Act provides for an academic council (section 11) to guide training and research activities of the institute and a hospital management committee (section 13) to oversee the activities of the hospital respectively. The Act has provisions that cover the recruitment process of faculty, nurses and technical personnel of the Hospital and Institute (section 14) and the course curricula of the Institute (section 15).

Policy Action towards Legislative Reform

Labour Issues – Workplace Safety and Health – Workers’ Rights – Collective Bargaining – ILO

Bangladesh adopted a National Action Plan (2021–2026) for the labor sector, based on the roadmap which Bangladesh had submitted to the ILO Governing Body as part of its commitment to uphold labor rights and workplace safety in the country. This also relates to the outcome of 9th session of the EU-Bangladesh Joint Commission held in October 2019. Specific actions in the plan would be implemented by engaging tripartite constituents and, where appropriate, with support from the International Labour Organization (ILO) and other development partners. The roadmap which informed the development the action plan contains specific actions in terms of legal and administrative reforms, the enforcement of laws, and training and promotional activities, addresses four priority areas, namely, (1) labor law reform; (2) trade union registration; (3) labor inspection and enforcement; and (4) anti-union discrimination/unfair labor practices and violence against workers.

The first progress report on the roadmap was submitted to the ILO on 30 September 2021 and was discussed at the 343rd session of the ILO Governing Body on 6 November 2021. Since its inception, a comprehensive reform process has evolved to consider amendments of particular laws to ensure proper implementation of these laws through effective institutions, such as, the labor inspectorate, dispute resolution processes and the labor courts.

Human Rights Universal Declaration of Human Rights – Freedom of Movement

Durnity Daman Commission v GB Hossain and others (2022) 74 DLR 1 (AD) [Civil Petition for Leave to Appeal Nos. 1340 of 2021, C.P. No. 1184, 1009, 605 of 2020 and 1523 of 2021, Appellate Division of the Supreme Court of Bangladesh, judgment delivered on 27 September 2021]

The Appellate Division heard and disposed of this batch of civil petitions for leave to appeals together due to common issues involving all the petitions, i.e., the fundamental right to freedom of movement under Article 36 of the Constitution of Bangladesh for individuals under investigation by the Anti-Corruption Commission. The State and the Anti-Corruption Commission submitted that the right under Article 36 is ‘subject to any reasonable restriction imposed by law in the public interest’ and the impugned orders fall within the ambits of the preamble and sections 17 and 19 of the Anti-Corruption Commission Act, 2004. Conversely, the writ-petitioner-respondents argued that the restrictions imposed upon them were devoid of being imposed by law and for the public interest. They submitted that the particular law, The Anti-Corruption Commission Act (2004), does not expressly ‘authorize the Commission to impose any embargo to move freely throughout Bangladesh, to reside and settle in any place in Bangladesh, and to leave and re-enter in Bangladesh.’ In this connection, the writ-petitioner-respondents further relied upon Article 13 of the Universal Declaration of Human Rights.

While disposing of the petitions, the court held that the right to freedom of movement is a non-absolute right, and as such, it can be restrained by laws enacted when needed in the public interest. The court further held that merely being accused in a criminal case cannot be grounds to deny someone their right to freedom of movement. Lastly, the court stated that ‘such restrictions may be imposed to prevent individuals from quickly leaving the country to avoid due process of law subject to the restrictions being confirmed by appropriate courts within three working days.’

Md. Ahsan Habib v Government of the People’s Republic of Bangladesh and others (2020) 9 LNJ 62 (HCD) [Writ Petition No. 1046 of 2021, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 14 March 2021]

The petitioner filed this writ petition challenging the legality of an Anti-Corruption Commission memo that barred him from leaving and re-entering Bangladesh and the action of Officer-in-Charge (Immigration Police), Special Branch, Hazrat Shahjalal International Airport, Kurmitola, Dhaka, and for seizing his passport since they violated his fundamental rights guaranteed in articles 27, 31, 32, 36 and 39 of the Constitution. The court tested the legality of both actions in light of the provisions in the Anti-Corruption Commission Act, 2004, the Anti-Corruption Commission Rules, 2007, and the Code of Criminal Procedure, 1898. It then ordered the return of the petitioner’s passport so he could resume his studies abroad.

The court then provided guidelines to the Anti-Corruption Commission on impounding passports and barring individuals accused of corruption from going abroad. It also directed that during the pendency of an inquiry/investigation, if the Anti-Corruption Commission bars an accused from leaving Bangladesh and seizes their passport in an emergency situation without showing cause or giving them a 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. The Senior Special Judge/Special Judge shall then notify the accused of the Anti-Corruption Commission’s application and hear both parties before ordering to approve or reject the Anti-Corruption Commission’s decision at the earliest possible time, preferably within 60 days of receiving the Anti-Corruption Commission’s application. Furthermore, the accused must submit their address, mobile number, and email to the Anti-Corruption Commission so that it can contact them for any assistance or cooperation regarding the inquiry/investigation. Failure to appear before the Anti-Corruption Commission within the stipulated time will lead to legal action against the accused.

