History and Theoretical Approach of Bangladesh in International Law

Public International Law – Customary International Law – Opinio Juris

State v. Omit Hasan 75 DLR (AD) 113 [Criminal Petition for Leave to Appeal No. 380 of 2022, Appellate Division of the Supreme Court of Bangladesh, Judgment Delivered on 31 August 2022]

In this case, the court has referred to the ‘opinio juris’ under customary international law. The accused respondent, against whom a charge was framed under section 4/6 of the Arms Act 1878, filed a bail petition before the trial Court – Special Tribunal 5 of Mymensingh. But the tribunal rejected the bail petition. Against the rejection order, the accused made an appeal to the High Court Division (HCD). The HCD granted the bail by an ad-interim order on 16 February 2022. Thereafter, a petition for staying the order was filed before the AD. On 28 February 2022, the learned Judge-in-Chamber, AD stayed the impugned judgment and order of the HCD for 6 (six) weeks and directed that a regular leave petition be filed within that time. Then, the petitioner filed a regular petition along with a petition for an extension of stay on 22 March 2022, which is well within six weeks. Conventionally, it is a general rule of custom or usage practiced by the AD that if there is any pending petition and the petitioner files any application within the stipulated time for the extension of the stay order passed by the chamber judge is regarded as the continuation of the stay order. Such an order could be termed a ‘prohibitory order’. As a result, the HCD couldn’t proceed with the case that was stayed by the AD. However, the HCD surprisingly allowed a non-prosecution petition filed by the accused on 27 June 2022 ignoring the prohibitory order. The AD, by citing 44 DLR 219, reiterated that ‘where there is a prohibiting order of the higher court, the subordinate courts thereto are bound not to proceed with the case.’ Further, the AD held that the general practice or custom mentioned above has been followed as legally binding by the concerned stakeholders. Thus, the practice has passed the test of ‘opinio juris’ and attained the strength of law. The concept of ‘opinio juris’ in customary international law implies that the custom or usage must be accepted as law. Likewise, the practice of AD is followed in such a way that seems to be legally binding. Thus, the subordinate courts of the Appellate Division could not make any decision on the matters stayed by the AD since it is deemed to be a legal obligation of such courts. Thus, the concept of ‘opinio juris’ has been utilized regarding a general practice of the Supreme Court of Bangladesh.

Disaster Management – Resilience – Prevention

International Relations and Cooperation

Bangladesh and China Signed an MoU on the Plan of Special Assistance of Disaster Prevention and Reduction, 7 August 2022, Dhaka

Bangladesh and China signed a Memorandum of Understanding (MoU) concerning assistance for disaster prevention and reduction during the Chinese State Councilor and Foreign Minister Wang Yi’s visit to Bangladesh. According to the MoU, the two countries would collaborate to improve the capacity of the Bangladesh Government to manage disasters in terms of both prevention and reduction of disasters and to enhance social and public awareness about the issue. The MoU will be in force from 2022 to 2027. The key components of the MoU include the construction of the Bangladesh National Emergency Operation Center, training programmes to build/reinforce disaster prevention and management capabilities of concerned government officials, technicians and the community, and assistance in formulating disaster prevention plans.

Political, Economic and Cultural Rights – Climate Change – Environment Protection – Food Security

Bangladesh and the Gulf Cooperation Council (GCC) Signed an MoU on Political, Economic, and Cultural Cooperation, 19 November 2022, Bahrain

Bangladesh and the Gulf Cooperation Council (GCC) signed an MoU to further political, economic, and cultural cooperation between the two parties. According to the MoU, both sides will engage in political, economic, and cultural collaboration, with a focus on people-to-people contact, climate change, agriculture, food security, and environmental protection. The MoU will serve as a legal framework for cooperation between Bangladesh and GCC.

Defence Cooperation

Bangladesh and Qatar Signed an MoU on Mutual Cooperation in the Defence Sector, 26 October 2022, Doha

Bangladesh and Qatar signed an MoU to strengthen defence cooperation between the two countries. Signed as part of continuing efforts to enhance cooperation in new and emerging areas of bilateral relations between Bangladesh and Qatar, this initiative is expected to foster cordial and brotherly relations between the two countries.

Digitalising Immigration and Border Control/Procedures

Bangladesh and the United Arab Emirates (UAE) Signed an MoU on e-Visa, 18 October 2022, Dhaka

Bangladesh and the UAE signed an MoU to implement the e-Visa, signaling a significant step towards digitalizing Bangladesh and strengthening the use of digital technology. This also marks a positive development in the bilateral relations between the two countries.

Bangladesh and the Global Alliance for Trade Facilitation (the Alliance) Signed an MoU on Technical Cooperation for Digitalising Border Procedures, 20 June 2022, Dhaka

The MoU between Bangladesh and the Global Alliance for Trade Facilitation (the Alliance) on streamlining border processes essentially reflects Bangladesh’s commitment to execute its obligations under the WTO Trade Facilitation Agreement. Under the MoU, the alliance will provide Bangladesh with technical cooperation for digitalising border procedures at the Bhomra Land Port after evaluating the current manual, paper-based system to determine the most suitable solutions before supporting the introduction of new IT systems to automate port procedures. The Alliance will prepare a roadmap outlining the digitalisation process and will work with public and private sector users to coordinate the new procedures. The project will target a range of border procedures for digitalisation and the capacity building of the relevant stakeholders. Additionally, it will explore the potential for introducing e-payment options, such as inter-bank- transfers and payment using mobile apps.

This initiative is expected to cut down the average clearing time at the Bhomra Port by half. The introduction of e-payment options to facilitate transactions outside of normal business hours would potentially save more time and costs. By helping to train users of the new services, the Alliance will focus on improving the working environment for micro, small and medium-sized enterprises (MSME s), many of them women-owned, but who are under-represented in both the public and private sectors at the land ports.

Bangladesh and Serbia Signed an MoU on Foreign Office Consultations and an Agreement on Visa Waiver, 26 May 2022, Dhaka

The Serbian Foreign Minister visited Bangladesh on 24–26 May 2022 to mark the 50 years of diplomatic relations between the two countries. The bilateral meeting was followed by a signing ceremony where the two countries signed a Memorandum of Understanding on Foreign Office Consultations and an Agreement on Visa Waiver for the holders of Official and Diplomatic Passports. Additionally, the bilateral meeting emphasised an increase in bilateral trade, scholarships for diplomats, climate investment, and initiatives to ease visa issuance so that more Bangladeshi nationals can work in Serbia.

Diplomatic Skills Development

Bangladesh and Mexico Signed an MoU on Strengthening Bilateral Diplomatic Relations, 17 February 2022, Mexico City

The Foreign Service Academies of Bangladesh and Mexico signed a Memorandum of Understanding on bilateral diplomatic cooperation, adding a new dimension to the existing bilateral relations between the two nations. Under the MoU, both countries will undertake joint efforts to enhance the skills of the young diplomats, exchange lecturers and resource persons, and share relevant information and publications. It is also anticipated that this initiative will provide an opportunity for probationer Bangladeshi diplomats to sharpen their language skills by learning the Spanish language in Mexico.

Water Resources – Scientific and Technological Cooperation

Bangladesh and India Signed 7 MoUs/Agreements, 6 September 2022, New Delhi

Bangladesh and India inked several MoUs in key areas of water resources, capacity building, railways, science and technologies, the withdrawal of water by India and Bangladesh from the common border river Kushiyara, capacity building of the Bangladesh Railway personnel in India, and collaboration in strengthening IT systems, such as introducing FOIS and other IT applications for the Bangladesh Railways. Other agreements aimed at the capacity development of Bangladeshi Judicial Officers in India, scientific and technological cooperation and cooperation in the areas of Space Technology.

