Law Chronicles Online

An Overview of Admiralty Law and Jurisdiction in Bangladesh

2011-07-12T02:20:00.011+06:00

Short History of Admiralty law in Bangladesh:

The Admiralty jurisdiction in the Indian sub-continent was established and administered during the British era. Till date, all of the laws applied in India originated from England by way of Royal Charters, Letters Patent or statute from the British Parliament since 1683. The Admiralty Courts Act 1840 was the first of a series of Acts which defined and enlarged the Admiralty jurisdiction in England. The jurisdiction was further enlarged by the Admiralty Court Act, 1861. The Colonial Courts of Admiralty Act, 1890 and the Colonial Courts of Admiralty (India) Act, 1891 were enacted to update the law in India at that time and to equate the colonial courts to that of the High Courts in England. In Bangladesh, the law was updated by Admiralty Court Act, 2000. The Act is modeled on Sections 20-21 of the English Supreme Court Act, 1981 (Now to be cited as the Senior Courts Act, 1981). Even after the enactment of the Admiralty Court Act, 2000 in Bangladesh, the substantive law of Admiralty in this jurisdiction is to be found in the Acts of 1840, 1861 and the various court decisions originating from them in the Indian sub-continent. The principles of English common law, decisions of the Superior and Admiralty courts of the United Kingdom, Australia, India and the United States as well as international maritime conventions are regularly cited in the Admiralty Court and remain important sources of authority.

Current Admiralty Jurisdiction:

The Admiralty jurisdiction is exercised by the High Court Division of the Supreme Court of Bangladesh under Section 3 of the Admiralty Court Act, 2000 and it extends to ships or air crafts whether Bangladeshi or not.

Admiralty Court has jurisdiction to hear and decide the following questions or claims regarding:

(a) Possession or ownership of a ship or its shares,
(b) Co-owners touching possession, employment or earnings of the ship;
(c) Any mortgage or charge of the ship or its shares;
(d) Damage done by any ship;
(e) Damage received by any ship;
(f) Death or personal injury occurring as a result of any fault in the ship or defective machinery and equipments;
(g) Lost or damaged goods carried by any ship;
(h) Carriage of goods in a ship, or from any contract of user or hire of any ship;
(i) Section 12 of the Civil Aviation Ordinance, 1960 or any law relating to salvage of any aircraft or ship
(j) Towage of ships or aircrafts;
(k) Navigation of a ship or pilotage of an aircraft;
(l) Necessaries supplied for management and maintenance of a ship;
(m) Building, repairing or equipping of any ship, or the expenses incurred in a port;
(n) Master or seamen wages earned on board the ship, or money or other property collectable in court;
(o) Expenditure incurred in connection with the ship;
(p) General average act or any act claimed to be general average act;
(q) Bottomry and respondentia;
(r) Forfeiture of goods or any declaration that the goods were unfit for use, or claims over jurisdiction;

Actions in rem:

Action in rem can be brought against a ship in cases of:

1) All claims relating to possession or ownership of a ship or its shares, or its registration certificate, log-book or any necessary certificates regarding conveyance and navigation of ships, or recovery of its title deed;

2) All questions arising between the co-owners touching possession, employment or earnings of the ship;
3) Claims in respect of any mortgage or charge of the ship or its shares;
4) Claims arising from bottomry and respondentia;
5) Where there is a maritime lien or other charges, then against a ship, aircraft or property;

Also, if any person is liable in an action in personam as the owner or hirer or the person in possession or control of a ship in the following cases, then an action in rem may also lie against the ship beneficially owned by him (including a sister ship):

1) Claims for any damage done by any ship;
2) Claims for damages for the damaged ship;
3) All claims relating to death or personal injury on the ship;
4) Claims for lost or damaged goods carried by any ship;
5) Any claim arising out of carriage of goods in a ship, or from any contract of use or hire of any ship;
6) All claims arising from Section 12 of the Civil Aviation Ordinance, 1960 or salvage claims;
7) Claims relating to towage of ships or aircrafts;
8) Claims over navigation of a ship or pilotage of an aircraft;
9) Claims relating to necessaries supplied for management and maintenance of a ship;
10) Claims arising out of building, repairing or equipping of any ship, or the expenses incurred in a port;
11) Claims by the master or seamen for wages;
12) All claims by the master, consignor, charterer or agent of a ship over expenditure incurred in connection with the ship;
13) Claims arising from general average act or any act claimed to be general average act;
14) In cases of claims in respect of payment for towage or pilotage of an aircraft.

Suits can be instituted against the owner or parties interested in the vessel or other property proceeded against instead of by name if circumstances so require. However, no person can bring an action in rem for a claim against the Republic, or to arrest, seize or sell any ship or aircraft belonging to the Army, Navy, Air force, Bangladesh Rifles, Bangladesh Police or Coast Guards of the Republic

Action in personam:

An action in personam will lie in all the above cases. However, additional conditions apply in case of in personam actions in collision cases (including damage, death or personal injury). Liability of the ship owner may be limited under Section 471 of the Bangladesh Merchant Shipping Ordinance, 1983. For the court to entertain collision cases, the following conditions must be met:

a) The usual place of residence or business of the defendant is in Bangladesh;

b) The cause of action arose in the internal or territorial water of Bangladesh or in the periphery of any port in Bangladesh;

c) There is already a suit which is either pending before, or already decided by, that Court, which arose from the same or related set of facts.

d) The plaintiff, if he instituted a suit against the same defendant in a Court outside Bangladesh on the same or related set of facts, withdraws from the suit or otherwise terminates it.

e) The defendant in such claim accepts or agrees to accept the jurisdiction of the Court.

The maximum court fee for Admiralty suits is Taka. 1,00,000/= , except for claims by the master or seamen for wages earned on board the ship, or money or other property collectable in court as wages of the master or seamen under Merchant Shipping Ordinance, 1983.

Arrest of Ships:

In suits in rem, a warrant for the arrest of property may be issued at the instance either of the plaintiff or of the defendant at any time after the suit has been instituted to obtain security for the claim or to bring the parties within the jurisdiction. No warrant of arrest shall be issued until an affidavit by the party or his agent has been filed stating the name and description of the party at whose instance the warrant is to be issued, the nature of claim or counter-claim, the name and nature of the property to be arrested, and that the claim or counter-claim has not been satisfied. Additional rules apply for wages, possession, bottomry and salvage claims. The Court may in any case, if it thinks fit, allow the warrant to issue, without all required particulars. In a suit in rem, any person not named in the writ may intervene and appear on filing an affidavit showing that he is interested in the property under arrest. The party desiring to prevent the arrest of any property may cause a Caveat against the issue of a warrant for the arrest to be entered in the Registry.

Once arrested, a party may obtain the release of any property by paying into the Registry the sum in which the suit has been instituted or by satisfying the court that there is no obligation to pay. Where security is to be given in the Registry, it shall be given according to the rules and practice of the Court as to security in the case of an attachment before judgment in an ordinary civil suit. Usually security is taken in the form of bank guarantees from local banks. Cargo arrested for the freight only, may be released by an order of a Judge in Chambers upon proof by affidavit of the value of the freight and by paying the amount of the freight into the Registry. A party in a suit desiring to prevent the release of any property under arrest can enter a caveat against the release of the property in the Registry.

Enforcement of Judgment:

The Court may enforce the payment of judgment by attachment against the party on whose behalf a caveat has been entered, and by the arrest of the property if no caveat has been entered. Every sale under the decree of the Court shall be made by the Marshal in like manner as a sale of moveable property in execution of a decree in an ordinary Civil suit, unless the Judge otherwise orders. In practice, if bank guarantee is provided, it will be en-cashed in favour of the judgment-debtor. Foreign judgments and arbitration awards are also enforceable.

Evolution of Islamic Jurisprudence Part 2

2011-05-17T00:41:00.007+06:00

The Foundation Stage

The first stage of the development of Fiqh covers the last twenty three years of the life of the Prophet (PBH) (609-632 C.E). The two main sources of law were introduced in that time; the Quran and the Sunnah. The Quran laid down the blueprint of man's way of life, and the Sunnah filled in the details of how it was to be done. Many of the revelations were situational, therefore the context in which they were revealed was clear to everyone. There were times when the Prophet (PBH) actually waited for a legal provision to be revealed before deciding on a case. At times, the provisions were sent in stages and sometimes there were changes made to it. Such changes have been identified as abrogated verses. In any way, the foundation of the Shaaria was laid down gradually, to make the transition from darkness to light easy.

