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Rulings on Insurance Law by Supreme Court in Bangladesh

April 13, 2015 in Publication

Lawyers Bangladesh decided to publish some important and landmarks rulings on specific issues and in view of that its our pleasure to publish decisions on Insurance Law of Bangladesh.

Decisions on Insurance Act 1938

1.     Sections 2(13d) & 46 of Insurance Act 1938; the doctrine of privity in case of a contract of insurance with the intervention of a bank through documentary credits gets always modified. The effect of the doctrine of privity of contract stands modified by section 46 read with section 3(13D) of the Insurance Act.

 Janata Insurance Co. Vs Islam Steel Mills 52 DLR 642.

2.     Section 44A(1)—This provision sets a pre-condition of a survey report for payment of claim in respect of general insurance. It does not provide that any legal proceeding will be batted unless the loss is surveyed by an insurance surveyor.

Sadharan Bima Corporation vs The Dhaka Dyeing and Manufacturing Company Ltd. 43 DLR 286.

3.     Section 46—Section 46 of the Act empowers a holder of policy to sue for any relief in respect of the policy in any Court of competent jurisdiction in Bangladesh; if the suit is brought in Bangladesh any question of law arising in connection with any such policy shall be determined according to the law in force in Bangladesh. But such right is given only to the holder of a policy and an insurer cannot claim such right to go to a civil Court.

Homeland life vs Jahanara Begum and others 52 DLR 666.

 

4.      Section 47B –Arbitrator  could not have awarded interest to the appellant because the  Arbitrator was to determine the quantum of loss or damages and nothing else—He had no authority to direct the payment of the sward—The question of awarding the interest was outside his term of reference—The award of the arbitrator is not yet complete in the sense that it is still the subject-matter of appeals—Payment on the policies becomes due when the award reaches a finality and from this point of time 90 days shall start to run and the question of payment of interest under section 47B arises.

Daulatpur Traders & Co Ltd vs The Eastern Federal Union Insurance Co Ltd 42 DLR  125.

5.       Section 47—B Section 47B of the Insurance Act 1938 as amender by Ordinance XXV of 1970 provides for granting of interest on claims. This provision displaces the discretion of the Court conferred by section 34 of the Code of civil Procedure in the matter of granting interest. Hence the plaintiff-appellant is entitled to the statutory interest under section 47B of the Insurance Act. The Court has no discretion in the matter.

Chalna Marine products Ltd. Bs Reliance Insurance Ltd and others 50 DLR ( AD) 100.

6.      Section 47B—The amended provision of the Insurance Act displaces the discretion of the Court in the matter of granting interest.

Bangladesh General Insurance Co Ltd vs Chalna Marine Products Co Ltd 51 DLR 357.

 

7.       Section 48(1), 48B, 48BB, 102(1) &109—It is only a Magistrate of the First Class to try any offence for breach of any provision of the Act and the respondent has no lawful authority to impose any fine upon the petitioner for breach of any provision of the Act.

National Life Insurance Company Ltd vs Controlled of Insurance 56 DLR 624.

8.        Section 47—B Section 47B of the Insurance Act 1938 as amender by Ordinance XXV of 1970 provides for granting of interest on claims.

Consequently the Court at present has no discretion in the matter of awarding interest earlier available section 34 of the Code of civil Procedure. The claimant is thus entitled to the statutory interest under section 47B of the Insurance Act.

Chalna Marine products Ltd. Bs Reliance Insurance Ltd and others 50 DLR ( AD) 100.

9.        The claim for loss of damage to stock due to deterioration, the plaintiff will also have to prove that there was break down of machinery and the parts, particulars of which must be kept, had to be replaced.

M/s Bangladesh General Insurance Co Ltd vs M/s Meghna Sea Foods Ltd. 21 BLD (HCD) 430

10.     It being a  beneficial  legislation, a  Court of law is to see to the interest of the  aggrieved person more than that of  the     Insurer,   “Pending action” as contained in Condition No. 19 of the Insurance Policy means not only suit or other legal proceedings before a Court but also means and includes any legal action of claim pending before the authority—Insurance Act, 1938.

Sadharan Bima Corporation Vs. Sanjib Kumar Das and another ,14 BLD (HCD)109

NEW LAW NEED FOR RICKSHAW-VAN IN BANGLADESH

September 13, 2014 in Publication

Todays world Bangladesh may be the only country allowing manually pulling cycle rickshaw or van. From the Mughol period the rickshaw & Van have been using as an environment friendly and cheapest public transportation running manually by human. Although Bangladesh is the only country allowing a human pulling another human which is also in one sense a slavery prevailed in the 15th century but as a cheaper and environment friendly transportation rickshaw-van is so popular among the middle-class which is the core reason, the rickshaw-vans are running with great role in the communication sector for last couple of century.