Workers’ Rights – Safe Migration – Labor Market

Bangladesh and Greece Signed an MoU on the Labor Market, 9 February 2022, Dhaka

Bangladesh and Greece inked an MoU to open up the Greek labor market for prospective workers from Bangladesh. This is the first of its kind regarding a cooperation framework between Bangladesh and one of the EU countries aimed at paving the way for ‘regular, safe and orderly’ migration. The signing of the MoU was preceded by the signing of a Declaration of Intent (DoI) between Bangladesh and Greece during the visit of the Bangladeshi Minister of Expatriates’ Welfare and Overseas Employment to Athens on 29 November 2021.

Sustainable Development – Inclusive Governance – Gender Equality

Bangladesh and the United Nations Country Team (UNCT) Signed the 2022–2026 United Nations Sustainable Development Cooperation Framework (UNSDCF)

The signing of the UNSDCF signified an important trajectory in Bangladesh’s development journey. Guided by the development requirements of the government, the multi-sectoral and cross-cutting nature of the Sustainable Development Goals, and the outcomes of the consultative processes, the UNSDCF articulates five Strategic Priority Areas for engagement: (i) inclusive and sustainable economic development; (ii) equitable human development and well-being; (iii) sustainable, resilient and healthy environment; (iv) transformative, participatory and inclusive governance; and (v) gender equality and eliminating gender-based violence. Based on these strategic priorities and upholding the principles of human rights, gender equality and women’s empowerment, resilience, and accountability, and ensuring that “no one is left behind”, the United Nations will support Bangladesh to accelerate inclusive, equitable, and sustainable human, social, economic, and environmental development.

Statements at the United Nations – LDC s – Development Cooperation – SDG s

Statement by Bangladesh on Behalf of the Co-Chairs of the LDC5 Preparatory Committee, Bangladesh and Canada at the First Part of the LDC5 Conference, 17 March 2022, General Assembly, United Nations, New York

Drawing attention to the just-adopted Doha Programme of Action for the LDC s (DPOA) for the decade 2022–2031, Bangladesh emphasized that the DPOA, an ambitious and comprehensive outcome document, laid out a well-defined action agenda for LDC s and their development partners. Bangladesh appreciated the support of the development partners who supported a number of the key deliverables including an Online University; an International Investment Support Centre; Food Stockholding; and a Sustainable Graduation Support Facility. The LDC s also committed to promoting good governance, the rule of law, building institutions and ensuring the empowerment of women and girls. Bangladesh maintained that if these targets can be met by concerned parties, it would induce transformative changes in the lives and livelihoods of the people in the LDC s. Recognizing the comprehensive follow-up and monitoring mechanism of the DPOA, Bangladesh urged the development partners, the UN system, countries of the south, the private sector, and CSO s to leverage this and implement their respective commitments towards the implementation of the DPOA. Bangladesh also urged the UN agencies, Funds and Programs to prioritize and integrate the DPOA in their Strategic Plans and country programs to support LDC s to achieve the Sustainable Development Goals.

Hostilities – International Peace and Security – Sovereignty – Humanitarian Assistance – Peaceful Settlement of Dispute

Statement by Bangladesh at the Emergency Special Session of the UNGA on Ukraine Crisis, 01 March 2022, GA Hall, UNHQ

Expressing grave concern over hostilities in Ukraine, Bangladesh called for immediate cessation of the ongoing military operations in the territory. Disturbed by the suffering of innocent civilians, Bangladesh urged the parties to ensure the safe delivery of humanitarian assistance to the people in need, and safe passage to the civilians, including foreign nationals fleeing conflict in Ukraine. It reiterated state obligations under the UN Charter regarding the prohibition of the use of force, respect for sovereignty and territorial integrity, and peaceful settlement of international disputes and to that end, advocated for diplomatic efforts and dialogue to settle all disputes by peaceful means, and to refrain from taking any action that may endanger international peace and security.

Sustainable Development – Priorities of the Global South – International Cooperation – Structural Reforms

Statement by Bangladesh at the High-Level Meeting on “Our Common Agenda”, Thematic Cluster 5: “Enhancing International Cooperation”, 10 March 2022, UN Headquarters New York

Bangladesh highlighted three specific points at the high-level meeting on “Our Common Agenda”: First, based on the COVID-19 pandemic experience which revealed inherent weaknesses of the UN, Bangladesh sought institutional, structural and process-related reforms to ensure more equity in terms of including the voices of the developing countries and maintaining a geographical balance in all UN recruitments. Bangladesh emphasized the alignment with national priorities, robust transparency and accountability mechanisms, and inclusive decision-making, which should be the sine-qua-non of the UN’s work. Second, underpinning the meaning and significance of international cooperation, Bangladesh called for enhanced partnership and resources not only to accelerate the implementation of the 2030 Agenda but also to develop a roadmap for sustainable development beyond 2030. Bangladesh demanded urgent focus on sustainable and more resilient Covid-19 recovery, climate actions, transforming education and health infrastructure and harnessing STI to ensure a safer and more prosperous world for future generations. Accordingly, it flagged the importance of enhanced means of implementation in terms of ODA, concessional financing, trade and investment, infrastructure building, and technology transfer. Finally, suffering the most due to the pandemic, LDC s need reinvigorated international cooperation to help them recover from its impact.

Food Security – Diversified Value-Chains in the Food Industry – South-South Cooperation

Statement by Bangladesh at the Security Council Open Debate on “Conflict and Food Security” Thursday, 19 May 2022, Security Council Chamber, New York

Bangladesh observed that global efforts to achieve a world without hunger have gone off-track, particularly after the COVID-19 pandemic. This was evident from the 2021 State of Food Security and Nutrition Report by the FAO and the impact of the Ukraine war. Emphasizing the importance of collective efforts to ensure access to safe, sufficient and nutritious food, Bangladesh pitched a four-fold proposal in this regard.

First, increase investments and targeted technology support from the developed countries in the agriculture sector to enhance productivity, and to bring more effective food storage and distribution systems. In this context, it is imperative to leverage existing international cooperation frameworks, including STI collaboration, and effective South-South and Triangular Cooperation. Second, ensure global solidarity to keep critical food delivery infrastructure, such as farms, markets, and food processing and storage facilities out of harm’s way during conflicts. A cross-pillar approach within the UN system involving peace, development, and humanitarian actors could advance this agenda. Third, create more efficient and reliable global food systems that would deliver safe, nutritious, and affordable food to all. It is crucial to eliminate trade restrictions and export subsidies by developed countries to create an open, functional, rules-based trading system. Fourth, given that climate change and environmental degradation harm the agriculture and nutrition sectors, it is necessary to fulfil climate commitments to create a more resilient agriculture and food system.

The statement ended with Bangladesh supporting the notion of the Security Council Resolution 2417 (2018) to ban the “starving of civilians as a method of warfare” as well as to ensure unimpeded access to humanitarian actors during armed conflict.

Children’s Rights – CRC – Armed Conflict – War Crimes – International Cooperation – Peacebuilding

Statement by Bangladesh at the Open Debate of the Security Council on Children and Armed Conflict, 19 July 2022

Reiterating how children bear the brunt in conflict situations, Bangladesh observed that there is a steady increase in the number of children killed or maimed by explosive remnants of war, IED s and mines. It highlighted the role of its peacekeepers in protecting children from being killed, maimed and affected by sexual violence in armed conflict situations and in safeguarding schools and hospitals from attack and preventing the military use of these infrastructures. Bangladesh described how it has been providing shelter to over 1 million Rohingyas for the last 5 years, among whom over 50% are children who faced atrocities and persecution in Myanmar. It concluded by stating that first, although the protection of children in armed conflict is the primary responsibility of the State, the responsibility of other parties is also critical. Increased collaboration and engagement amongst all parties to ensure international human rights and humanitarian law compliance. Amendment of the national legislation is key in this regard. Second, peacekeeping mandates to protect children in armed conflict should be strengthened with adequate capacities and resources. Third, coordination among all stakeholders of the UN peacebuilding activities must be enhanced and synergized to ensure a preventive and protective approach.