Meccan Period(609-622 C.E):

The first thirteen years of this period is termed the Meccan period. The Prophet (PBH) was born in Mecca and he received his first revelation in Mecca. There he spent thirteen years preaching. This was the early Muslim period. Muslims were few at that time. Those who became Muslims were under severe oppression. Even the Prophet (PBH) and his whole tribe was subjected to a inhuman three year social and economic boycott by their own tribe. The early revelations were more closely related with the basics of faith and spiritual development. They dealt more with the afterlife than with the provisions of life on earth. The Muslim had no authority over the then society and the early Meccan revelations thus concentrated on their spiritual growth, laying the foundation for a their future role. This foundation was non the less crucial. The bigger challenges for the new Muslims were yet to come and this had made them stronger believers. The details of Shaaria began to be revealed during the last eleven years of the Prophet (PBH), when he had migrated to Madinah and established a free Islamic State there.

Madinah Period(62-632 C.E):

The migration (Hijrah) marks the beginning of this era. The Prophet (PBH) was proclaimed as the ruler of Madinah after his migration there. The first Muslim constitution was drafted then, called the Madinah declaration. This document laid down the foundation of the new state. It provided for all the inhabitants of the new state-Muslims, Jews, Christians and Non-believers and made the Prophet (PBH) de facto head of state. With the framework under place, the Islamic society and legal order started to develop. Logically, it was during this period that the socials and economic laws began to be revealed. At this stage, intoxication and pork was prohibited and punishment for fornication, adultery, theft , murder etc were revealed.

The foundation of Sharia was laid down during this period. In Madinah, legal revelation came regarding family , property, trade, crime and war. Needless to say, some of the provisions shook the very foundation of pre-Islamic pagan norms, where as others merely varied it.

Examples of law during these periods:

Family Law:This is one area where Islam made landmark reforms. Pre-Islamic Arabia had little rights and privileges for Women. They were subjected to the whims of Men. Islam firmly established the rights concerning women. Existing social position of women were elevated almost overnight. Before Islam, there were only loose customs in the Arab society regarding family law. Male polygamous relationship had no limits nor any boundaries. Islam manifestly provided with a strong foundation in this area, consolidating the primary unit of society. Marriage was clearly defined and every other form of co-habitation was banned. Islam totally forbade uncontrolled and whimsical relationships between man and woman. Wife's right over her husband and husband's right over her wife was clearly marked. Free women were free to choose their husbands. As it is said in the Holy Quran :

“Wives have the same rights on husbands as the husbands have on them in accordance with well known principles” (2:228)

Marriage was established as the only acceptable relationship between man and woman. Forms and types of marriages have been subjected to debates by later scholars. It is held by the Sunnis that Mu'tah (temporary marriage) was made illegal at this period, whereas some of the Shi'ite believe that it was never abrogated. Nonetheless, it was a marriage in all its sense. It is also debated whether concubinage is permitted in Islam. Majority believe that it was not allowed in its popular sense. From the Holy Quran, it appears that relationship with slave girls were to be also under the veil of marriage, albeit of a different form.

“ And marry those among you who are single and those who are fit among your male slaves and your female slaves; if they are needy, Allah will make them free from want out of His grace; and Allah is Ample-giving, Knowing.” (24.32)

There is nothing to suggest otherwise. The Prophet (PBH) is said to have taken more wives than the usual limit of four. Therefore some have suggested that except four the rest were concubines. However this is a wrong presumption. He had wed locked all of them in marriage (including Mary the Copt). His crossing the limit of four was a special divine sanction ( likewise he had to pray special prayers which the other Muslims did not have to pray). Mahr was made mandatory for men. It was to be given by the groom to the bride before they consummated their marriage. Detail provisions relating to Mahr was kept flexible.

By a popular tradition from the Prophet (PBH), divorce is a matter most hated by Allah which was made legal. Naturally, as Islam had made systematic provision for the union of man and woman, so did it make systematic provisions for their separation. Both man and woman could initiate divorce. There had diverse range of opinion regarding details of divorce among the scholars. However, there is no doubt that the foundation of it was laid during this time.

Pre-Islamic Arabia did little justice to children. In many cases women would have multiple partners and have multiple children. There was no way of knowing which children belonged to whom. In such circumstances, the woman would designate a child belonging to any man. Islam eradicated this practice.

Trade and Finance Law: Trade law was relatively flexible during this period. The basis of contract was that it had to be mutually agreed and the content would itself had to be legal.Strictest prohibition was ordered regarding interests and trades that resemble gambling. Trade with Jews and Christians were allowed. The basic law of the market was that the traders must appropriately weight their products before selling, that is the goods must match their description and weight as stated. The law of finance was not very complex at this stage. However, the basic principles were established during this time. The sophisticated law of Islamic finance now being followed all around the world today in Islamic banking is derived from the foundation established during this era.

Criminal Law: Severe punishment was enacted for murder, adultery,rape and treason. They carried the death penalty; but had strong procedures to be followed before offenders can be sentenced. The Quran manifestly gave direction on theft, fornication and slander among others. The principle was that the offender would receive equal wounds against the wounds he inflicted upon others. Law of evidence was also set out during this time.

Law of War: Along side Arab customary law of war, Islam provided solid rules and regulations. The division of the booty of war was a major one. For example, a portion of the booty was divided among the soldiers, a portion to the state etc. The Prophet (PBUH) had specifically prohibited the killing of unarmed civilians. Even a tree should not be destroyed. [To be continued...]

Fatwa: to be or not to be, that is the question

2011-04-30T13:51:00.002+06:00

The legality of pronouncing ‘fatwa’ in Bangladesh is before the honourable appellate division of the Supreme Court of Bangladesh. A local Moulvi had declared his neighbour’s marriage to his wife void because of oral pronouncement of talaaq expressed a year earlier and based on that had forced ‘hilla’ marriage of the women. The High Court division while declaring such divorce to be non-binding also declared pronouncement of fatwas as illegal being unconstitutional.

A ‘fatwa’ is an opinion, more particularly a legal opinion. Being one’s opinion, a fatwa in Islamic jurisprudence is fundamentally non-binding. In Islamic law, for an opinion to be appropriately termed as ‘fatwa’, it must come from a Mufti (a consulting canon-lawyer in Islam, who upon application gives fatwa or legal opinion on points of canon-law- Encyclopaedia Britannica). Mufti is the active participle of the word ‘afta’ which means to decide a point of law. Even a mufti’s fatwa is not binding. Some schools of thought suggest that a fatwa might be binding only on the Mufti issuing it. The Islamic Fiqah Academy (IFA) in Saudi Arabia is the most prominent body in the Muslim world to decide on various religious matters. It is established under the organization of Islamic Countries (OIC) and has members from most Muslim countries. Even fatwa issued by the IFA is not binding and cannot be directly enforced. A fatwa can only become binding and enforceable when it is given to a Qadi or a Judge in assistance in a case before him and he accepts that fatwa and puts it in his verdict. Without the sanction of a Qadi or a Judge, fatwa is not binding or enforceable and no punishment can be given based on such fatwa. During the Muslim period in the Indian sub-continent, Muftis appeared before the courts regularly to assist the Qadi decide on points of law. The most famous collection of fatwa in this region was compiled during the reign of Emperor Aurangazeb under the name Fatwa-e-Alamgiri (1663). Another famous collection is the ‘Hedaya’. Both are authoritative work.

It is very saddening to see the misuse of fatwa in Bangladesh by a section of village elders who have no or little knowledge about Islamic law. However, these types of practices are not unique to Muslims alone or to Bangladesh. The Hindu village panchayets in many villages of India and tribal regions of Pakistan-Afghanistan border are infamous for having a parallel quasi-judicial system based on local customs and practice. It is not uncommon for such village councils to deliver and execute death penalties based on insufficient evidence, often by cruel means. Such practices are illegal under any constitution of the Indian sub –continent and also in Islamic law – specially where proper courts have full jurisdiction to decide such matters.