There are millions of van-rickshaw are running all over the country including more than 2 Hundred Thousands of van-rickshaw (in only Dhaka City Corporation (North and South) are running which ensuring minimum one family to maintain their livelihood on each van-rickshaw. In Bangladesh Rickshaw-van are so general vehicles that can cover up the widest area of the country but unfortunately there is no codified rules or regulations regarding the proper management and controlling of those rickshaw-vans.

 

In absence of any codified law being one of the oldest occupation like 2/3 hundreds of years the van-rickshaw pullers had never faced any serious problems in continuing their occupation smoothly though sometimes the law enforcing agency or other authorities created unnecessary hindrance but the van-rickshaw pullers never be able to get any legal support due to want of proper and effective rules.

There are thousands of rickshaw & van which are manually operated but the police and traffics very often creating obstacles in running those vehicles in the name of violating traffic rules or wrong entering into any particular road or non-following of lane etc though they have regular license plate issued from the City Corporation. In this regard it is very interesting  that there is no effective rules providing the process for issuing license or determining the qualification of the drivers or even any guide line to that effect.

 The rickshaw and van drivers are plying those vehicles from beyond memorable time and considering the role of those rickshaw-vans in the communication sector the authority should taken some needful steps but very unfortunately the lawmakers failed to observe the necessity of those manual vehicles and intentionally tried to reduce the numbers of rickshaw-vans in Dhaka city as well as the whole country. It is very unfortunate of having no rules or act in-exist even define the rickshaw-van rather a single section provided in The Dhaka City Corporation Ordinance, 1983 ie 2(42) “vehicle” means wheeled convenience capable of being used on a street which not only incomplete but doesn’t at all near to describe a rickshaw or van. Under the Dacca (Dhaka) Municipal Ordinance the then Dacca Pourasabha was the only authority to frame necessary rules and regulations regarding management and regulation of the van-rickshaws and the Commissioner framed a bye-laws namely Traffic Control & Public Vehicles Bye-Laws on 10.07.1973. After a minute scrutiny of the said bye-laws it has been found that the same is neither provided any rules for issuing license to the rickshaw-van drivers nor provides any thing giving those deprived rickshaw-van drivers a right legally be claimed.

In that bye-laws the then Dacca Pourasabha now The Dhaka City Corporation (North & South) is the only licensing authority but after 1986-87 no new license has been issued to the Rickshaw and Van Drivers and so far the bye-Laws containing no provisions protecting the rights of the Rickshaw and Van Drivers, no body can challenge any action of the authority taken wrong or rightly.

So many rickshaw-van pullers individually or under some societies or federation  submitted hundreds of applications by following the process instructed by the City Corporation authority for licenses in last couple of decades but the so-called authority did neither allow nor disallow those applications in last 27 years and due to non-exist of proper rules the van-rickshaw pullers could not take any legal actions against the said arbitrary in-action.

 The Dhaka city corporation (North & South) tried to stand their authority for regulating and controlling rickshaw- van on the  Bye Laws namely Traffic Control and Public Vehicles Bye-Laws published in the year 1973 but there is no provisions empowering them to restrain or stop Rickshaw-Van in Dhaka City.  The so-called bye laws has been incorporated for only the then Dacca Pourasava but there is no rules or any thing whatsoever for the entire country.

 In the present situation when there is no specific law or rules as regards to the controlling and managing rickshaw-van in the country then there is a chance of being unnecessarily obstructed by misusing or mal-using the power of the law enforcing agencies which even cannot be accountable on excuse of having no guidelines or law.

 There are millions of rickshaw and vans running all over the country then a complete act or regulation is very much necessary to bring all those vehicles and the drivers under the provisions of the state law so that they can legally run their business and they will be able to obtain required license or permits by paying government taxes and fees which also can be a great source of revenue for the country at the same time ensure protection of the occupation by the rickshaw pullers. On the other hand for protecting the occupational right thousands of rickshaw pullers are demanded law full protection as reported in numerous daily news papers of the country.

 Due to having no effective law or insufficiency of having up to date rules the government are depriving from getting huge revenue from the millions of van-rickshaw pullers which is by no means an acceptable scenario in a democratic and developing country. It is relevant to mention that by taking the advantage of having no law or rules some corrupted officials in various authority or law enforcing agency are creating serious hindrance of running those rickshaw or vans and in some cases they are collecting huge bribes from those poor van-rickshaw pullers which are also reported in the newspapers in various news papers.