Sovereignty – Armed Conflict – Military Atrocities – Occupation – War Crimes – Human Rights – Humanitarian Law

Statement by Bangladesh at the Open Debate of the Security Council on the Situation in the Middle East, Including the Question of Palestine, 26 July 2022, New York

Bangladesh expressed deep concern over the military atrocities, detention and arrest, demolition of homes and civilian structures, terrorizing and causing injuries to innocent people, destroying properties in Palestine in 2021, which have been aggravated manifold by the activities of the Israeli Occupying Forces (IOF) in the first half of 2022 which contributed to the deterioration of the humanitarian situation. Bangladesh reiterated its support for the just cause of the people of Palestine for an independent, viable, and sovereign Palestinian State, with East Jerusalem as its capital, under a two-state solution based on the pre-1967 borders. In this regard, Bangladesh emphasised the following:

First, the Security Council must ensure an end to all provocations and violations by Israel and must demand the implementation of the relevant UN resolutions, including Resolution 2334 (2016) and ensure the compliance of all international human rights and humanitarian laws by Israel.

Second, the international community must hold Israel accountable for grave injustice and violence against the people of Palestine and for repeated violations of international human rights and humanitarian law in the occupied territory. Stating that the crimes committed against the Palestinians are tantamount to war crimes, Bangladesh reiterated the demand by the international community for an independent international investigation into the murder of journalist Shireen Abu Akleh by Israeli occupying forces.

Third, there can be no moral and legal justification for the killing of children. Bangladesh called for consistent and urgent action to protect civilians, particularly children.

Terrorism – UN Global Counter Terrorism Strategy – Digital Security – Human Rights of Victims of Terrorism

Statement by Bangladesh to the United Nations in New York at the General Debate of the Sixth Committee on “Measures to Eliminate International Terrorism”, 3 October 2022, Trusteeship Council

Bangladesh stated that it maintains a stringent policy of ‘zero tolerance’ towards terrorism and violent extremism and to that end, works closely with the relevant UN entities including UNOCT and UNCTED, its bilateral partners, as well as civil society organizations and has in place comprehensive laws, namely, the Anti-Terrorism Act and the Money Laundering Prevention Act. Observing that terrorism knows no borders, Bangladesh placed several proposals:

First, the UN should lead and steer the global discourse and action in a more robust and coordinated manner, taking into account the local context and needs of Member States and in close coordination with national government and relevant stakeholders.

Second, we must identify the root causes and examine the factors that create grievances, exclusion and ideological misgivings, which encourage individuals, especially the youth, to associate with terrorist or extremist organizations. Strengthening democratic values and rule of law at national and international level is imperative.

Third, capacity and technology gaps are one of the major obstacles faced by many member states in complying with the provisions set forth in the United Nations Global Counter Terrorism Strategy and Security Council Resolution 1373. To further support counter-terrorism efforts, there must be seamless exchange of information among member states, investment in prevention strategy, development of national information and communication toolkit, access to global financial support.

Fourth, since the abuse of new technologies is producing new threats, it is imperative to curb the use of new technologies and social media platforms for malicious and terrorist purposes, including the use of gaming technologies for recruitment. It is critical to educate the youth and children, who are easy targets, to recognize and reject manipulative content in the digital space.

Fifth, like any other security risk, terrorism has a disproportionate impact on women. Often forced to act as recruiters, they are also subjected to sexual violence in captivity by terrorist groups. To prevent this, the promotion of gender equality and empowerment of women in all aspects including security discourses is essential.

Sixth, upholding the rights and needs of the victims of terrorism is a critical part of the global counter terrorism efforts. International support for victims of terrorism must receive priority attention.

Finally, respect for human rights and due process of law must remain at the core of all counter-terrorism and prevention efforts and should not be compromised in any circumstances. Use of information technology as well as other modern tools in tracing and identifying potential terrorists as well as in investigation can help maintain such standards. In this regard, capacity building and international cooperation including in the field of information communications technology are vital.

Intellectual Property Rights – TRIPS – WTO – Governance – Patent Cooperation Treaty – Paris Convention

International Economic Law

The Bangladesh Patent Act, 2022 (Act No. 5 of 2022)

Repealing the Patents and Designs Act of 1911 (Act No. II of 1911), this Act aims to legislate separately on patent matters. Cognisant of the international standards of Intellectual Property Rights (IPR s) as established under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the new Act brings clarity to the laws on patents. Overall, the new Patent Act adopts the internationally applicable standards to lend more certainty and reliability to the patent law framework and remove hindrances from attracting foreign investment.

According to section 3 of this law, any technological product or process invention shall be patentable if it contains novelty and innovative steps and applies to industry. Novelty shall be deemed to exist in an invention if it is not conceivable by a known prior (section 3[2]). An invention shall be deemed to contain an inventive step if it indicates a substantial technological advance of knowledge, which is beyond the scope of the existing knowledge or prior art and the claimed invention is not apparent to a person skilled in that particular technology (section 3[3]). Any work which can be applied or used in industrial work shall be considered an invention (section 3[4]).

Section 4 of the Act states that the patent interests or rights of the inventor shall be reserved. If two or more persons jointly make an invention, such persons shall be jointly entitled to the patent (section 4[2]). If two or more persons independently make the same invention, the person who applies for the patent first shall be entitled to the patent and in case of a priority claim, the priority date shall be deemed to be the date of the patent application (section 4[3]). The law secures the rights of the inventor-successor by allowing such patent rights to be transferred or handed over to the successor (section 4[4]).

Section 5 of the new Act lays down a comprehensive list of exceptions to “patentability”. This includes, inter alia, plants and animals and their parts (other than microorganisms) and the biological processes and the biological processes necessary for the production of plants or animals and their parts (except inorganic and microbiological processes); scientific theories and mathematical methods, business methods, rules or methods of performing purely mental work or sports, as well as any such computer programs; traditional knowledge, innovation arising out of traditional knowledge or from a combination of the same; any invention whose production within the borders of Bangladesh is required to be prevented to maintain public order and morality, as well as any process which is contrary to the course of nature. In line with the decision of the TRIP s Council, pharmaceutical and agricultural chemical products shall be excluded from patentability so long as the period of exclusion subsists, unless the government by way of an official gazette alters the time limit for the same.

Sections 6–19 cover various aspects relating to patent applications, for example, specifications of the patent, conditions for application, amendment of application, challenging patents, examination of patents, and so on. The validity of a patent shall subsist for 20 years from the date of submission of the application, or where appropriate from the date of priority claim (section 20).

Section 21 of the Act lays down the rules for compulsory licensing of patents. It permits the government to grant compulsory license to any government authority or other selected entities on the following grounds: (i) when it is necessary for public interest, national security, nutrition, health, national economy or development of any other significant sector; (ii) when a court or executive authority decides that the patentee is using the invention in an anti-competitive manner and granting compulsory license may prevent such anti-competitive conduct (iii) when the patentee misuses the exclusive rights or fails to prevent the misuse by the licensee of the same (iv) the patented invention is not available at the predetermined price or in proper quality in Bangladesh through manufacture or import; and (v) when a subsequent economically significant invention is related to a prior invention and the subsequent patent cannot be worked without violating the prior patent. No compulsory license shall be issued on grounds of insufficient production or non-working of the patent within 4 years from the date of application or 3 years from the date of granting of the patent [Section 21(5)]. This requirement is in line with the Paris Convention for the Protection of Industrial Property. Section 21 entitles the patentee to an opportunity to be heard. The Act lays down certain conditions to be included in compulsory licenses. These include (i) the use of the invention for manufacture or import within Bangladesh (ii) the termination of the license by the patentee, and (iii) the uninterrupted use of the invention by the patentee, subject to provisions of Section 24 which talk about the enforcement of patent rights. The Act offers further guidance on compulsory licenses for pharmaceutical products or processes, which stipulate that compulsory licenses shall be primarily used to meet local needs unless a license is granted for export to countries which do not have sufficient manufacturing capacity.