The people of rural Bangladesh are ignorant and lack access to justice. It is not easy to stop this. People in villages go to their village Moulana or Moulvi all the time to seek guidance on various religious matters. Neither the Moulvi nor the villagers are aware of the formers capacity to decide matters of Shari’ah and pass verdicts. But this problem cannot be solved by declaring fatwa as illegal. Rather, the enforceability of fatwa without the sanction of a court should be declared illegal. Expression of opinion and thoughts is a guaranteed fundamental right under the constitution and the same applies to fatwa as well.

Awareness should also be raised among the rural population and the village Moulvis regarding the misuse of religious authority. A verdict from the Supreme Court affirming the High Court division’s judgment and thereby making issuance of fatwa illegal will create more problems than it will solve. The illiterate ignorant people of rural Bangladesh lack the capacity to interpret such issues; otherwise they would not have fallen into such error in the first place. With more than 85% of the population being Muslims, perhaps it would be a good idea to have a formal body with the authority of issuing fatwa, as in India and Saudi Arabia. With proper authority vested in a body, such indiscriminate misuse of fatwa may cease.

In Perspective: The Fifth Amendment Judgment and Reprinting the Constitution

2010-12-11T15:28:00.004+06:00

“We are under a Constitution, but the Constitution is what the judges say it is… “

-- Charles Evans Hughes, 11^th Chief Justice of the United States.[1]

ADNAN M L KARIM

Barrister-at-Law

The Supreme Court has declared the Fifth Amendment to the Constitution illegal and void ab initio; condemning military rules in explicit language[2]. Against this backdrop, a special parliamentary committee has been formed which is understood to have the responsibility of proposing constitutional reform to Parliament, taking into consideration this judgment.

In this respect, the Ministry of Law, Justice and Parliamentary Affairs has taken steps to reprint the Constitution in light of the decision of the Supreme Court. Different views have been expressed on the issue of reprinting the Constitution after the Fifth Amendment judgment. Some observers have expressed the view that this should be done after Parliament has amended the Constitution as per the judgment whereas others have noted that the Constitution was reprinted without going through Parliament after the judgment of the Eight Amendment case[3] and the same precedence should be followed now. However, there is more to this than just the matter of reprinting the Constitution. Both the judgment of the Appellate Division and the High Court Division run almost 500 pages and will be regarded as landmark decisions in our Constitutional jurisprudence along with the Eight Amendment Case. The matters related to the judgment are complicated and technical in nature and need to be critically examined to understand the issues that have far-reaching implications. All martial law instruments are undoubtedly illegal under the Constitution and therefore cannot change the Constitution but at the same time the question is whether Parliament can cure that fault? The Court answered it in the negative. Had there been no Act of Parliament (in the form of Constitutional amendment) ratifying the martial law instruments, the answer would have been obvious.

Judicial Review of Act of Parliament:

The Constitution of Bangladesh states that the Prime Minister shall exercise the executive power of the Republic[4] and the legislative powers shall be vested in Parliament[5]. The Constitution does not say anything about vesting of judicial power, unlike the U.S Constitution[6]. Furthermore, there is no explicit authority given to any court to invalidate an Act of Parliament in the Constitution. However, the sub-continental Superior Courts have invalidated Acts of Parliaments following principles of constitutional law as applied in the famous decision by Chief Justice Marshall in Marbury Vs Madison[7] . Since both the United States and India are federations, invariably the Superior Courts in those jurisdictions are called on to decide when there appears to be any conflict between state and federal legislation or a question of legislative competence arises. Our Courts have taken the view that not only that they have the authority to challenge decisions of the executive branch but also that of the legislature by invalidating any Act of Parliament if it violates the Constitution even if it is an amending Act[8].

High Court Division’s power of Judicial Review:

The power of judicial review of the High Court Division is evoked under Article 102 of the Constitution. Article 102(1) empowers the High Court Division to give directions or orders to any person or authority as may be appropriate to enforce any of the fundamental rights conferred in Part III. For cases other than Fundamental Rights, Article 102 (2) empowers the High Court Division to make an order:

i. directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do;

ii. declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect;

iii. directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner or

iv. requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.

These are analogous powers that the English Superior Courts had under the prerogative writs of mandamus, certiorari, prohibition, habeas corpus and quo-warranto. Relief in the form of ordinary declaration and injunction is available seperately to the English Courts[9], but such power is not separately granted by the Constitution but implicit within the language of Article 102 (2). Therefore, if an Act of Parliament were to be challenged under this Article then it is most likely to be challenged by way of Certiorari in the form of Article 102(2) (a) (ii).

Scope of remedy granted:

Certiorari is now called quashing order. A quashing order is an order of the High Court by which decisions of an inferior court, tribunal, public authority or any other body of persons who are susceptible to judicial review may be quashed. If the decision is quashed, the decision maker may be free to re-consider it and as long as the error of law is not repeated and no other error committed, may reach the same decision. Where the court makes a quashing order in respect of the decision to which the claim relates it may remit the matter to the decision maker and direct it to reconsider the matter and reach a decision in accordance with the judgment of the court. Alternatively, where remitting the matter would serve no purpose, the court may take the decision itself[10]. The validity of an Act of Parliament will not be questioned by the courts[11] otherwise than by way of a declaration that the Act is incompatible with European Union law or by way of a declaration given pursuant to the Human Rights Act, 1998 that the Act of Parliament is incompatible with the convention for the Protection of Human Rights and Fundamental Freedoms.

The English courts can issue a declaration of incompatibility if any legislation is found to be incompatible with the Human Rights Act, 1998 (“HRA”). If found incompatible, the declaration is made pursuant to s.4 HRA and then the relevant Minister may initiate a Parliamentary process to remedy the defect in the legislation. A declaration does not have the effect of making primary legislation invalid. Parliament remains sovereign in the HRA, but the Government may take remedial action to amend the legislation. Subordinate legislation declared incompatible can be quashed by a higher court. This declaration of incompatibility does not have any effect on the validity, continuing operation or enforcement of legislation. Similarly, even inferior courts in England and Wales are under an obligation to rely upon a rule of European Community (“EC”) law that is irreconcilable with national law. The EC law has primacy over domestic law. In England and Wales, if an Act of Parliament, statutory instrument or common law precedent is irreconcilable with EC law, all courts and tribunals are to “dis-apply” any provision of that Act, instrument or common law. The offending Act or instrument is not struck down or quashed, but merely becomes unable to be applied.

The Constitution does not specify the nature of relief that may be granted for breach of Fundamental Rights and the scope is wide[12] since “any” appropriate order or direction may be given to enforce any of the Fundamental Rights. For all other instances, Article 102(2) specifies the scope and range of remedy available from the High Court Division. Article 102(2) (a) (ii) does not appear to give the High Court Division necessary power to strike down or quash any Act of Parliament in the form of Certiorari. Since Parliament does not fall under the definition of statutory public authority[13], such writ may be not be issued against Parliament. This sort of relief does not seem available from the language of Article 102(2) (a) (ii). Even if by stretching the definition of statutory public authority Parliament is included, the remedy available is in the form of a “declaration” from the Court that any act (action) done or proceeding taken by Parliament has been done or taken without lawful authority and is of no legal effect. It is difficult to contend how the jurisdiction of the High Court Division may be evoked under Article 102(2) (a) (ii) in the nature of Certiorari to strike down or nullify an Act of Parliament, let alone an amending Act, so as to cause it to be removed from the statute book.

Review under the supremacy clause:

Article 7 is the supremacy clause in our Constitution. It states:

“Article 7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution

(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

Fundamental rights are entrenched by a similar provision-

”Article 26. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.

(3) Nothing in this article shall apply to any amendment of this Constitution made under article 142.”

There is no separate provision in our Constitution that confers the High Court Division power of judicial review other than Article 102. The supremacy clause is as much of a warning to Parliament as it is guidance to the Courts. Nevertheless, invariably it is up to the Courts to uphold and apply the supremacy clause in a case of dispute and in such a case, it is submitted that the power granted by Article 7(2) should be deemed separate and distinct from the powers granted by Article 102(2). The types of remedy to be provided by the Court under Article 102 (1) and 102 (2) are well demarcated. When Article 7(2) is interpreted to give the High Court Division power to review law, such a power would be limited to a “finding” of or “holding” such a law to be in violation of the Constitution and the nature of reliefs under Article 102 (2) is not available.