 Rickshaw-van are running totally environment friendly and it is not easy to found a person whoever never ride a rickshaw but very regretfully and unfortunately our legislatures are failed to realize the fact and the reason best to known to them, they yet not enact any enactment in respect of professional rickshaw van pullers. The Government or the legislatures not only failed to enact necessary law and rules for the rickshaw and van but also failed to take even a policy. After liberation it is crystal clear that the government took a dual standing in allowing the running of rickshaw-vans in the country as the authority did not make any declaration prohibiting rickshaw-van or even did not frame required rules or regulation for controlling them is self contradictory and by all means cannot be accepted.

 It This modern era in a civilized country the legislatures are too busy to cover up all the issues and matters by legislating new laws, rules and regulations each and everyday but in Bangladesh specifically in respect of rickshaw or van or any other country made vehicles there are no up to date law or rules resulting a huge turmoil situation in the communication sector.

 Until or unless there is law or rules no act can be said illegal or unlawful but very surprisingly it is evidenced in Bangladesh that a general view has been developing that running of those manually  operated vehicles are not legal and as such new enactment is necessary to bring smooth and peaceful environment in communication sector. A major number of peoples specially the young generation are utterly failed to realize the importance of country made vehicles because they are in a daydream of having a luxurious imported four wheeler with digital multimedia and chill air condition, don’t care how many billions of revenue cost for it.

Lastly on considering all aspects it is now impossible to deny the great importance of those poor van-rickshaw pullers and the environment friendly manual vehicles now its an epoch need to protect those hardy individuals.

VISA for USA when denied on reasoning Misrepresentation or Fraud

May 26, 2014 in Publication

Today our topic is refusal of an application praying for visa of United States of America (USA) and our concentration only on the issue when the visa application denied for Misrepresentation or Fraud which has been deals under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA).

The visa applicant has been  refused, or found ineligible, for a visa under section 212(a)(6)(C)(i) because he attempted to receive a visa or enter the United States by willfully misrepresenting a material fact or committing fraud. This is a permanent ineligibility, so every time  apply for a visa, the visa applicant will be found ineligible for this reason.

Section  212(a)(6)(C)(i) of INA bars an alien/ visa applicant from receiving a visa or admission into the U.S. if this alien has previously obtained or attempted to obtain a visa, other documentation, admission or other benefit under the Immigration and Nationality Act (INA), by means of fraud or by willfully misrepresenting a material fact. Fraud is a false representation of a material fact with knowledge of its falsity and with intent to deceive a consular or immigration officer, who believed and acted upon this false representation. Misrepresentation is an assertion which is contrary to the facts. INA 212(a)(6)(C)(i) penalizes willful and false misrepresentation of a material fact. Unlike fraud, material misrepresentation does not require intent to deceive. Since proof of an alien’s intent to deceive would be hard to come by, most findings of inadmissibility under INA 212(a)(6)(C)(i) often involve material misrepresentation rather than fraud. Misrepresentation requires an alien’s affirmative act. Silence or failure to volunteer information does not in itself constitute misrepresentation under INA 212(a)(6)(C)(i). Misrepresentation must be willful, which means that it must have been done knowingly and intentionally, and not made accidentally, inadvertently, or in an honest belief that the facts are otherwise. Misrepresentation is willful if the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement. Most important, misrepresentation must be material.

In Matter of S- and B-C-, 9 I&N Dec. 436 (A.G. 1961), the Attorney General held that a misrepresentation made in connection with an application for a visa, admission, other documents, or other benefits is material if either:

(1) the alien is inadmissible on the true facts; or

(2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination of inadmissibility.

The first part of this definition of materiality is known as the independent or objective grounds of inadmissibility. The second part is known as the rule of probability. Under the Attorney General’s definition, we can test whether a misrepresentation is material by answering the following questions. First, does the evidence establish that the alien is inadmissible based on the true facts? If it does, then the misrepresentation was material. Second, did the misrepresentation tend to shut off a line of inquiry? If it did not, then the misrepresentation was not material. If it did, then we ask the third question – would that inquiry have resulted in a proper determination that the alien was inadmissible? A misrepresentation tends to shut off a line of inquiry if it has the capacity of foreclosing certain information from the consular or immigration officer’s knowledge. It must have the capacity of foreclosing further investigation. Let’s illustrate these rules with examples. Let’s say an alien obtains a visa using a passport under a different name. Under INA 101(a)(30), a passport must show the bearer’s identity. So a passport issued under a false identity is not a valid passport. Under INA 212(a)(7)(B), an alien who does not have a valid passport is inadmissible. Thus, an alien who obtains a visa using a passport with a false identity has made a material misrepresentation because the true facts show that he does not have a valid passport. Hence, the misrepresentation was material based on an independent ground of inadmissibility. Therefore, this alien is inadmissible under INA 212(a)(6)(C)(i), as well as under INA 212(a)(7)(B).  A misrepresentation is material if the fact concealed renders an alien inadmissible under the various provisions of INA 212(a). If the facts concealed do not make the alien inadmissible under INA 212(a), then we analyze the misrepresentation under the rule of probability. Let’s say an alien applying for a visitor’s visa submits falsified information on his employment and property ownership to show ties in his home country. If the consular officer issued a visa and he would not have issued it had it not been for the falsified documents presented, then the alien’s misrepresentation was material because it tended to shut off a line of inquiry relevant to the alien’s visa eligibility. An alien found inadmissible under INA 212(a)(6)(C)(i) for fraud or material misrepresentation is forever barred from obtaining a visa or admission into the U.S. unless the alien gets a waiver of inadmissibility.