Right to Property

Belayet Hosen v Anti-Corruption Commission and others [Writ Petition No. 1539 of 2021, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 27 June 2021]

The petitioner challenged the legality of an order by the respondent no. 3 (an official of the Anti-Corruption Commission) to freeze their bank accounts. The respondents submitted that the order was lawful according to the provisions in the Anti-Corruption Commission Act, 2004, and the Anti-Corruption Commission Rules, 2007. However, after a plain reading of rule 18 of the Anti-Corruption Commission Rules, 2007, the court concluded that ‘without the permission of the Senior Special Judge or the trial Judge, as the case may be, no one, not even the Commission, has the power to pass any order to freeze or attach or impose any restrictions regarding the property of a citizen of Bangladesh, who is alleged to have acquired them by illegal means, i.e., “crime acquired property.”’ Thus, elaborating on this provision, the court ruled in favor of the petitioner regarding the impugned order by the Anti-Corruption Commission.

Custody Of Children – CRC

Eriko Nakano v Bangladesh and others [Writ Petition No. 6592 of 2021, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 21 November 2021]

The petitioner filed a habeas corpus petition asking the court to direct the respondent to bring the minor daughters before the court to satisfy the court that the minors are not being held in custody without lawful authority or illegally. They contended that on 31 May 2021, the Family Court, Tokyo, Japan, granted the petitioner the custody of his minor daughters and ordered the respondent to hand over his minor daughters to the petitioner. However, before this verdict, the respondent brought his two daughters to Bangladesh on 18 February 2021. Suppressing the judgment by the Japanese Family Court, the respondent filed a family suit for custody of the minor daughters against the petitioner before the Family Court in Dhaka. In response to the petitioner, the respondents contended that the Japanese Family Court based its verdict on the petitioner’s one-sided story, in the absence of the opinions of the concerned minors, the respondent, and the third child (a minor too young to understand the issues) of the petitioner and the respondent. Thus, the verdict did not consider the best interest and welfare of the minors. Moreover, the minors were being kept in the father’s custody as per an ad-interim order by the Dhaka Family Court on 28 February 2021, of which the Japanese Family Court was fully aware.

The petitioner submitted that in this case, the principle of ‘comity of courts’ would apply since the custody issue has been finally adjudicated by the Japanese Family Court, keeping in mind the welfare of the minors, and that there is no scope to decide the issue afresh. He further submitted that since the minors were abducted/kidnapped by the respondent, the ‘Convention on the Civil Aspects of International Child Abduction’ will also be applicable, although Bangladesh is yet to sign/ratify the Convention. This is because, as per the decision in RMMRU v Bangladesh and others (2020) 72 DLR 420 (HCD), this Convention is part of customary international law. Lastly, he referred to Bangladeshi precedents of granting custody of minor children to their mothers. Conversely, the respondents relied upon the provisions in the Bangladesh Citizenship (Temporary Provisions) Order, 1972, the Guardians and Wards Act, 1890, the Convention on the Rights of the Child (CRC), and Islamic Jurisprudence to supplement their submission that the respondent (father and citizen of Bangladesh) should be the guardian of the minors (Bangladeshi citizens who are above seven years and therefore matured enough to form an intelligent preference and whose best interests must be taken into account).

The court ultimately rejected the petitioner’s arguments to mechanically apply the principle of ‘comity of courts’ without first considering the minors’ wellbeing and welfare. It stated that it kept in mind that the Japanese Family Court, while pronouncing the verdict in favor of the petitioner, knew about the ad-interim order (to which the petitioner did not object) of the Dhaka Family Court. Therefore, having obtained the desire and preference of the daughters and taking into account the relevant provisions of the CRC and Bangladeshi precedents and the welfare of the minors, the High Court Division ordered that the daughters be kept in the custody of the respondent (father) and granted the petitioner (mother) regular visitation rights. Furthermore, the court refrained the father from taking the daughters out of Bangladesh and imposed certain cost orders upon him regarding the travel and stay of the petitioner.