Article 13 of the Constitution of India correspondents to Article 26 of our Constitution and the word “void” is used in both of these articles as well as in Article 7(2) of our Constitution. Indian Courts decided that the word void in Article 13(1) and (2) does not mean “repealed”[14], nor is a law declared void under Article 13(1) and (2) obliterated from the statute book; it cannot be said that they are still-born and non-est.[15]. The Indian Courts adopted the theory known as the theory of eclipse, which is based on the notion that a law which violates fundamental rights is not a nullity or void ab initio, but remains unenforceable and it implicitly recognizes the distinction between a law void for legislative competence and a law void for violating the Constitution[16].

The authorities in the United States take the view that while a law on a topic not within the competence of a legislature was a nullity, a law on a topic within its competence but violating Constitutional prohibitions was only unenforceable. The consequence of this is that a law void of legislative competence would have to be re-enacted but one which violates Constitutional limitation would become effective once those limitations were removed[17].

The word “void” means having no legal effect[18]. Therefore if an Act of Parliament or parts thereof are found to be offending the Constitution either under the supremacy clause or the Fundamental Rights clause, that Act or its parts will not be removed from the statute book pursuant to the Court’s order since it will amount to “repeal”. Rather, that Act or the offending part will simply cease to have any legal effect or force[19]. Once there is such a “finding” by the Court, it would be up to Parliament to repeal or amend the law to conform to the judgment of the Court and bring the offending Act in line with the Constitution. As long as that is not done, the Act or its offending part simply would remain suspended and unenforceable. Pending such repeal or amendment by Parliament, if the matter relates to breaches of Fundamental Rights, the High Court Division may give any relief that may be appropriate to achieve enforcement of those rights; and for non-fundamental rights cases, can only give relief in the form of prerogative writs as codified in Article 102 (2).

Reprinting the Constitution:

It should be understood that through the judgment the Supreme Court did not change or amend the Constitution but had “held” the Constitution (Fifth Amendment) Act, 1979 to be illegal and void[20]. Therefore, it is submitted that the Constitution cannot be merely reprinted without going through the amendment procedure in Parliament. Following the decision, Parliament could have followed the amending procedure to comply with the Court’s judgment. Alternatively, if nothing was done by Parliament or if it did not possess the requisite majority for amendment, a footnote could have been inserted in the Constitution stating the Court’s decision without removing the delinquent provisions from the Constitution. In India, the Forty Second Amendment to the Constitution was found to be unconstitutional by the Supreme Court of India. However, it was not removed from the Constitution but remained there with a footnote stating the decision of the Supreme Court[21]. In our country, the Constitution was reprinted following the judgment of the Eight Amendment case by removing the offending Article 100 and replacing it with the original provision; this was a wrong decision that has now developed into a wrong precedent.

Amending the Constitution:

The Constitution (Fifth Amendment) Act, 1979 had purported to ratify, confirm and validate all proclamations, regulations, orders and all actions taken under those martial law instruments. The High Court Division gave seven main reasons for finding those ultra vires. First, all martial law proclamation, regulation and orders during that time were illegal and void. Therefore, there was nothing for Parliament to ratify, confirm or validate. Secondly, since all martial law instruments constituted offences, ratification by Parliament was against common right and reason. Thirdly, the Constitution was made subordinate and subservient to the martial law instruments. Fourthly, the martial law instruments destroyed the basic feature of the constitution. Fifthly, ratification, confirmation and validation do not come within the ambit of “amendment” in Article 142 of the Constitution. Sixthly, there was no long title in the bill as required which makes it void (one of the primary conditions) and seventhly, the amendment was made for a collateral purpose which constituted fraud upon the people. All these grounds being in general self explanatory, a little may be said about the doctrine of basic structure.

Doctrine of Basic Structure:

The doctrine of basic structure or feature of the Constitution originated in India and was accepted by the Supreme Court of India in Kesavananda Bharti Sripadgalvaru Vs State of Kerala[22], which broadly states that the Constitution cannot be amended so that its basic structure and framework is changed. The 42^nd constitutional amendment in India was brought by Parliament, inter alia, to supersede the Court’s decision by giving Parliament vast and undefined power to amend the Constitution. The Indian Supreme Court also declared this unconstitutional[23] stating that Parliament could not use its limited power of amendment to expand it into an absolute power. It is interesting to note that neither our Constitution nor the Constitution of India or Pakistan say explicitly what the basic features are. An outline can be made from the preambles, fundamental principles of state policy or from the general framework of a Constitution. Even while expressing their views in this matter, the three Justices of the Indian Supreme Court expressed different opinions on what they considered basic ingredients of the Indian Constitution; they have given three separate lists with some elements in common. Although secularism was found to be a basic feature of the Indian Constitution, the word ‘secularism’ was not in the original preamble and did not find its way into the Indian Constitution until 1976.

This doctrine was adopted by our Supreme Court in the case of Anowar Hossain Chowdhury and others Vs Bangladesh[24], commonly known as the Eight-amendment case. The Court recognised some basic features of the Constitution like supremacy of the Constitution, Independence of the Judiciary, Democracy, Republican government, Unitary State, Separation of Powers and Rule of law. The Pakistan Supreme Court has also accepted this doctrine through various judgments and has found certain features of the Constitution of Pakistan i.e. Parliamentary System, Federalism, Islamic Provisions, Fundamental Rights and Independence of the Judiciary to be the basic features. The issue is still being hotly debated in the Constitution 18^th amendment case now pending before the Supreme Court of Pakistan after being accepted. The Supreme Court has ordered that Article 175-A has been amended through the epic 18^th Amendment be sent back to the Parliament for review as it harmed the independence of the judiciary, such referral itself being constitutionally doubtful. Rejecting this doctrine[25], the Federal Court of Malaysia held that had the framers of the Constitution intended such limitation, they would have expressly provided for that. Singapore also denied[26] the application of this doctrine.

The basic structure doctrine stipulates that even a valid Parliament with a valid amendment bill cannot change the Constitution to alter or damage its basic features. Our Supreme Court observed that Parliament had attempted to validate various Martial law instruments which themselves were illegal and so Parliament cannot legalise something which is illegal by bringing an amendment. Even if attempt is made by Parliament to make absolutely legal changes to the Constitution, as per the doctrine those changes also may be held to be invalid by the Supreme Court if the Constitution’s basic framework is altered. The Supreme Court took the original 1972 Constitution as the basis for applying the doctrine[27].

Parliament’s power of amendment:

There is no doubt that the power to amend the Constitution is with the Parliament alone and the Court acknowledged that in the Fifth Amendment judgment. Some Articles can only be amended by going through referendum (changes in the Preamble, Articles 8, 48, 56 and 142). Article 142(1) (a) gives express power to Parliament to amend by way of addition, alteration, substitution or repeal of any provision of the Constitution. Parliament itself cannot change Article 142 without referendum after getting approval of two-thirds of the members. The mode of passing an amending bill is quite different from passing a general bill under Article 80. This difficulty in enacting an amendment bill is sometimes called procedural entrenchment, devised to make amendment to the Constitution more difficult than general Acts of Parliament, which require only simple majority to enact. It means that the people have not delegated their power of amending the amendment provision of the Constitution to Parliament, but retained it through referendum[28]. Logically, if there is any curtailment of such power it can only be made through referendum, nothing less will suffice. Other than this, there is no other limitation imposed on the legislature’s power to amend the Constitution by the Constitution itself. More importantly, Article 26(3) exempts amendments made under Article 142 from the restrictions imposed by Part III. The most entrenched provisions in our Constitution are the fundamental rights bestowed under Part III, which severely limits all laws and government actions. Where even those limitations are expressly removed in case of amendments, it is difficult to comprehend how any other implicit limitation may be inferred. Limitation on the amending power of Parliament is quite expressly and precisely defined in Article 142 and reliance of the Court on the doctrine of basic structure, which itself is not expressly stated therein, to overrule an amending Act, does not appear to derive any support from the language of Article 142.

Conclusion:

The Constitution is the supreme law of the Republic because it is the solemn expression of the will of the people and all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution [29]. The will of the people being expressed only by Parliament, its power can only be curtailed by express provisions of the Constitution (e.g. Parliament cannot amend some provisions of the Constitution without going through referendum). While interpreting and applying the intention of the legislature, the Court cannot hold that the legislature had intended to circumscribe its own powers unless there is clear, unambiguous and express provision in the Constitution. Quashing or striking down an amending Act of Parliament is the highest form of judicial control over the legislature and the idea that the framers of our Constitution left such power to be inferred from the overall structure of the Constitution seems a little far-fetched. The framers certainly did not lack in expression if they so desired.