What is waiver? its termed as waivers of Ineligibility.

If someone is ineligible for a visa based on one or more of the laws listed in Section 212(a) of the Immigration and Nationality Act, he may be able to apply for a waiver. Nonimmigrant Visa Applicants – If anyone can apply for a waiver, he must mail Form I-601. If anyone can apply for a waiver, the consular officer at the U.S. Embassy or Consulate where he applied will inform him how to apply.

A visa applicant who was denied a visa for a particular ineligibility to apply for a waiver of that ineligibility. The Department of Homeland Security (DHS) adjudicates all waivers of ineligibility. Waivers are discretionary, meaning that there are no guarantees that DHS will approve a waiver. If the waiver is approved,  a visa will be issued.

The visa category that  is applying for will determine whether a waiver of ineligibility is available. The consular officer interviewing the alien or applicant will tell him if he may apply for a waiver and will provide detailed instructions for how to apply.

We are suggesting and advising our clients and all the readers of this post, so far the rejection of visa application for misrepresentation or fraud is a lifetime bar and the uncertainties of obtaining a waiver, everyone  should be very very careful and confirm to disclose information and to submit any document.

Lawyers in Bangladesh

November 7, 2013 in Publication

Today’s Bangladesh is not a country counting to the bottom but due to its standard law it became a country of rule of law. Though the enforcement of existing law is not cent percent but the legal system being a very old and well established system in the world has its identical presence. The Supreme Court is the basic and highest structure in the country for ensuring justice in the society and the lawyers, advocates, counsel, barrister and solicitors doing a great job by assisting the court in implementing justice. In the society most number number of disputes come are civil, criminal, writ, land litigation, banking, company, corporation, real estate and other constitutional issues to which has specific law and different forum for adjudication. The lower judiciary have its seat in each and every unit of the local government and the peoples irrespective of poor or rich is able to get justice and relief they sought for. In the criminal matter firstly the accuseds are praying for bail and the same is granted as per law and some times the high court enlarged the accused on bail by exercising its discretion. In the recent era in financial matter there are so many cases and suits are coming like artha rin case, banking case, company matter and other corporate issues which directly filed before both the lower courts and high courts. In most of the cases the company and corporation they have their own legal adviser who conducts the cases and according to law of Bangladesh there are wide scope to dispose of a dispute out of court by invoking mediation, negotiation or arbitration process. A new thing is rising so quickly it is immigration and in the country there somany exclusive immigration practitioners among them Lawyers Bangladesh is one of the leading immigration law chamber in the country. Being a new country Bangladesh has its own legal system since 1971 by adopting a fresh constitution in the year 1972 under the leadership of our great leader Bangabondhu Sheikh Mujibur Rahman but after his departure the democracy is in a way far from its motion resulting a legal and political crisis continuing for last 36 years resulting the country a poor and under-developing country. By born the mass peoples are very brother-hood to each other but due to poverty and mal-practice by the government there is a massive spread of corruption in every sector of the country for which the peoples concerning judicial system are ashamed of. To get rid from such situation the legal system and rule of law of the country should be modernisation by amending old law and by enabling new laws and before all this to ensure enforcement of law through the law enforcing agencies as well as court of law. The police system of the country apparently looking good but due to want of proper opportunities and other privileges the corruption has captured the said department with its dark-light for example the so-called cross-fire by the RAB in exchange of illegal means is mentioned here. Now its the duty of entire national to decide how they would like their society a society of crime free or like the present one and for this the very and very first step would be to obey the law and legal system/court system of the country.

Anti Corruption Commission Chairman, Bangladesh: The Legacy

June 11, 2013 in Publication

Bangladesh is a nation each and every spear of either political, economical or law and order situation the Judiciary needs to interfere as all the responsible corners acting like vested quarters as going to be a fact in the ugly looking show of tenure question to Chairman of Anti Corruption Commission. The Anti Corruption Commission Act, 2004 is almost a ten years old law and from the period of one-eleven for a time being the said law became the only penal law in Bangladesh. On some of the provisions the Act still suffering from ambiguity and uncertainty but there are some provision rendering no explanation like section 6 of the Act. Section 6 of the Act deals the appointment, tenure and barring re-appointment of the Commissioners of the Anti Corruption Commission of Bangladesh in which it is clearly stated in sub-section 3 of section 6 that the Commissioners will be in their office for a period of 4 years from the date of their appointment. In the Act neither in section 6 nor in any other provisions there is any exception or saving clause making the term “Appointment” to be explained with the term “Joining”. The Act is very much clear about the tenure of the Commissioner that the same must be computed from the date of appointment not joining.