The Act empowers the district courts to handle patent cases, with the provision for appeals to the High Court Division. The act includes a comprehensive list of reliefs that the court may grant to patent holders against any infringement (section 24). Any concerned person may move the court for cancellation of a patent (section 23). False registration of patents, false claim to be patent holder/s and failure to abide by the law are punishable with fines of varying amounts (section 28).

Section 36 reaffirms the applicability of the WTO General Council’s decision taken on 30 August 2003 on the export of pharmaceutical products under compulsory license until the TRIPS council’s amendment decision comes into effect in Bangladesh. Section 37 of the Act lays down provisions on parallel importation (the principle of international exhaustion, i.e. an authorised sale of a patented product by the patentee or his authorised licensee anywhere in the world. It prescribes a term of 10 years for utility models (section 32).

Intellectual Property – Copyright – WIPO – Visual Disability – CERD – Human Rights

Ratification of the Marrakech Treaty, 26 September 2022

In a landmark move, Bangladesh ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled 1994. The accession, which took place under the auspices of the World Intellectual Property Organization in September 2022, marked a significant development for the visually impaired community and the people who work with them. According to the National Blindness Survey of Bangladesh 2020, an estimated 1.43 million people are living with mild to severe visual impairment in Bangladesh, and 19 out of every 100 adults aged 30 years or older suffer from some degree of visual impairment. The lack of adequate access to printed materials in accessible formats not only creates a large void for the visually impaired community, it also violates the rights protected by the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Ratification of this treaty shall enable the production and international transfer of specially adapted books for people with blindness or visual impairments easier, without the risk of violating traditional copyright laws of the country.

Trade – Investment – WTO – Trade Analysis – Negotiation

The Regional Trade Agreement (RTA) Policy 2022

The government introduced the Regional Trade Agreement (RTA) Policy, 2022 by replacing the Policy Guidelines on Free Trade Agreement of 2010. The government recognized that the newer RTA s seek deeper economic collaboration, commonly referred to as WTO-X issues, which extends to commitments on intellectual property rights, trade facilitation, government procurement, labor issues, environmental protection, gender equality, competition policy, digital trade, e-commerce, and dispute settlement mechanisms. The new policy is a step towards aligning the regulatory framework and legal measures with global best practices.

The objectives of the RTA policy are, inter alia, the identification and prioritization of potential partners for RTA s; determination of RTA coverage for negotiation; institutional arrangement and authority; strategy for negotiation; internal procedures for concluding RTA; signing the RTA; and implementation and evaluation of RTA. The policy provides comprehensive guidelines to pursue each of the objectives. It is expected that the policy would help to expand the export market by diversifying the export basket, widening the domestic manufacturing base, and reducing the excessive dependence on limited products. The Policy aims to encourage the free movement of goods and services and reduce the risk of losing its duty-free market access in the global market after it graduates from a least-developed country to a developing one in 2026.

To draw on and benefit from experience and knowledge in the area of trade analysis and negotiation, the Ministry of Commerce may establish a Trade Expert Pool (TEP) comprising officials and representatives from the relevant ministries, divisions, departments, agencies etc. The TEP may also include representatives from experienced ex-government officials, the private sector, think tanks and the academia.

TICFA – Bilateral Trade and Investment– Market Access – Labor Rights – Digital Policies – Intellectual Property

Bangladesh and the United States Hold the 6th Meeting of the U.S.-Bangladesh Trade and Investment Cooperation Forum Agreement Council, 06 December 2022, Washington

The United States and Bangladesh convened the sixth meeting of the United States-Bangladesh Trade and Investment Cooperation Forum Agreement (TICFA) Council on 06 December 2022 during which the two countries emphasized the significance of their economic and trade relationship and deliberated on a range of issues about their bilateral trade relationship, including market access for agricultural products, labor rights, digital trade policies, intellectual property protection and enforcement, and policies impacting the investment climate.

Recognizing the progress made in terms of reducing market access barriers for certain agricultural products, both delegations discussed ways to facilitate bilateral trade in food and agricultural products through science and risk-based policies that ensure trade in safe food and agricultural products. Both countries affirmed the importance of reforming the labor laws of Bangladesh in line with international labor standards and ensuring the protection of workers’ rights to freedom of association and collective bargaining and a safe and healthy workplace. The United States stressed the need to extend fundamental rights of freedom of association and collective bargaining to the export processing zones (EPZ s) and special economic zones (SEZ s) and expressed interest in collaborating with Bangladesh on fresh opportunities to promote labor rights, including forced labor in global supply chains.

The two countries discussed how digital policies, developed inclusively and transparently through public stakeholder engagement, and without causing foreign and domestic suppliers any disadvantage, disclosing proprietary data, or increasing cybersecurity risks, can promote inclusive economic growth, innovation, and investment. The United States advocated for the development of digital trade policies that support MSME’s participation in the digital economy, increase trust amongst consumers, businesses, and workers, and facilitate secure cross-border data flows.

Both parties recognized the importance of the protection and enforcement of intellectual property (IP) for catalyzing innovation and promoting trade and investment. They expressed their continued interest in additional expert- level engagement on patent rules, emerging IP reforms and border enforcement. The United States acknowledged the important role of investment in supporting Bangladesh’s development objectives as the country graduates to middle-income status. In this connection, the delegates flagged the importance of predictability and transparency for both Bangladeshi and foreign companies operating in Bangladesh.

Judicial Decisions

International Economic Law – Intellectual Property Law – Trademark Protection

Asian Consumer Care (Pvt.) Limited v. Marico Limited and Ors. 28 BLC (2023) 271 [First Miscellaneous Appeal No. 76 of 2021 Decided on 14 March 2022]

Marico Limited produces and sells/ markets various products in more than 25 countries in Asia and Africa. Marico Limited, through its subsidiary company Marico Bangladesh, is the registered owner of the trademarks ‘parachute’ and ‘parachute advanced’ in Bangladesh. The terms are actually used for coconut oil and hair oil products, respectively. The Company also got the registration of trade dress that includes bottle shape, cap, configuration, design, the blue color get-up of the bottle, and etc. Thereafter, the Asian Consumer Care (Pvt) Ltd was found to use the deceptively similar blue bottle, color scheme and design in the name of ‘Dabur Gold Pure Coconut Oil’. An injunction was sought before the District Court. The District Court issued an ad-interim injunction against which the appellant preferred an appeal in the High Court Division (HCD). The learned Counsel appearing for the Appellant submitted that a bottle or a particular color of a bottle cannot be a trademark. He also submitted that a particular color cannot be monopolized by any entity. On the other hand, the learned Counsel appearing for the Respondents argued that the said products consisting the shape of the bottle, color and design, including the splash of the broken coconut are confusingly similar to the trade dress and get-up of plaintiffs’ said products which may confuse unaware consumers to regard the products of the Appellant as that of the Respondents. It is an infringement of trademarks under section 10(5) of the Trademarks Act 2009. It was mainly alleged that the defendant-appellant was passing off its products as if it was selling the products of the plaintiffs-respondents. The Court held that most of the purchasers of the product are ordinary people and that they don’t purchase the products by comparing meticulously two products but rather relying on the visual representation of the products. A closer look at the visual representation shows that the Appellant (Asian Consumer Care) has used a blue color bottle with a similar shape and a splash of broken coconut which looks very similar to that of the Plaintiffs. Accordingly, the HCD affirmed the decision of the District Court of ad-interim injunction and sent the case to the District Court for trial and hearing of the suit on merit. Needless to say, there are no specific references to any international conventions of intellectual property in the case. But it is clear that the decision is consistent with Article 6bis of the Paris Convention 1883 and Article 16 of the TRIPS agreement 1994. Since the impugned trademarks of the respondents are well-known both in India and Bangladesh, it could have been argued to be well protected under the above international provisions.