Health Care – Medical Negligence

Mirja Shahpar Jalil v The State and Others (2021) 29 BLT 169 (HCD) [Criminal Miscellaneous Case No. 26267 of 2017, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 23 February 2021]

In this case, the High Court Division adjudged under section 561A of the Code of Criminal Procedure, 1898, as to why it should not set aside the impugned order of the learned Metropolitan Sessions Judge, Dhaka, affirming the order of the learned Metropolitan Magistrate Court, Dhaka-33 of discharging the accused opposite party Nos. 2–4 in a case of medical negligence under sections 304A and 34 of the Penal Code, 1860. The complainant-petitioner had alleged that due to gross negligent treatment by the accused nos. 1–4, his daughter succumbed to death. The petitioner claimed that the brain tumor of the victim was long undetected by accused No. 1 and was subsequently wrongly and negligently mistreated by accused nos. 2–4 of which all the documentary evidence lies with him. In this regard, the accused did not perform a single MRI or CT scan on the victim.

Despite these facts, the learned Metropolitan Magistrate illegally assumed the role of the trial court in deciding whether there was negligence on the part of the opposite party nos. 2–4. This, however, was the ultimate issue under Section 304A of the Penal Code, which could only be resolved after the conclusion of the trial by assessing the evidence adduced by all the contesting parties, but not at the stage of taking cognizance. Hence, the High Court Division held that the learned Magistrate and Metropolitan Sessions Judge committed gross illegality and manifest abuse of process of the court in discharging the opposite party nos. 2–4 from the case based on the inquiry committee’s report.

During the proceedings before the High Court Division, Square Hospital Limited submitted that they followed the International Treatment Protocol in this critical case. However, the court held that it is a matter for trial, which can only be ascertained after both parties adduce evidence, not under an application under section 561A of the Code of Criminal Procedure. Moreover, it involves a disputed question of fact since the version of the petition of the complaint is entirely different.

Humanitarian Law – Sexual Violence during Conflicts – Criminal Accountability – Violence against Women – Sexual Exploitation – Corruption

Statement by Bangladesh on Agenda Item No: 79 “Criminal Accountability of the UN Officials and Experts on Missions” at the 76th Session of the United Nations General Assembly, Sixth Committee, General Assembly Hall, 12 October 2021

Referring to the various allegations, including those of sexual exploitation and abuse, corruption, fraud and other forms of misappropriation of funds, against UN officials and Experts on Missions, Bangladesh encouraged zero tolerance for these incidents in order to maintain the credibility and integrity of the United Nations and its field missions. Acknowledging the training initiatives on standards of conduct, including through pre-deployment and in-mission induction programs, and technical assistance to States in developing their domestic criminal laws, at their request, Bangladesh advocated for more investment in preventive measures by developing customized training modules for in-mission and pre-deployment training, and refresher training, including in native languages. Bangladesh noted that the standards of investigation of such crimes must be harmonized; extreme caution must be practiced to ensure confidentiality of the communications regarding allegations of misconduct to protect concerned persons from unfair stigmatization, especially when the allegations have not been proven beyond a reasonable doubt; relevant information must be shared expeditiously to facilitate effective execution of the investigations and criminal proceedings; and, utmost importance must be attached to protecting the rights of the victims.

Applicability of Foreign Criminal Law Verdict in Bangladesh

Nurun Nahar Begum v Bangladesh (2022) 74 DLR 1 (HCD) [Writ Petition No. 3994 of 2021, High Court Division of the Supreme Court of Bangladesh, judgment delivered on 8 June 2021]

A Kuwaiti criminal court convicted a member of the Bangladesh Parliament on 28 January 2021. The convicted person appealed against the decision, which was pending in the appellate court. Against this backdrop, the Bangladesh Parliament Secretariat issued a gazette notification under the Rules of Business of Parliament declaring that the convicted person was no longer a member of the Parliament of Bangladesh. The gazette notification was issued on the ground of disqualification as provided in Article 66 (2) (d), read together with article 67 (1) (d) of the Bangladesh Constitution. The court, while deciding on the standing of the parties before it to file the writ petition, held that the petitioners were not persons aggrieved to file the writ under article 102 (2) (a) (ii) of the Constitution. It thus rejected the writ petition summarily.

However, before doing so, the court held that the conviction and sentence handed down were definitely in a ‘criminal offence’ involving ‘moral turpitude.’ While articles 66 (2) (d) and 152 do not elaborate on the territory of the court, owing to the gravity of the offence and the conviction, which attracts the provisions in article 66 (2) (d), the court observed that a foreign court’s verdict on account of commission of ‘criminal offence’ will equally be applicable while disqualifying a ‘member of parliament.’ This is because a competent criminal court of a sovereign country pronounced the conviction and sentence. The convicted person got the full opportunity to defend himself and prove his innocence. Any contrary action merely due to the court being situated beyond Bangladesh’s territorial jurisdiction would be equal to disregarding a competent foreign court’s verdict.