The present Chairman of Anti Corruption Commission has been appointed on 2nd May 2009 and after 10th June 2013 (4 years 1 month and 9 days) he still performing in his office the law says there is no scope for re-appointment then the question how Mr. Chairman continuing in his office?

An Advocate of Supreme Court of Bangladesh already filed a writ petition challenging the continuation of Mr. Chairman of ACC in the office after expiring of his tenure and one Divisional Bench of the Hon’ble High court already issued rule nisi in this regard.

Now its time to have a little look onto the issue of expiring tenure of Mr. Chairman of ACC in Bangladesh as he himself stated that after his appointment on 2nd May, 2009 due to continuation in the office by his PREDECESSOR he joined later on 23rd June, 2009. The Hon’ble Law minister of Bangladesh also told that Mr. Chairman of ACC joined a later time after his appointment so his performing in the office is lawful.

After issuance of rule from court the Law Minister and the Chairman ACC made their legal position clear by this time and the nation waiting for another issue to be solved by the Judiciary. The Judiciary is already over-burden and in such a situation a new case added in which some responsible corners already make their legal opinion and now its the time for Court not only to adjudicate the issue involved but to expand the umbrella over the vested quarters.

Judgment of War Criminal: Abdul Quader Molla

February 7, 2013 in Publication

Here is the operating portion of the Judgment given by the International Crimes Tribunal-2 in the case against the war criminal namely; Abdul Quader Molla.

International Crimes Tribunal-2 (ICT-2)
[Tribunal constituted under section 6 (1) of the Act No. XIX of 1973] Old High Court Building, Dhaka, Bangladesh
ICT-BD Case No. 02 of 2012
[Charges: crimes against Humanity and aiding & complicity to commit such crimes as specified in section 3(2)(a)(g)(h) of the Act No. XIX of 1973]
The Chief Prosecutor Vs.
Abdul Quader Molla
Before
Justice Obaidul Hassan, Chairman
Justice Md. Mozibur Rahman Miah, Member Judge Md. Shahinur Islam, Member
For the Prosecution:
Mr. Golam Arief Tipoo, Chief Prosecutor Mr. Mohammad Ali, Prosecutor
For the Accused :
Mr. Abdur Razzak, Senior Advocate, Bangladesh Supreme Court Mr. Ekramul Haque, Advocate, Bangladesh Supreme Court
Mr. Abdus Sobhan Tarafder, Advocate, Bangladesh Supreme Court Mr. Tajul Islam, Advocate, Bangladesh Supreme Court
Mr. Farid Uddin Khan, Advocate, Bangladesh Supreme Court Mr. Sajjad Ali Chowdhury, Advocate

…………………………………………………….
XXIV. VERDICT ON CONVICTION
427. For the reasons set out in this Judgement and having considered all evidence, materials on record and arguments advanced by the learned counsels in course of summing up of their respective cases , the Tribunal unanimously finds the accused Abdul Quader Molla
Charge No.1: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No.2: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No.3: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No.4: NOT GUILTY of the offence of ‘abetting’ or in the alternative ‘complicity’ to commit murders as ‘crimes against humanity’as specified in section 3(2)(a)(g)(h) of the Act of 1973 and he be acquitted thereof accordingly.
Charge No.5: GUILTY of the offence of murders as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No.6: GUILTY of the offences of murder and rape as ‘crimes against humanity’as specified in section 3(2)(a) of the Act 1973 he be convicted and sentenced under section 20(2) of the said Act.

XXV. VERDICT ON SENTENCE
428. We have taken due notice of the intrinsic magnitude of the offence of murders as ‘crimes against humanity’ being offences which are predominantly shocking to the conscience of mankind. We have carefully considered the mode of participation of the accused to the commission of crimes proved and the proportionate to the gravity of offences. The principle of proportionality implies that sentences must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender. In assessing the gravity of the offence, we have taken the form and degree of the Accused’s participation in the crimes into account.
429. We are of agreed view that justice be met if for the crimes as listed in charge nos. 5 and 6 the accused Abdul Quader Molla who has been found guilty beyond reasonable doubt is condemned to a single sentence of ‘imprisonment for life’ And for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973. Accordingly, we do hereby render the following unanimous ORDER on SENTENCE.
Hence, it is
ORDERED
That the accused Abdul Quader Molla son of late Sanaullah Molla of village Amirabad Police Station Sadarpur District-Faridpur at present Flat No. 8/A, Green Valley Apartment, 493, Boro Moghbazar PS. Ramna, Dhaka is found guilty of the offences of ‘crimes against humanity’ enumerated in section 3(2) of the International Crimes (Tribunals) Act, 1973 as listed in charge no.s 1, 2, 3, 5 and 6 and he be convicted and condemned to a single sentence of ‘ imprisonment for life’ for charge nos. 5 and 6 And also for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973. The accused Abdul Quader Molla is however found not guilty of offence of crimes against humanity as listed in charge no.4 and he be acquitted thereof.