International Economic Law – International Trade – Intellectual Property – Parallel Importation of Goods

Unilever Bangladesh Limited v. The Chairman, National Board of Revenue and Ors. [Writ Petition No. 8301 of 2010, High Court Division of the Supreme Court of Bangladesh, Judgment Delivered on 25 October 2022]

The petitioner, Unilever Bangladesh Limited filed the writ petition seeking a direction to respondents to not allow import or release of finished branded products by third party in violation of section 15 of the Customs Act (1969). The issue was whether the importation of parallel goods of the branded products of Unilever Plc., which are locally produced, packaged, and marketed by the petitioner, into Bangladesh is barred under section 15 of the Customs Act (1969) without prior permission of the petitioner and as to whether the instant writ petition is maintainable in law.

The Court discussed that parallel importation by third parties was generally deemed to be an infringement of the Customs Act. In the case of Kirtsaeng v. John Wiley & Sons Inc. (2013), the US Supreme Court followed the doctrine of international exhaustion and held that permission from the intellectual property right holder is not required as the sale of lawfully made copies of a product purchased overseas was protected by the first-sale doctrine. Likewise, the Supreme Court of Bangladesh held that section 15 of the Customs Act (1969) takes a balanced position as it neither provides an absolute bar in importing parallel goods nor gives any unfettered right to the importers to import parallel goods. Products can be imported by a third party as long as the conditions provided in Section 15(d) (e) (g) and (h) of the Act are complied with. If the importers fail to comply with these conditions, the customs authority is empowered under section 17 of the Customs Act (1969) to detain and confiscate the imported goods. Since nothing has been stated in the section regarding prior permission of a registered company, such requirements are not legally relevant.

The Court further held that the Import Policy Order 2021–2024 has a supplementary provision for the interest of the local industry. As per order 4 (Uma) of the said IPO, any aggrieved person is eligible to draw the attention of the Trade and Tariff Commission regarding violations of any condition on the importation of parallel goods. Section 96 of the Trademarks Act of 2009 also protects the petitioner as they are legally entitled to file a suit before the civil court for violation of any provision of the Trademarks Act (2009). Thus, the Court found that since section 17 of the Customs Act (1969), Order 4 of the and section 96 of the Trademarks Act for an alternative, effective, and equally efficacious remedy for violation, resort must be taken in statutory remedies before seeking extraordinary remedy in Article 102(2) of the Constitution.

Another question surfaced as to the method of deciding whether a particular imported consignment is a parallel brand of Unilever Bangladesh or not. The Court established that the customs authorities have the jurisdiction to inspect the shipment and determine if a product is genuine or counterfeit products belonging to Unilever PLC, based in London. If there is evidence of the importation of parallel goods or counterfeit products in violation of the restrictions outlined in Section 15 of the Customs Act, 1969, the petitioners are free to apply to the customs authority regarding the specific consignment. Thus, there is no obligation on respondents to restrain any person from importing parallel goods or to restrain any person from opening a letter of credit regarding the importation of parallel goods.

International Economic Law – Principle of Equality – Taxation

S. Alam Beg Manufacturing Mills Ltd. and Ors. v. Government of Bangladesh and Ors. [14LM(AD) 2023 344, Appellate Division of the Supreme Court of Bangladesh, Judgment Delivered on 14 December 2022]

The Appellate Division heard and disposed of a clutch of civil petitions for leave to appeals together as they challenged the legality of incorporation of section 16CCC of the Income Tax Ordinance (1984) through the Finance Act (2011) claiming it ultra-vires the aim, spirit, purpose, and object of the said ordinance and violative of fundamental rights enshrined under Articles 26, 27, 31, 40 and 42 of the constitution. Insertion of section 16 CCC in the Ordinance (1984) imposed liability of paying minimum tax at 0.50% on gross receipts for every company, irrespective of its profit or loss in an assessment year from all sources.

Appellants contended that the said section is discriminatory as it applies differently among businessmen viz-a-viz company and firm. The Court analyzed section 2(46) of the Ordinance (1984) which defines “person” broadly to include various entities such as individuals, firms, associations of persons, local authorities, companies, and etc. This diverse classification implies that taxation encompasses a wide range of groups, each with its own tax implications. While taxation may not be uniformly applied across all groups, ensuring equitable treatment within each group is not discriminatory. Therefore, while individuals, companies, and firms mentioned in section 2(46) may not receive identical tax treatment, the principle of equal treatment within their respective groups ensures the equality principle. Hence, the Court opined that the enactment is not discriminatory as the principle of equality mandates that equal means and methods be impartially applied to all members of each group, ensuring that the law operates uniformly and equitably for individuals in comparable situations.

Referring to section 2(34) of the Ordinance, the Court found that gross receipts fall within the purview of the said Ordinance. In reaching its decision, the Court discussed that section 16 CCC is an alternative method of taxation. Many countries have implemented the Alternative Minimum Tax (AMT) system, which mandates that taxpayers pay a minimum amount of tax if their regular tax liability falls below a certain threshold. Bangladesh, as a participant in the global tax community, has embraced the modern practice of implementing alternative minimum tax. This hints at Bangladesh’s attempt to move in line with a global standard of taxation by making companies (including MNE’s) liable to pay minimum tax. The situation of Bangladesh, multiple companies having billions of turnovers ended up paying zero tax taking advantage of section 35(3) of the Ordinance (1984). Section 16CCC combats such tax evasion and erosion of tax base which hampers the fiscal health of the state.

This development of policy in Bangladesh happened in line with the Pillar Two Model Rules, also known as the Global Anti-Base Erosion (GloBE) Rules, unveiled on 20 December 2021, constitute a component of the Two-Pillar Solution aimed at tackling the tax avoidance issues. This solution was ratified by 137 member jurisdictions of the OECD/G20 Inclusive Framework on Base Erosion and Profit Shifting. Bangladesh as a part of the global tax landscape, will need to align with Pillar Two rules to promote tax fairness and prevent base erosion and profit shifting even though it is not party to OECD/G20.

Environment – Air Pollution – Right to Health – WHO Air Quality Guidelines

International Environmental Law

The Air Pollution (Control) Rules, SRO No. 255-Law, 26 July 2022

On 26 July 2022, Bangladesh’s Ministry of the Environment, Forest and Climate Change published the Air Pollution (Control) Rules 2022 under the Bangladesh Environment Conservation Act 1995. The Rules aim at developing the National Air Quality Control Plan and the Air Pollution Prevention Plan, identifying air pollution activities, and establishing standards for emissions from industry, automobiles, and specific projects (power generation, textiles, cement, fertilizers, etc.). Alluding to different types of pollution caused by factories, vehicles, construction projects, and waste (garbage), the Rule aims to prevent, control, and reduce air pollution.