Some observers have expressed their reservations about the judgment and expressed the view that the Supreme Court had chosen and picked some provisions of the Fifth amendment for approval and had not condoned the others[30]. For example, the Supreme Court condoned the provision in the Fifth Amendment that had nullified the Fourth amendment because the Fourth amendment itself drastically altered the original Constitution. Similarly, changes made to Article 95 in the Fifth Amendment were condoned because that change was in conformity with the original 1972 constitution[31].

It will take years before the full impact of the decision in the Fifth Amendment case can be fully realised. At present only a few observations can be made:

i. It has now become impossible to make any sweeping change to the Constitution (which may be necessary); it has become too rigid. The Constitution reform committee might find it hard to suggest broad changes.

ii. The Court has tried to preserve the character and spirit of the original Constitution of 1972. This means that experience of past thirty-eight years and changes in the political landscape will not find its expression in the Constitution.

iii. Parliament cannot ratify or validate that which is illegal in the first place. Any Act purporting to legalise an otherwise illegal action would not stand the Court’s test (i.e. it will be difficult to reconcile Parliament’s power to provide indemnity under Article 46 with the general principles laid down by the Court in the judgment).

iv. A conflict may occur between the decision of a referendum and decision of the Court. To put the matter in perspective, say Parliament wishes to bring changes to the Preamble or any provisions of Articles 8, 48, 56 or 142. A referendum is required for that but amendment would be carried out by way of passing an Act. If the changes are drastic in nature, the Supreme Court may find that Act to be in violation of the basic structure of the Constitution even though a referendum has approved it.

v. A subsequent Parliament may attempt to overrule the decision of the Court in the Fifth Amendment judgment. Parliament is authorised to do so by legislation or Constitution amendments.

vi. Martial law has become totally unjustifiable. If there is ever an unfortunate time in the future when martial law is proclaimed, the Constitution is most likely to be abrogated.

In Bangladesh, among the three pillars of the State, undoubtedly Parliament has become the most weakest, largely because it had acted as rubber stamp for the people in power- either military rulers or elected governments. Parliament, as understood in this country, is not the Parliament understood by the Civilised world. As long as it remains in its present sorrowful state, nothing good can be expected from what we think in our country as Parliamentary Democracy. As Edward Gibbon had rightly said: “The principles of a free Constitution are irrevocably lost, when the legislative power is nominated by the executive”.

[1] Speech before the Chamber of Commerce, Elmira, New York (3 May 1907); published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139

[2] Khondokar Delwar Hossain, Secretary B.N.P and others Vs Bangladesh Italian Marble Works Ltd. and others ADC 2010 Vol. VI(B) p.1 and Bangladesh Italian Marble Works Ltd. and others Vs Bangladesh and others, 14 BLT (Special Issue) 2006

[3] Anwar Hossain Chowdhury and others Vs Bangladesh, 41 DLR (AD) (1989)

[4] Article 55(2)

[5] Article 65(1)

[6] The United States Constitution, Article III, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court…”

[7] 5 U.S. (1 Cranch) 137, 2L.Ed. 60 (1803)

[8] See also Fazlul Qader Chowdhury Vs Shah Nawaz, 18 DLR (AD) 62 and Kudrat –E-Elahi Panir Vs Bangladesh, 44 DLR (AD) 319

[9] Supreme Court Act, 1981

[10] Halsbury's Laws of England, ADMINISTRATIVE LAW (VOLUME 1(1) (2001 REISSUE)) at para. 123,160

[11] See British Railways Board v Pickin [1974] AC 765, [1974] 1 All ER 609, HL ,the House of Lords applied these principles in striking out paragraphs of a pleading that called them in question. See also Edinburgh and Dalkeith Rly Co v Wauchope (1842) 8 Cl & Fin 710 at 723, HL, Lord Campbell declared, obiter, that all that a court of justice can do is look to the Parliament roll, and that, once a bill has passed both Houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both Houses. Lee v Bude and Torrington Junction Rly Co (1871) LR 6 CP 576 at 582, Willes J said that if an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it. See also Waterford, Wexford, Wicklow and Dublin Rly Co v Logan (1850) 14 QB 672; Earl of Shrewsbury v Scott (1859) 6 CBNS 1 at 160; affd at 221, Ex Ch; Labrador Co v R [1893] AC 104 at 123, PC; Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 at 322, [1941] 2 All ER 93 at 97, PC.

[12] “The High Court Division may provide for relief based on circumstances”- Bangladesh Vs Ahmed Nazir, 27 DLR (AD) 41

[13] See Article 102(5) and Article 152.

[14] Keshavan Madhava Menon V Bombay (1951) S.C.R. 228

[15] Gujarat V Shri Ambica Mills (1974) 3 S.C.R 760

[16] See Bhikaji Narain Dhakras V MP (1955) 2 S.C.R 589; for a detail discussion, see H.M. Seervai, Constitutional Law o India, Vol. 1,4^th Ed.,

[17] Discussed in M.P.V. Sundararamier Vs A.P (1958) S.C.R 1422 citing Willoughby , Constitution of the United States, Vol. 1, p. 11; Cooley, Constitutional Law at p.201 and Wilkerson V Rahrer (1890) 140 U.S. 545, 35 L. ed. 572.

[18] Oxford Dictionary of Law, 6^th Edition and Black’s Law Dictionary, 8^th Edition.

[19] See also Abul A’la Maudoodi Vs Govt. of West Pakistan, 17 DLR (SC) 1965 at 209.

[20] The Honourable Court cited mainly seven reasons, see para 16 at page 241.

[21] See Article 368 of the Constitution of India and Minerva Mills Ltd Vs Union of India (AIR 1980 SC 1789)

[22] AIR 1973 SC 1461

[23] Minerva Mills Ltd Vs Union of India, AIR 1980 SC 1789

[24] 41 DLR (AD) 165

[25] Phang Chin Hock Vs The Public Prosecutor [1980] 1 MLJ 70, in the words of Lord President: “…it is enough for us merely to say that Parliament may amend the Constitution in any way they think fit, provided they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself”

[26] Teo Soh Lung v. Ministry for Home Affairs [1989] 1 S.L.R.(R) 461

[27] Bangladesh Italian Marble Works Ltd. Vs Government of Bangladesh and others, 2006(Special Issue) BLT (HCD) 1 at page 242

[28] Article 142 (IA)

[29] Article 7.

[30]Asif Nazrul, Confusion and Controversy over Reinstitution of the "1972" Constitution, Forum Volume 3 Issue 11,November 2010.See also Abdul Mannan, “Reprinting the 1972 Constitution!”, The Financial Express, October 21, 2010.

[31] See, ibid for analysis of some of the related issues.

[Note: Work in progress, published without foot notes and references in The Financial Express, 13th December 2010 ]

BDR Trial Reference Decision Sent to The President

2009-09-13T17:35:00.003+07:00

The Supreme Court of Bangladesh has sent its decision to the President on the reference sent to it under Article 106 of the Constitution. The Reference sought the apex court's opinion whether BDR personnel could be tried under the Army Act, 1952. 10 amici curie were appointed. There were divergence of opinion and the court decided that it was not possible for the trial to take place under the Army Act. In here, I had argued that all options were open to the Government. But with this decision, it is almost now certain that the Army Act route is unavailable.

I must agree with Mr. Rokanuddin Mahmud's point on the maintainability of this reference. In my opinion, the questions stated in the reference and in fact the whole subject matter of it is not appropriate for reference to the Supreme Court under Article 106 of the Constitution. This is a highly contentious issue and the questions sent ought to be answered in appeal not in reference. Furthermore, it is inevitable that these questions would come up in appeal and then there would be a conflict of decisions.

Even if the Supreme Court had taken the decision that the Army Act may apply, it wouldn't have been prudent to try such serious offences in Court Martial. Courts Martial are not proper forums for trying such grave offence like murder. Serious offences are always tried in Civil Courts since the accused person's life and liberty are at stake. On the other hand it is also true that the carnage at the BDR on 22nd February is an extra ordinary event and there should be a speedy trial. After the decision of the Supreme Court, the Government now may set up special tribunals under the general criminal law which will exclusively try the BDR accused. In this case the trial would be transparent as well as expeditious.
(Photo: courtesy www.thedailystar.net)

Supreme Court Company Rules Published

2009-07-22T13:06:00.002+07:00

Supreme Court Company Rules have been published in the official gazette.