However, as the convict Abdul Quader Molla is sentenced to ‘imprisonment for life’, the sentence of ‘imprisonment for 15 years’ will naturally get merged into the sentence of ‘imprisonment for life’. This sentence shall be carried out under section 20(3) of the Act of 1973.
The sentence so awarded shall commence forthwith from the date of this judgment as required under Rule 46(2) of the Rules of Procedure, 2012 (ROP) of the Tribunal-2(ICT-2) and the convict be sent to the prison with a conviction warrant to serve out the sentence accordingly.
Let copy of the judgment be sent to the District Magistrate, Dhaka for information and causing necessary action.
Let certified copy of the judgment be furnished to the prosecution and the convict at once.

Justice Obaidul Hassan, Chairman
Justice Md. Mozibur Rahman Miah, Member
Judge Md. Shahinur Islam, Member

Administrator in Private Companies

October 26, 2012 in Publication

Private companies registered under the existing Companies Act 1994 is an artificial person having all the legal character of a Person under the meaning of being a Citizen of the country and as per the Constitution of the Peoples Republic of Bangladesh it has the same constitutional rights guaranteed under the Constitution called as Fundamental Rights specifically Article 42. In a general case a person suppose Mr. Karim doing business and someone invested in his business accruing some legal rights in benefits of the business can only go to the court in case of any fraud or illegal activities done by Mr. Karim but the Government has no right to interfere with the business as everyone has the fandamental rights to do business as well as protect his property. In the year 1994 the Companies Act ( Act XVIII of 1994 ) has been enacted and it was an amended form of the previous Company Act 1913 and very resonably in the earstwhile act or present act there is/was no such provision allowing any third party like Government to make interference in to the affairs of the companies though with the permission of the Court some sort of measures could have been taken but not directly. In the recent days an amendment in the Companies Act 1994 has been approved by the Cabinet which is yet to be enacted has already raised a huge protest from almost all concerned except some vested quarters and the undergoing amendment to
COMPANIES ACT 1994 SAYS:

After Section 202 of Companies Act 1994, Section 202Ka will be inserted as follows:

202 (Ka) Appointment of an administrator by the government: (1) Whatever is said in this law or any other law, the government will have the authority to abolish any board of directors of any company registered under this law and appoint one or more administrators for a certain period through gazette notification, specifying the causes in writing, if it seems to the government that

(Ka) (I) the business of the company is being run to cheat its lenders, shareholders or any other person, or its administrative activities are being run for fraud or an illegal aim or to harass any member, or the company has been formed with the aim of cheating or running illegal activities; or

(II) The persons involved with the formation of the company or managing it have been accused of fraud, committing illegal activities, or misconduct to any other member;

(Kha) It is necessary to protect public interest or interest of the shareholders or lenders.

(2) No administrator can be appointed under sub-clause (1) without giving scope to the board of directors to explain the activities of the company.

(3) The qualifications, tenure, scope of work, and removal of the administrator/s will be set on a case-to-case basis through a gazette notification by the government.

(4) The appointed administrator/deputy administrator/assistant administrator will be considered as a public servant under section 21 of Code of Criminal Procedure of 1860.

(5) If anybody is affected by any activity done with good intentions by an administrator or any official or an employee or anybody empowered by him under this law, or there is any such possibility, it will not be cognizable under any existing law of the land.(Translated by The Daily Star).

In a plain reading of the amendment it is apparent that the amendment is not proposed or framed for only the MLM companies like DESTINY but applicable to all companies which is not only unconstitutional but malafide too as proposed subsection (5) clearly gives indemnity to all activities of the Administrator appointed by the Government. In the present Act there are somany safeguards enumerated in the law and almost all those can be availed with the Court’s permission so it is at all not necessary to set the new amendments. In all over the world directly or indirectly the governments controling the businesses a little or wide but those country are in a good reputation where the peoples doing their business without uncalled for interferences but by attempting the new amendments the Bangladesh Government is trying to take a free license for controling the business as well as wealth of the private sector which is absolutely against the basic structure of democracy. Sections 195-221 or 233 of the Companies Act and even in some special circumstances the Government through the Registrar could have interfered in the affairs of the company then it is needless to say that the attempting amendments are not justified as the same is violation of fundamental rights as well as the constitution.