The Director General (DG) of the Department of Environment (DoE) has been conferred with certain responsibilities to give effect to the Rules of 2022. Rule 4 empowers the DG to formulate a scheme for managing air quality to reduce and control air pollution. According to Rule 5, the DG is vested with the power to announce a certain area as a ‘Degraded Air Shed’ when the air quality exceeds the prescribed limits and becomes severely polluted. To give effect to the Rules, the DG can list the activities contributing to air pollution under Rule 6. Rule 15 establishes a committee comprising all concerned officials from relevant ministries, organisations, and institutions to give directions, advice, and recommendations for air pollution management. The Rules introduce a novel system of reward and punishment in managing air pollution. While non-compliance with the Rules will invoke the punishment of a fine of up to 2 lacs and imprisonment of up to 2 years, Rule 16 allows the government to award any person or institution that contributes to controlling and protecting air quality.

The Rules identify several sources of pollution and prescribe measures to manage pollution including those brought on by factories, projects or business entities (rule 8), and automobiles (rule 9). The Rules prescribe the roles of different entities in the control and prevention of air pollution, for example, local government institutions and construction regulatory authorities (rule 10), organisations/individuals engaged in construction/renovation/repair works (rule 11) and in the control of pollution emanating from garbage (rule 12). The Rules provide for the establishment of Continuous Air Quality Monitoring Stations throughout the country (rule 13).

Workers’ Rights – Workplace Health and Safety – Terms and Conditions of Work

Human Rights

The EPZ Labor Rules, 2022

The EPZ Labor Rules 2022 elaborate qualify the provisions of the Bangladesh Export Processing Zone (EPZ) Labor Act 2019 which contains specific regulations for zone areas. Comprehensive in scope, the rules cover, amongst other things, major aspects related to working conditions in the Export Processing Zones.

According to the Rules, no worker shall be employed without an appointment letter. The employer shall issue an identity card for the worker in the prescribed form within one month of joining. Within one month of becoming permanent, the employer shall document all necessary information about the worker in the service book, which includes, amongst others, his/her pay scale, training received, any punishment or award given, annual leave enjoyed, termination, discharge, dismissal, resignation or retirement.

Rules 15–16 address leave-related matters, for instance, the leave application and approval modes and process, leave extension, etc. The Rules added a new provision that if an employer does not provide a worker with a confirmation letter after six months, the worker will be considered permanently employed. A worker must submit an application for leave in writing, specifying the address where s/he would be available during the leave period. The employer must respond within 7 days of receiving the application or 2 days before the day the leave starts, whichever is earlier. If an employer disallows a leave, s/he must convey the same in writing along with the grounds for rejecting the application. A worker wishing to extend his/her leave must notify the employer in writing. An apprentice shall now be permitted to work extra hours.

For retrenchment, the employer needs to consider the joining date of the employee. For the employees who joined earlier, the employer needs to consider them first. The rules also specified the calculation method of earned leave of the Zone’s employees. Besides that, there are some clear guidelines for maternity benefits, leave, punishment for conviction, the safety of the worker, risk management, and primary medical service, etc. The Rules provide benchmarks for unacceptable conduct towards women workers which include sexual harassment, blackmail, obscenity, etc.

Amendments to the Bangladesh Labor Rules 2015 in 2022

The Bangladesh Government amended the Bangladesh Labor Rules 2015 by promulgating S.R.O. 284-Ain/2022, dated 25 August 2022 (“2022 Amendments”), with immediate effect. The new Rules contain both significant and small revisions. Some of the salient provisions are highlighted.

The new Rules have in place special measures for women workers including protection for women at the workplace, the introduction of miscarriage leave, as well as mandatory safety requirements to be adopted in factories. Under the new Rules, the employer shall establish health clinics that will offer counselling to women; ensure transport facilities for women working between 10:00 pm and 6:00 am; and form a Committee, composed of five members, the majority of whom shall be women, to address sexual harassment issues. If a woman gives birth after the scheduled time of eight weeks preceding the expected day of her delivery, the days that pass after the scheduled time of eight weeks will be adjusted under the Rules. If a woman suffers a miscarriage before the scheduled date of going on maternity leave, she will be entitled to four weeks leave due to health reasons; no deductions from wages will be made and such leave cannot be adjusted with any leave which is due to her. The amended Rules also clarify the calculation of maternity benefits; the rule additionally permits the deduction of money for the provident fund from the maternity benefit.

The 2022 amendment provides that to determine the classification of workers, any work will be considered as the primary work or permanent work which has been continuing in the establishment without interruption for a period of one hundred and eighty (180) days. The amended provisions impose a mandatory yearly increment in wages that cannot be less than 5% of the basic wages. The basic wages of workers cannot be less than 50% of the total wages in cases where the Government has not fixed a separate minimum wage. Amendment of BLR 2015 now provides that the wages of a worker supplied by a contracting agency will not be less than the wages of a permanent worker or employee of a similar rank, and the basic salary of the same cannot be less than 50% of the determined salary. The new Rules explain that disciplinary inquiries shall be completed within 60 days, which is to be calculated from the date on which the show cause was issued until the day on which the matter has been disposed of.

Child Labor – Minimum Age – International Labor Standards – ILO – Decent Work – Forced Labor

Ratification of the Protocol to the Forced Labor Convention (Protocol No. 29), 22 January 2022, Geneva

Reinforcing its commitment to the prevention and elimination of forced labor, including trafficking in persons, Bangladesh ratified the Protocol to the Forced Labor Convention (Protocol No. 29), 2014 in January 2022.

Ratification of Key ILO Convention on Child Labor, 22 March 2022, Geneva

In a breakthrough towards advancing decent work by eliminating child labor and under its commitment to eliminate all forms of child labor by 2025, Bangladesh ratified the International Labor Organization’s Minimum Age Convention, 1973 (No. 138) in March 2022. In accordance with Convention No. 138, Bangladesh is required to set a minimum age under which no one shall be admitted to employment or work in any occupation, except children engaged in light work and artistic performances. ILO Convention No. 138 sets the minimum age for those entering the workforce at 15 years. However, it permits countries to establish, in consultation with organizations of workers and employers, the minimum age of work at 14 years, which Bangladesh has chosen to do. Accordingly, the minimum age of entry into work or employment in selected sectors, both formal and informal, shall not, henceforth be below 14 years of age. This includes mining and quarrying; manufacturing; construction; electricity, gas, and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes. Family and small-scale holdings producing for local consumption and intermittent employment shall be exempted.

Human Rights – Judicial Decisions

Human Rights – Rights of the Child – CRC – Custody of the Child – Principle of the Welfare of the Child/ Best Interest Principle – Treaty Obligation

Erico Nakano, Tokyo, Japan v Bangladesh (2022) 16 SCOB (AD) 107 [Civil Petition for Leave to Appeal No. 233 of 2022, Appellate Division of the Supreme Court of Bangladesh, Judgment Delivered on 13 Feb 2022]

Erico Nakano, the Appellant, and Imran Sharif, Respondent no. 5, got married on 11 July 2008 in Japan solemnizing both Japanese and Muslim culture. Three daughters were born during their wedlock. After a dispute between the husband and wife, Imran Sharif took his two daughters away on 28 January 2021. On the same day, Nakano filed a suit at the Japanese family Court. During the pendency of the suit, the father brought his daughters to Bangladesh without their mother’s consent or without any notice to the Japanese family court. Pursuant to the failure of all efforts to take the detainees in her custody from Bangladesh, Erico Nakano filed a writ of habeas corpus nature before the High Court Division (HCD) of the Supreme Court of Bangladesh. After considering the desire and preference of the daughters, relevant provisions of the Convention on the Rights of the Child (CRC), Bangladeshi precedents, and the welfare of the minors, the HCD ordered that the daughters be kept in the custody of the respondent (father) and granted the petitioner-appellant (mother) regular visitation rights. Being aggrieved, the Petitioner preferred an appeal before the Appellate Division (AD) of the Supreme Court of Bangladesh. The learned advocate appearing for the petitioner contended that the detainees were illegally removed from the custody of their mother. He also argued that respondent no. 5 violated the Japanese Court’s order. The AD held that the HCD erred in law without considering such circumstances.