Three Bills hava been passed

2009-04-02T02:34:00.000+06:00

As far as I know three Ordinances have been ratified/passed. The Right to Information Act, Dhaka Power Distribution Company Act and Bangladesh Biman Act (the titles may be wrong because they haven't been published yet).

Bangladesh Rifles Mutiny Trial Options

2009-04-02T02:10:00.003+06:00

A very tragic event took place on the 24th and 25th of February, 2009 at the Bangladesh Rifles (BDR) headquarters in Dhaka resulting in the loss of lives of scores of army officers, their family members, some Bangladesh Rifles personnel and other innocent people. Such an unfortunate event has shocked the whole country and understandably every one has been pressing for justice and a speedy trial of the culprits. Every criminal should be punished according to law and the culprits of the BDR conspiracy should not be any different. The aim of any criminal justice system is to deliver justice- effectively,transparently, within the due process of law and without delay. Trial of the BDR mutineers and their accomplices should not be perceived as an instrument of revenge and at the end it should be seen that justice was done.

The occurrence at BDR headquarters is an unusual one and now the question has come up as to how to deal with it. Keeping in mind of the severity and brutality of the acts committed, a speedy trial and exemplary punishment is in order. There are more than one way of doing it and all of the routes have their pros and cons, detail discussion of which would require a more elaborate essay. I hope the following discussion would help to alleviate some of the confusions caused regarding the trial of the BDR mutineers.

Retrospective effect of Criminal Law:
It is a fundamental tenant of the criminal justice system that no one may be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. In other way, a person should not be subjected to the process of criminal law by retrospective operation. This universal principle is stated in Article 35(1) of our Constitution as a fundamental right.

“Article 35. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.”

Generally, all laws are prospective, that is they affect any event after their promulgation. But some times they may be made retrospective. This runs the risk of unjustly prejudicing the offender specially in criminal law. That is why we have the above universal principle incorporated in our Constitution. However, the constitution has an exception to this above provision. Article 45 states:

“Article 45. Nothing in this Part shall apply to any provision of a disciplinary law relating to members of a disciplined force, being a provision limited to the purpose of ensuring the proper discharge of their duties or the maintenance of discipline in that force.”

The protection against retrospective operation of criminal law as such will not be applicable for members of the three armed forces and police (Article 152 of the Constitution interprets what is a disciplined force) and BDR ( Section 4(3) of The Bangladesh Rifles Order, 1972) and their respective laws. In international law, such exception is commonly granted against crimes against humanity and war crimes (Such exemption for war crimes is provided in our Constitution as well, Article 47(3) ). The rationale behind such exception is that the disciplinary forces are special bodies whose works relate to matters of national security and a higher standard of behaviour and discipline is expected from them. Amendment of the Constitution is not needed.

Military and Civil offences:
Military or services offences in general are distinct offences applicable to military forces. Civil offences are general offences applicable to all persons e.g. penal code. Example of military offences are mutiny , insubordination , desertion etc. Chapter V of the Army Act, 1952 has a list of detailed offences specially punishable under that Act by court martial. The BDR order also lists a number of special offences including mutiny that are triable under the BDR order by a special court. However, unlike the Army Act, the BDR order has no provision for trial of civil offences under special court.

Trial under the Bangladesh Rifles Order, 1972:
Bangladesh Rifles personnel operate under the Bangladesh Rifles Order, 1972. As such they are liable for special offences mentioned therein. The order is inadequate for proper operation and maintenance of a force like the BDR. For example, the maximum punishment for such a high offence as mutiny is only seven years which is quite deficient. Although the mutineers should have been tried by this order, because of its deficiencies , this order as it stands at the present would be inadequate to try the culprits for services offences. As per Order 16A, the Director-General of DG may be invested with the power of a First class magistrate by the Government to investigate and try Penal Code offences committed by one subordinate officer against another subordinate officer. But scope of this Order is limited too and offences against superior officers are excluded.

The BDR order does not envisage trial of civil offences under the special court. Such trial is left with the general criminal courts. Unless retrospective law is enacted to remedy the inadequacies of the BDR order, trial of the mutineers under this order will mean convicts can only be sentenced to maximum seven years imprisonment for service offences. For civil offences like murder, general criminal trial will have to take place separately.

Trial under the Army Act , 1952:
The Army Act, 1952 is a more comprehensive piece of legislation than the BDR order. Section 2 lays out the classes of persons subjected to this Act. BDR jawans are not included. The government by notification can have this Act apply to other forces under the government (Section 5). This notification would be required to have retrospective effect too. In such a case, full spectrum of service offences triable under court-martial would be applicable to try the BDR mutineers. Civil offences like murder and rape can also be tried under the Army Act (Section 59). In that case it would be possible to try both military and civil offences before the same forum. For civilians who are charged with seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, they can be tried under court-martial. For other offences, they would have to be tried under the general law.

Trial under general criminal court:
Needless to say, civil offences can be tried before the general criminal court. In that case Article 45 exemption is not available (not required too). Main consideration would be the delay in trial. Superior court's intervention also may be anticipated. The case can be transferred to a Speedy Trial Tribunal, in which case the trial would be much faster. If a competent prosecution team guides the trial process from its inception, including the investigation stage, then it is less likely that the Superior court would need to interfere. The trial would be in public and this means it will be more transparent. On the other hand sensitive information would come into the public domain. Furthermore, after conviction, the case is likely to go to the High Court Division and then to the Appellate Division of the Supreme Court and considerable time consumption there cannot be ruled out.

The nation demands justice for the victims of the BDR tragedy. The perpetrators must be punished. The trial process should be just, transparent, within the due process of law and expeditious. There are more than one way of doing it and it will be up to the government to pick one that will be fair to all concerned.
(Photo Courtesy www.nowpublic.com)

Ordinances Placed Before Parliament

2009-02-09T00:04:00.002+06:00

The new government has placed 122 ordinances before the parliament. Unless passed within 30 days of the first parliamentary session, those ordinances promulgated by the President during the caretaker government's two year tenure would become automatically ineffective. Some of the ordinances would be placed as bills and would be passed in the usual way. Some of the ordinances would be ratified as they stand now. The third group of ordinances will be left to become ineffective after 30 days.

The government is now considering ways to validate the immediate past care taker government itself since they have been in office for around two years whereas they were suppose to stay for three months. Although a High Court Division bench has validated holding of the general election after a long delay, it is not enough however to regularize the Caretaker government itself. The media reports that Parliament is now considering amending the Constitution to validate the Caretaker government. In my opninoin, this should have been done by the Appellate Division of the Supreme Court of Bangladesh under the court's advisory jurisdiction under Article 106 as soon as the three month tenure of the government was over. The problem faced fits perfectly to the criteria stated in Article 106. It is still possible and that would have been the best way of doing it.

Bangladesh had ample experience with extra-judicial governments during its 38 years existence and therefore there will be no shortage of past precedence to look into to solve this problem. However, the uniquness of the current situation makes it a bit difficult to reach the best solution specially because the implications will have far reaching political and legal consequences.

Although the government wants to validate the care taker government's extended existence and its actions, it does not want to encourage future repeatation of a similar kind.

Finally, Laws of Bangladesh go Online!

2008-10-25T22:52:00.006+06:00

The Chief Adviser today inaugurated the laws of Bangladesh website (www.bdlaws.gov.bd) . The site show cases all Acts of Parliament, Ordinances and President's Orders promulgated and updated upto October 20, 2008. It also has various search options and index, alphabetical and chronological browsing of the whole Bangladesh Code. This site is an absolute must for the modern law practioner and anyone interested in the Bangladeshi law. A part of the site is also available on CD-ROM. The Government should also publish authentic English text for all laws published in Bengali. My personal opinion is that the main law should be published in English and Bengali simultaneously.

Emergency Power Rules Relaxed

2008-06-22T13:54:00.002+06:00

The Care Taker Government has relaxed the emergency power rules for the local government elections. As per the new provisions, campaign activities would be allowed for 21 days prior to the election. The Government is yet to publish the details.