Bangladesh Bar Council Election 2012

July 19, 2012 in Publication

Bar Council election the biggest event for the learned lawyers as the Election will decide the leaders of Council the controlling and supervising body for the Advocates. After a long disputes and interference by the Hon’ble High Court and Appellate Division finally the election has been held on 18.07.2012.

Result for the Bangladesh Bar Council Election 2012 in general seats:

1. Abdul Matin Khasru (White Panel) = 13,150
2. Barrister A.M. Mahbub Uddin Khokon (Blue Panel) = 12,749
3. Khandker Mahbub Hossain (Blue Panel) = 12,477
4. A.J. Mohammad Ali (Blue Panel) = 12,326
5. Syed Rezaur Rahman (White Panel) = 12,233
6. Barrister Tania Amir (White Panel) = 12,211
7. Sanaullah Mia (Blue Panel) = 11,825

Group (Regional) Seat Result:
1. Blue Panel =5

2.White Panel=2

In total, out of 14 seats 9 seats have been secured by the Blue Panel and 5 seats have been taken by the White Panel.

Lawyers Bangladesh congratulate all the learned members and wishing a very successful period for them in Bangladesh Bar Council who will expectedly work for in-dependency of Judiciary, Rule of Law and for the Advocates.

CROSSFIRE: A DEFINED MURDER

July 6, 2012 in Publication

Fire cannot be crossed but in definition when someone suddenly came in between a fire opening from two ends the person in the middle dies calling the reason CROSSFIRE. In a scenario when at one end the law enforcing agency and miscreants at the other end the middle man dies also a crossfire but any person of the other end dies calling encounter and both of them terms in law as extra judicial killing.

Rapid Action Battalion (RAB) was established on March 26, 2004 and since its establishment,  a total of 720 (Approximate) alleged criminals have so far been killed in the name of “crossfire” or “encounter”. In the last 8 years in Bangladesh the law enforcing agency specially RAB since its inception discharging its duty as not only an enforcing agency but an executing agency also who perhaps not believe in the legal system of the country in exist. Recapping the incidents in the recent past that after any death due to crossfire the RAB by releasing press note has been firmly disclosing that after arresting any criminal while the RAB alongwith that person went to recover arms all on a sudden the associated criminals begin fire and on safety reason when RAB opens fire only the person who already arrested has been died and no body from the other side or from the RAB injured or died and at the same time RAB disclosed a series number of criminal cases pending against the person dead.

In some cases like Narshingdi Case, Kushtia Case, Sirajganj Case, Limon Case and lastly Dakat Shahid Case the statements made by the RAB through press release they reasonably creates doubt in the mind of the people about the fact and truth indicating all are cool headed not for safety reason.

Recently in a speech the Head of Delegation of the European Commission  Dr Stefan Frowein said that “It falls to the judiciary and the new National Human Rights Commission to ensure that human rights are fully enforced, not least with respect to allegations of torture and extrajudicial killings by security forces. If there is no punishment for such crimes, there is no deterrent emanating from the State and such violence becomes sanctioned, officially or unofficially. Clearly, it is important to ensure that the fight against crime and terrorism is conducted effectively, but that can only be ensured in a sustained way by respecting the rule of law.”

In the World Report 2012 the Human Rights Watch in the caption of  “Torture, Extrajudicial Killings, and Other Abuses” narrated that “Despite strong evidence that security forces were continuing to arbitrarily arrest people, often torturing and then killing them in custody, the home minister refused to acknowledge the need for accountability. Prime Minister Sheikh Hasina said her government had zero tolerance for extrajudicial killings, but failed to properly investigate allegations and prosecute the perpetrators.

On May 21, 2011, William Gomes, a representative of the Asian Human Rights Commission, was allegedly picked up by plainclothes RAB personnel and taken to a place his abductors described as “headquarters,” where he was stripped naked, had his hands and legs cuffed, was forced into stress position, and was verbally abused and threatened with physical torture. He was interrogated about his work documenting human rights violations.

In at least two cases, the Home Ministry ignored its own findings that RAB was responsible for wrongful killings. According to Odhikar, a Dhaka-based human rights organization, at least 1,600 people have been victims of extrajudicial killings since 2004. Before the Awami League came to power, its leaders had accused RAB of widespread extrajudicial killings; they now claim that all deaths occur during armed exchanges with criminals.

The military and police continue to employ torture and cruel, inhuman, or degrading punishment against suspects, violating both domestic and international law. Many deaths in custody are never investigated. According to Odhikar, at least 12 people died in custody due to police torture in 2011.