The Court mostly relied on the relevant provisions of the CRC. Article 7 of the CRC states that the children shall have the right to be cared for by his or her parents. Moreover, Article 12 expresses that a child who can form his own views shall have the right to express those views in all matters affecting his or her interests. Article 21 has given pertinence to the best interests of the child. Like the CRC, the Guardian and Wards Act 1890 also mandates the Court to consider the welfare of the minor while deciding custody issues. The Court referred to its earlier decision, namely Abdul Jalil and Sharon 50 DLR (AD) (1998)55, and held that the best interest of the child can only be understood well when sufficient evidence is taken. The Appellate Division generally cannot take new evidence on a case and thus, the Family Court has the jurisdiction to settle the question of custody of a minor. The Family Court will look into the cases referred to by the parties and come to a finding, regarding in whose custody the welfare of the detainees will be better protected. The AD directed, after perusal of the different efforts of the mother, that the detainees will be in the custody of their mother till the disposal of the issue by the Family Court.

Additionally, this case also bears significance for its pronouncement relating to the enforceability of the provisions of the international instruments. It made a verbatim of HM Ershad v Bangladesh 21 BLD (AD) 69 and held that ‘the court should not ignore the international obligations which the country undertakes by signing the instruments’.

Rights of Children – The United Nations Convention on the Rights of Child, 1989 – Treaty Obligation

Shirina Akhter vs. The State, [Criminal Miscellaneous Case No. 526 of 2022, the High Court Division of the Supreme Court of Bangladesh, Judgment Delivered on 21 June 2022]

The case involved an issue of bail under Table 8(C) of section 36(1) of the Narcotics Control Act, 2018 where the application of a detained accused petitioner, whose infant child was staying with her in jail was rejected by the Additional Session Judge. The infant was only 9 months old at the time of her arrest and became 3 years old at the time of the hearing. Being aggrieved by the order of the trial court the current bail application was filed under section 498 of the Code of Criminal Procedure 1898.

The Court discussed the liability of Bangladesh under international law as the country has ratified the United Nations Convention on the Rights of Child, 1989 (UNCRC). To give effect to the UNCRC, the Children Act 2013 was enacted. The court referred to Article 37 of the UNCRC (1989) which puts an obligation upon the state to protect children from torture and cruel punishment, from arbitrary and unlawful deprivation of liberty, ensuring lawful and humane treatment during confinement. The court relied on Articles 3 and 37 of the UNCRC which provides that the best interest of children should be of paramount importance and detention of children should be a last resort. The court discussed the negative impacts on a child who is living in jail due to no fault of his own with other adults where any offense committed by a child under 7 years of age is not an offense under section 82 of the Penal Code 1860. However, given the prevalence of children falling victim to drug crimes, the Court emphasized the identification and determination of the relationship of the accused with the child to avoid fraudulence and the burden of proving the relationship is on the accused.

Section 339C (2) of the Code of Criminal Procedure (CrPC) provides a time limit of 360 days for concluding trial after which the accused of a non-bailable offense may be released on bail according to section 339C (4) of the Code. Emphasizing that prolonged detention without trial is unacceptable, the Court ruled to enlarge the accused on bail subject to surety thereby, ultimately upholding the principles of UNCRC.

International Human Rights – Universal Declaration of Human Rights – Freedom of Movement – Reasonableness of Restrictions

Tafsir Mohammad Awal vs. The Government of the People’s Republic of Bangladesh and Ors. [Writ Petition No. 4437 of 2021, High Court Division of the Supreme Court of Bangladesh, Judgment Delivered on 24 February 2022]

The petitioner filed a writ petition challenging the legality of the travel ban imposed against him by the Anti-Corruption Commission which violates his fundamental right to freedom of movement under Article 36 of the constitution of Bangladesh. The petitioner argued that neither the Anti-Corruption Commission Act (2004) nor the Anti-Corruption Commission Rules (2007) provides any express or implied authority to the respondent to prevent any person from going outside Bangladesh based on mere suspicion. The petitioner also argued that the travel ban in question fails to meet the threshold set out in article 36 of the constitution as it does not provide how the public interest will be served if the petitioner is prohibited from traveling overseas. In its submission, the petitioner invoked Article 13 of the Universal Declaration of Human Rights (UDHR), which states that any citizen of the country has the right to leave his country and return to it.

The Court asserted that freedom of movement envisaged in the constitution of Bangladesh is not an absolute right. Thus, the right to leave one’s country is subject to certain restrictions which must be reasonable by objective standards. The Court reaffirmed the requirement of a proper balancing of fundamental rights to determine reasonableness. The Court decided that the judiciary has the power to judge the reasonableness of restriction and such restriction can only be imposed by law and not by any executive order. When travel restrictions are imposed to prevent any person from evading the due process of law, such restrictions would be subject to confirmation by the appropriate court. Consequently, the impugned order putting an embargo on the petitioner from leaving Bangladesh, if is not approved by the appropriate court, was declared ultra vires.

Human Rights – Freedom of Press – State v. Anti Corruption

Commission and Others LEX/BDHC/0054/2022 [Suo Motu Rule No. 04 of 2021, High Court Division of the Supreme Court of Bangladesh, Judgment Delivered on 21 June 2022 by the High Court Division]

Sayed Ahmed, a journalist of the Daily Inqilab, published a news report disclosing that the Anti-Corruption Commission (ACC) discharged Engineer Ashraful and his wife from the inquiry proceedings in exchange for BDT 200 million. The High Court Division (HCD) directed the Commission to submit a report as to whether the allegation reported in the newspaper was true or not. The Court also directed the journalist to disclose his source of information for the impugned news report. The learned Advocates for respondents 1 (ACC) and 3 (Engineer Ashraful) submitted that the news report offended, defamed, and tarnished the image of ACC, the Engineer concerned and his wife. They also submitted that Article 39(2) of the Constitution guarantees freedom of press subject to reasonable restrictions imposed by law. They argued that the impugned report violated the law of defamation and thus crossed the reasonable restrictions imposed by law. On the contrary, the learned advocate for respondent no. 2 (the journalist) submitted that investigative journalism is within the ambit of ‘freedom of the press’. He cited Manoharlal Sharma v. Union of India (Pegasus case) AIR 2021 SC 5396 by stating that a necessary and important corollary of the right to freedom of press is to ensure the protection of sources of information. Additionally, he submitted that if the other respondents become aggrieved by such a report, they may file a complaint to the Press Council under the Press Council Act 1974. The Court held that Article 39(2)(b) of the Constitution of Bangladesh particularly guarantees the freedom of press subject to some restrictions. The Court further stated that such exceptions are namely, (i) in the interests of the security of the State, (ii) friendly relations with foreign states, (iii) public order, decency or morality, or (iv) in relation to contempt of court, (v) defamation or (vi) incitement to an offense. The Court further pronounced that investigative journalism is a necessary corollary of such freedom. Journalists are considered the fourth pillar of democracy and thus they have the authority to publish news reports on corruption on matters of public interest. The Court referred to the United Nations Convention Against Corruption 2003. The Court states that ‘[a] highlight of the Convention is the inclusion of a specific chapter on asset recovery, aimed at returning assets to their rightful owners, including countries from which they had been taken illicitly.’ Corruption undermines democracy and the rule of law, and thus, investigative reports are necessary to prevent corruption. The ambit of the freedom of press was extended by the Court.