High Court Division judgement clarifies membership confusion

2008-06-15T14:02:00.002+06:00

The Company Court of the High Court Division in a major case on 11 June declared that the omnibus account holders at the CDBL are not 'members' of the companies in which they buy shares in. Other Beneficial Owners are 'members' of the companies and as such are entitled to all the rights and privileges enjoyed by a general member.

Former Bangladeshi PM released from jail

2008-06-15T13:54:00.002+06:00

Former Bangladeshi PM Sheikh Hasina has been released from jail. She was under arrest for over 11 months for corruption charges. Following successful negotiations with the government, she was released on the condition that her party will participate in the ongoing national political dialog and eventually in the next general election scheduled later this year. It is widely expected that the same maneuver would be followed regarding another ex PM Khaleda Zia. However, she refuses to leave the country but wants her two sons to go.

Bangladesh National ICT Policy Under Review

2008-06-10T15:14:00.002+06:00

This is what I sent to Bangladesh Computer Council:

A detailed and comprehensive plan is required. Policies are too vague and superficial for the country at the moment. Therefore a time framed and sector-wise plan should quickly follow the policy.
The government should only provide support and backup. It should not get too involved in all of the implementations and should allow private sector to flourish. The Government should provide a liberal regulatory framework.
Promotion of practical and vocational training in ICT is required which should be geared at securing foreign placement for Bangladeshi trained personnel. This is a potential area for future manpower export. Therefore professional certification courses should be encouraged.
The focus of the Government initiative should be to strengthen the private sector and promote FDI in ICT industry.
Strict enforcement of Intellectual Property and relevant laws are a must to have success in developing the ICT industry.
Side by side, confidence building is required among the foreign investors regarding updated Computer law, speedy proceedings in Court and efficient enforcement.
New law is needed to protect the individual from the high tech surveillance activities of the law enforcement agencies.
Staff of the Judiciary should be trained in technology usage. Proper implementation of ICT could largely reduce the plight of the litigants and corruption in the Judiciary.

Bangladesh Bank says all banks must have directors from account holders

2008-05-15T01:23:00.003+06:00

Bangladesh Bank, the banking regulator, has informed all banks in Bangladesh that they must have a director from their ordinary account holders. The Banker's Association of Bangladesh (BAB) and business community have sharply criticized this move by saying that if done so, this would be the first in the world. The banks already have independent directors as per Bangladesh Bank's direction.

Appellate Division allows old offences to be brought under Emergency Rules

2008-05-15T01:11:00.004+06:00

The Appellate Division of the Supreme Court has granted leave to appeal in Sheikh Hasina Wazed V The State. The government lodged this appeal after the High Court ruled that prior offences cannot be brought under the Emergency Rules. This effectively meant that the tough grip over the cases filed against the former politicians would have loosened up, with the possibility of them being released on bail. The Appellate Division's decision had stopped that. By granting leave to appeal, the Appellate Division has automatically stayed the operation of the High Court Division's Judgment. The decision was unanimous.

Appellate Division rejects bail for convicts under Emergency Law

2008-03-12T00:10:00.002+06:00

The Appellate Division of the Supreme Court of Bangladesh has ruled that the convicts in the corruption cases that have been filed during the emergency provisions are not eligible for bail. The apex court delivered this judgment while hearing two leave to appeal petitions.

Mandatory Listing Provisions for Bangladeshi Companies

2008-03-11T23:41:00.002+06:00

As per new Securities and Exchange Commission rules, all private limited companies that have paid up capital over Taka.40 crore will have to be converted to public limited companies and must be listed on the stock exchange. The business community has sharply reacted to this provision.

Sheikh Hasina's case stayed pending appeal

2008-02-27T14:34:00.002+06:00

The corruption case against former Bangladeshi PM Sheikh Hasina has been stayed by the Appellate Division of the Supreme Court of Bangladesh. The apex court has stayed both the High Court division judgment which had concluded that the case cannot continue under Emergency Power Rules and also the proceedings of the trial court till March 16th. The decision came after a leave to appeal hearing. Now the government will have to file a regular appeal as the leave was granted.

The outcome of this case is likely to determine the fate of most of the corruption and extortion cases filed against the politicians after the emergency power rules were promulgated. The High Court Division found that the government could not bring past offences under present rule as it is not allowed by the Constitution. If this decision is upheld by the Appellate Division, it would mean that all of the cases that have been filed after the emergency but which occurred before the EPR was promulgated would have to go through the regular trial route. One implication of such result is that the accused would be eligible for bail.

New case filed against Khaleda Zia and top ministers

2008-02-27T14:20:00.001+06:00

A new case has been lodged against the former Bangaldeshi PM Khaleda Zia and other top ministers for alleged mis appropriation of money in the controversial Barapukuria mine project. The former PM is already in jail since last year.

Truth Commission On the Way?

2007-12-05T00:06:00.001+06:00

It is widely speculated in the media that the Government may setup a Truth Commission soon to investigate past corruptions in the country. Although most such Commissions usually deal with human rights issues, the National Accountability Bureau of Pakistan is another permanent Commission entrusted with corruption investigations. If established in Bangladesh, such a body will be a first in the whole world. The Law Adviser has commented that prosecuting thousands of corrupt ex-government employees or businessmen is unpractical given the time this Government has. Instead, probably the idea now is that people will confess in front of the Commission,pay a fine
and then will be absolved of their liabilities. This is how more or less most Commission's operate. Given the fact that such a Commission had never been formed, it would be extremely difficult to ascertain its true nature and result of its actions.

Trying War Criminals

2007-11-07T12:48:00.000+06:00

A recent comment by the Secretary-General of Jamaat-E-Islami that there are no war criminals in Bangladesh sparked off again the old debate of trying the war criminals and collaborators of the Independence War.

After the war a general amnesty was granted but it was not applicable to persons against whom there were specific criminal allegations. But subsequently no one was tried. The International Crimes (Tribunals) Act 1973 remains in force and empowers the government to set up a tribunal and investigation commission to investigate and try war crimes. Under the Bangladeshi criminal law there is no limitation period and as such individuals can still file complaints with the police.

However, ever since Independence this issue had remained mostly political. The country has seen both Awami League and BNP in government multiple times during the last 37 years, both of which claim themselves as pro-liberation parties. None of them had taken any attempt to set up a tribunal or investigation commission. On the contrary, it had been alleged that they have more or less profited by this issue one way or the other.

All though it appears that there is no legal bar in trying war criminals now, after 37 years, practical and political implications would probably again refrain the government from taking any steps.

Seperation of the Judiciary - What it means for the people

2007-11-03T22:47:00.000+06:00

From 1st November, the much anticipated separation of the lower judiciary from the executive took place amidst a festive mode. Since the independence of the Indian sub-continent, the total separation of the judiciary remained an important but unresolved issue. But how does it effect the ordinary citizen? How would they benefit from it?

Before 1st November 2007, appointment , posting, promotion etc of the magistrates were carried out by the Government. They used to be government employees in every sense of it. Most of the magistrates had dual role as an executive officer of the government and a judicial officer. Not only it hindered both kinds of their work, it used to put them under immense controversy. Allegation of government influence into judicial matters were widespread. In 1999, the Supreme Court in it's historic judgment in the Masder Hossain Case delivered a 12 point directive to separate the lower judiciary from the executive branch. After 8 long years and three governments, the effort finally came to fruition.

Whereas before the magistrates were appointed through the Public Service Commission (PSC), now the judicial magistrates will be appointed through the newly established Judicial Service Commission. Four separate rules have been promulgated to establish the new framework. The Code of Criminal Procedure has been amended to reflect the new changes. There are now two kinds of magistrates - executive and judicial. The judicial magistrates will be under the control of the Supreme Court and the Ministry of Law will act as a secretariat. No doubt a separate secretariat for the new framework would have ensured better administration and remove remaining doubts about executive involvement .

What it means now is that the judicial magistrates are now full time judges. They are no longer lay magistrates. They would be trying cases full time. They will no longer have to worry about upsetting the government, the ruling party or sitting MPs. Nor would they be required to leave their courts to go somewhere else to carry out executive orders. It is expected that disposal of trials will be speed up by the new system once sufficient number of judicial magistrates are appointed.

The executive magistrates will no longer preside over trials but will still have some judicial and quasi-judicial powers required to do their job, specially those required for maintaining peace and order.