For the mass people of Bangladesh it is at least a hope that there are someone who has minimum anxiety on the issues where the days ended and no sign of rule of law but at the same time with the activities of the Manabadhikar Commission lead by the renowned Jurist and Human Rights activist in Bangladesh namely Dr. M. Mizanur Rahman the people are not only unhappy but frustrated also. After making some voice in Limon’s case who was a deliberate victim of RAB the Manabadhikar Commission did not at all open its mouth.

Though initially the so-called crossfire or encounter was appreciated by the people but ultimately the devils starts reflecting its infections and presently it has tuned into unpreventable sickness as in the criminal cases where the alleged accuseds made confessional statements alter it has been found that the same was made on fear of crossfire and by doing so the law enforcing agency sometimes hide the original criminals or the master minds.

In the recent past some grievous allegations are also made against the RAB like robbery (Chittagong Majar Case), kidnapping (Arresting civil dress), trapping (By placing arms or Iaba in the house of innocent), Shumon Case, Manju Case and finally killing on contract (Two youths in Kushtia Case) and then it is the administration who needs to investigate each and every crossfire or encounter killing by the RAB or Police. The Prime Minister Sheikh Hasina said that her Government has zero tolerance of extra judicial killing but the measures already taken or to be taken by her administration did not match as till date no judicial inquiry or investigation committee or body formed for inquiring into any of incidents claimed death in crossfire or encounter and then the question is whether Sheikh Hasina has no control over the administration or she does not believe what she says. The present government could not show their due responsibility in controlling or abolishing crimes in the society by making the Judiciary more independent and effective but they waste their time and brain in controlling some good thing like Grameen Bank or Dr. Muhammad Yunus not the corrupt persons involved in Padma Bridge or Share Market.

The legal position of so-called crossfire, encounter or extra judicial killings are very clear as Article 32 of the Constitution of the Peoples’ Republic of Bangladesh provides that no person shall be deprived of life or personal liberty save in accordance with law. However, legalization of extra judicial executions has reduced such constitutional guarantees to mere inscriptions and in this regard the Manabadhikar Commission and the Judiciary or even the Parliament cannot escape or watching make their mouth shut.

RAB or Police have been doing their best for enforcing peace and law but that must be in due process of law otherwise there will be no system and in future the entire country will be in danger due to its own creation of justice by way of injustice which cannot be accepted in any way. The criminals or terrors are not doing criminal activities from their birth, their living and surroundings make them criminals and only the court of law can revealed the entire truth about the alleged offense as well as its root and then the extra judicial killing cannot be a solution at all.

Conclusion: Extra Judicial Killing in its form cannot be legalize in any way otherwise between the law enforcing agency and criminals there will be no difference and the terror activities claiming legality on the reason of being not getting justice in proper way. Now the RAB and Police of Bangladesh who are already criticized a much by the both national and international arenas should stop killing peoples in the name of crossfire or encounter.

An Article by

M M Nuruzzaman

Advocate

Supreme Court of Bangladesh

Head of Lawyers Bangladesh

A Lawfirm for anyone, anywhere

IDRA Chairman obtained anticipatory Bail from High Court

April 20, 2012 in Publication

The first and present Chairman of Insurance Development and Regulatory Authority (IDRA) of Bangladesh Mr. M. Shefaque Ahmed Actuary obtained anticipatory bail in three cases filed against him. Mr. Ahmed appeared before the Hon’ble High Court on 19.04.2012 and prayed for anticipatory bail in three criminal cases and after hearing Hon’ble court granted anticipatory bail to him in all three cases. Earlier on his behalf three bail petitions were filed by Advocate M M Nuruzzaman. At the time of hearing submissions were  made that all the cases have been initiated by some fictitious persons only to harass him. As per the reports and news published in the top national newspapers like Prothom Alo, Financial Express that those false criminal cases   has been filed with the instigation of some vested quarter as Mr. M. Shefaque Ahmed starts to take tough actions against the Insurance Company engaging in illegal activities ie; misappropriating money in the name of premium, grabbing  government land etc. In Bangladesh only due to ill practices in political, commercial or in ad-ministerial departments some dishonest businessmen are allowed to make money in any way legal or illegal. Those white-collar criminals sometimes  tried to influence the entire government-machinery in their favour resulting unnecessary harassment to the persons functioning under the statutes. In a country of rule of law the Government as well as administrative and the Judiciary should take immediate actions against such dishonest businessmen for their wrong doings to ensure a fair and balanced business atmosphere which is essential for the economy of the country. It is not at all good for a government that the high officials of the statutory body in dis-charging their duties have been targeted and harassed by the so-called companies or businessmen consequently walking through the advocate chamber praying shelter of the Judiciary.