Human Rights – Equality before the Law – Women’s Rights – Reasonable Classifications/ Intelligible Differentia – Affirmative Action/ Positive Discrimination

Gulshanara Khatun v. Abul Hossain and Others 28 BLC (AD) 71 [Civil Appeal No. 166 of 2014, Appellate Division of the Supreme Court of Bangladesh, Judgment Delivered on 8 August 2022]

The appellant filed a suit for a mandatory injunction to appoint her as a religion teacher in a school by removing respondent no. 10 (Abu Sadek) who was appointed instead of her. The trial court and the appellate court directed the authority to appoint her, but the High Court Division (HCD) reversed the lower courts’ decisions exercising its revisional jurisdiction. The appellant appealed against the decision of the HCD. The learned counsel representing her claimed that there was an obligation of the school authority to appoint female teachers at the rate of 30% in every institution as per the notification issued on 13 January 1999 by the Government and it was in consonance with Article 28(4) of the Constitution which provides affirmative action and positive discrimination in favour of the backward sections of the society. The learned advocate appearing for respondent no. 10 submitted that the impugned notification doesn’t entail a legal obligation as it was not issued in a gazette notification. He referred to a case cited in 50 DLR (AD) 27 where it was held that even a cabinet’s decision shall not be binding unless it is published in an official gazette. Therefore, the AD held that the impugned decision was not binding upon the school authority and dismissed the appeal. The Court also substantiated its argument by referring to another notification issued on 04 February 2007, which dictated that 30% of the future appointments should mandatorily be from female candidates. Likewise, the Court made it clear that the impugned notification was not mandatory.

Human Rights – Right to Life – Right to Health

The State v. Badal Kumar Paul [Criminal Appeal No. 23 of 2005, Appellate Division of the Supreme Court of Bangladesh, Judgment Delivered on 1 February 2022]

This criminal appeal is filed against a judgment passed by the High Court Division which acquitted the accused respondents from all the charges under section 19(1) serial 3 (kha) of the Narcotics Control Act 1990. The issue that arose before the Court was whether Codeine and Codeine Phosphate were prohibited items as narcotics and whether their presence rendered the total amount of the phensedyl/liquid as narcotics under this Act. Even though not directly scheduled as narcotics, the components it consists of, namely codeine, is a scheduled narcotic under the said Act. Consequently, it stands as a scheduled narcotic within the purview of the Act. Since opium derivatives are solid substances, section 19(1) serial 3 of the Act imposes punishment by counting the drug in kilograms. Even though Phensedyl is a liquid substance, the Court held that for the purposes of punishment, the total amount of substances with which the narcotics was mixed with must be considered and thus the total liquid content needs to be counted based on the volume/mass irrespective of how much narcotics was mixed. Thus, any portion of the mixture of codeine phosphate with any other liquid substance shall render the total amount of liquid substance as narcotics substances and punishment will be imposed based on the total amount of such combination.

The court referred to the reports and seminars of the UN Office of Drug and Crime (UNODC) in reaching its decision which highlighted the problem of drug abuse especially related to the conversion of morphine into codeine which significantly contributes to the opioid alkaloid industry. The court relied on these reports and took a contrario position from the earlier Indian decision of Pankaj Shukla v. Union of India [(2016 (4) CHN (CAL) 233] claiming that cough syrups mixed with Codeine cannot be banned. In this regard, the Court emphasized the issue of drug trafficking from beyond borders and considered how the geographical position of Bangladesh contributes to the problem. The court ultimately set aside the judgment of the High Court Division as it failed to consider Phensedyl as a narcotics substance. Additionally, the Court eventually upheld the right to life and health pursuant to Articles 3 and 25 of the UDHR, respectively, as the Court specifically mentioned that codeine has detrimental effects on our health.

International Human Rights – Equal Protection of Law – Human Rights and Peace for Bangladesh

[Writ Petition No. 10928 of 2019, High Court Division of the Supreme Court of Bangladesh, Judgment Delivered on 25 August 2022]

In Human Rights and Peace for Bangladesh v. Bangladesh, the vires of section 41(1) of the Government Services Act 2018 were challenged. The HCD found the incorporation of section 41(1) which seeks prior approval of the government/ appointing authority before arresting any government official on criminal charges as illegal as it violates the provisions of Articles 26, 27, and 31 of the Constitution. The Court upheld that the principle of equal protection of law as providing undue privilege and protection from arrest is a colourable exercise of the power of the executive branch which conflicts with the fundamental rights guaranteed for the citizens in Articles 27 and 31 of the Constitution.

Human Rights – UDHR – Fair Trial

Terab Ali v. Syed Ullah & Others 75 DLR (AD) (2023) 233 [Civil Petition for Leave to Appeal No. 3135 of 2014 Decided on 31 August 2022]

The respondents filed a suit for declaration of title and recovery of khas possession (possession by government allotment to use a land). They obtained an ex-parte decree on 15 April 1989. Thereafter, the execution suit was filed on 20 October 1993. The appellants contended that the execution suit was apparently barred by limitation since it exceeded the limitation period. Article 182 of the Limitation Act 1908 prescribes that the first execution suit must be filed within 3 years from the decree. However, in the executing court, the learned Senior Assistant Judge of Sylhet, ignored the time limitation and considered the petition relying on a case decided by the Peshawar High Court of Pakistan in 1998. The Appellate Division held that ‘the case laws of the then higher courts namely Dhaka High Court, Federal Court of Pakistan (14 August 1947 of its independence to 1956); Supreme Court of Pakistan (1956 to 25 March 1971); Calcutta High Court, Federal Court of India (1935–1947 13th August) the Privy Council (till 13th August 1947) are applicable with binding effect in our jurisdiction.’ The Court identified the reliance on any foreign judgment beyond the above list as judicial adventurism which goes against the mandates of Articles 111 and 149 of the Constitution. It is worth mentioning here that although the court did not mention any reference to international conventions explicitly, it appears that the Appellate Division eventually upheld the right to a fair trial and hearing enshrined in Article 10 of the Universal Declaration of Human Rights.

Criminal Law – Digital Evidence – International Criminal Procedure – Expert Testimony

International Criminal Law

The Evidence (Amendment) Act, 2022 (Act No. 20 of 2022)

The Act has been modified/amended in response to the increased demand for digital evidence and to stop rape victims’ integrity from being questioned during trials. The inclusion of digital evidence has expanded the definition of what constitutes evidence. As a result of this, both the prosecution and the defence are now permitted to present digital evidence to the court to support their positions.

It is significant to notice that the amendment now includes tangible or forensic evidence in the definition of “Evidence”, namely, all materials or objects relating to blood, semen, hair, DNA, finger impression, palm impression, iris impression, footprint, etc. (section 2[C][3]). Additionally, the amendment expands the possibility of admitting digital recordings (records by/in computer memory, audio, video, DVD, CCTV footage, cell phone records, etc.) as evidence. A “document” shall include a digital record or electronic record, which means any record, data or information generated, prepared, sent, received, or stored in magnetic or electro-magnetic, optical, computer memory, micro-film, computer-generated microfiche including audio, video, Digital Versatile Disc or Digital Video Disk (DVD) records of Closed Circuit Television (CCTV), drone data, records from cell phones, hardware, software or any other digital device as defined in the Digital Security Act 2018 (section 2[a][b]). When seeking expert opinion on any matter, in addition to other skills and knowledge, the Court can rely on experts with knowledge and understanding of “digital record or art” (section 9).

Section 15 of the amendment introduced a new section, 81/A, to the evidence law, which states that “digital records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable”. Section 12 of the amending law introduced two new sections, 65A and 65B, which relate to the proof of digital records. Section 65B states that any information contained in a digital record which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be considered to be a document as long the applicable conditions are met and shall be admissible as evidence without proof or production of the original. Section 17 of the amendment added another new section, 88A, under which the Court may presume that a digital communication forwarded by the originator via digital communication or message server to the addressee for whom the message is intended, corresponds with the message as fed into his computer or any other digital device for transmission; however, the Court shall not make any presumption regarding the persons who sent the message.