There is no doubt that this is a momentous step for the whole justice system. However, utmost diligence and caution must be exercised to ensure that the new system delivers in accordance with the hopes of the people. The judiciary must feel independent and separate from the executive branch in all respect and act accordingly. Only then the hope for a truly independent judiciary will be fulfilled.

Separation of the Judiciary

2007-10-27T11:13:00.000+06:00

The historic event of separation of the judiciary from the executive is to take place on November 1st. The Chief Justice of Bangladesh will attend the ceremony at the District Court premises in old Dhaka. After the judgment in Mazder Hossain case, three successive governments and eight years, finally the judicial magistrates will start their work from November. Executive magistrates will still have some of their quasi- judicial powers needed for proper administration, but they will not hear cases.

Former Bangladesh PM Khaleda Zia's Bail Stayed

2007-10-04T21:00:00.000+06:00

The Appellate Division of the Supreme Court of Bangladesh has stayed the order of the High Court Division which earlier released Khaleda Zia on bail. She was arrested in a corruption case. Her lawyers challenged the Government's move to bring her case under emergency provisions. In a series of similar cases, the Appellate Division stayed the High Court's orders. It was argued that the emergency provisions only allow cases to be brought under emergency provisions only when the offence was committed during the emergency period. Although the emergency provisions appears to supports this notion, the Appellate Division is clearly not ready to release any one arrested under emergency law. The emergency rules bar any one arrested under it from getting released under bail.

Government Attorney Services

2007-09-30T00:09:00.000+06:00

The government has decided to totally revamp the AG's office. The service will be made permanent and Deputy and Assistant AG's would be recruited through the Public Service Commission like all other public servants. The new changes would be carried out from the Supreme Court to the District level. The AG's office has been the center of controversy during the recent years because of its too close association with the immediate past government. The new caretaker government had totally reshuffled the office sacking most of the lawyers.

New Constitional Committee On The Way

2007-09-29T23:49:00.000+06:00

The caretaker government has decided to form a Constitutional Committee headed by the Chief Justice. A draft ordinance has already been approved. The Committee would be responsible for recommending candidates for appointment to the Constitutional posts which includes Judges, the Attorney-General, Auditor and Comptroller General, Election Commissioner etc. Normally, as per the Constitution the President appoints by consultation with the Prime Minister or Chief Adviser. The ordinance apparently puts up a new mechanism. How it conforms with the Constitution is unclear. Although most practitioners and civil society members have hailed the decision, they are concerned that the inclusion of the Chief Justice as the Chairman could make him controversial.

Former PM and son arrested

2007-09-06T17:16:00.000+06:00

Immediate past PM Khaleda Zia and her youngest son Arafat has been arrested. Begum Zia was sent to jail and Arafat has been taken on remand for 4 days. Both of them are arrested on extortion cases. Khaleda Zia's eldest son Tarique had been in jail for months following corruption charges.

Increase in Company Registration Fees

2007-09-03T00:26:00.000+06:00

Registration and stamp fees for incorporating companies has been significantly increased. The Registrar of Joint Stock Companies is yet to update its website( www.roc.gov.bd). For example, the stamp duty is now Taka: 1200/= instead of Taka: 120/= and registration fee for company with authorized capital of Taka: 1,00,00,000/= is Taka: 17,025/=.

Amendments to the Bank Companies Act, 1991

2007-08-29T23:02:00.000+06:00

The Government has decided to bring amendments to the Bank Companies Act 1991 by the Bank Companies (Amendment) Ordinance 2007. Major tightening measures are expected. Highlights of the new ordinance are:

Changed definition of default loans
Maximum number of Board of Directors is 13 and their tenures are two three-year terms;
A family having above 5% shares would be entitled to have not more than two directors on the board and a family having less than 5% shares would be able to hold one post of director;
Total amount of capital increased from Taka. 1 billion to Taka. 2 billion;
Duration of overdue period of loans reduced from six months to three months;

Khaleda Zia gets away with fines

2007-08-29T22:36:00.000+06:00

Khaleda Zia has been fined Taka. 5,50,000/= for irregularities in filing papers with the Registrar of Joint Stock Companies in the "Dinkal" case. The company was also declared defunct by the court.

Appellate Division sends Sheikh Hasina's case back to the High Court Division

2007-08-29T22:27:00.000+06:00

The Appellate Division of the Supreme Court of Bangladesh has sent Sheikh Hasina's case back to the High Court Division and stayed all interlocutory reliefs granted by the High Court Division, including bail. It means that now there would be a full hearing on the writ petition in the High Court. Additionally, she was instructed to submit her wealth statement within one week to the Anti Corruption Commission.

Supreme Court Orders For Ex PM

2007-07-31T00:32:00.000+06:00

In a writ petition filed by Sheikh Hasina against bringing the extortion case against her under emergency proclamation, a division bench of the High Court Division of the Supreme Court today issued a rule against the government, stayed the order bringing the case under emergency proclamation and granted ad interim bail to the former prime minister.

She was arrested in an extortion case. Later, the case was brought within the ambit of the emergency provisions, which prohibits ad interim bail in cases tried under it. She is unlikely to be released though, as she is also shown arrested in another case. The government has hinted that they would appeal and in that case there is a good chance that the Appellate Division will stay the High Court Division order.

Under the reformation initiative by the current government, it is widely believed that both the former PM's would be excluded from future politics.

[The Appellate Division stayed order of the High Court till the hearing of the matter]

Ex-PM Jailed

2007-07-17T11:34:00.000+06:00

Ex Prime Minister and immediate past leader of the opposition Sheikh Hasina was jailed yesterday in an extortion case, after her prayer for bail was refused in the CMM Court. Her cousin Sheikh Selim is in jail in the same case.

Undoubtedly, this puts the caretaker government under tremendous pressure. Specially as the current anti corruption drive was aimed primarily against the other party BNP and not against Awami League which Hasina heads.

Most leaders of both the parties believed that with Khaleda and Hasina in the scene, it would be impossible to carry out party reforms since one of the main aims of the reform initiative is to remove their dictatorial influence over their party.

Attorney General's Office Reshuffled

2007-06-22T11:22:00.000+06:00

After dragging on the matter for months, finally the AG's office has been totally revamped. Almost 90% of the law officers were replaced. The Supreme Court is on vacation and the reaction to the changes are not known.

Mohiudding AKM Ahmed v Attorney General

2007-06-19T01:20:00.000+06:00

One of the convicts in the coup and assassination of the founding President of Bangladesh Sheikh Mujibur Rahman has been deported from United States to Bangaldesh. This is the fifth case of bringing in the convicts of the case. After arrival, Chief Metropolitan Magistrate sent him to jail.

Lt Colonel (retd) Mohiuddin was deported after his appeal against deportation order was refused by the Ninth Circuit Court of Appeals. While considering the appeal, the court found that Ahmed is ineligible for asylum and withholding of removal for two reasons, because he engaged in terrorist activity and because he assisted or otherwise participated in the persecution of others on account of their political opinion.Furthermore, the court also found that he failed to prove by a preponderance of the evidence that his in absentia murder trial and conviction in Bangladesh was fundamentally unfair and thus deprived him of due process of law. His application for asylum in Canada was also turned down.

Former PM Barred from Leaving the Country

2007-06-15T01:34:00.001+06:00

A Dhaka court yesterday barred the former Prime Minister and Awami League President Sheikh Hasina from leaving the country. This comes as no surprise since two extortion cases have been filed against her by two businessmen who are known to have been closely associated with her party. The party secretary Abdul Jalil has been under custody for some time now and according to several newspapers, has confessed to many of the wrongdoings of his party which ultimately can be traced back to Sheikh Hasina.

During the beginning of the anti-corruption drive, it was widely speculated that two chiefs of the biggest parties would be forced to leave the country, as happened in Pakistan when General Musharraf took over. An attempt was taken to stop Sheikh Hasina from returning to Bangladesh couple of months back but she was eventually allowed to come back from USA and UK. It is now believed by the people in general that both the party chiefs would face trial or even be forced from within their respective parties to retire from politics .

Major Environmental and Related Laws of Bangladesh - Part 1

2007-06-12T23:09:00.000+06:00

Although Laws relating to environment can be traced to as early as the Penal Code of 1860, it is only during the last decade or so that we see major environment law reforms taking place in Bangladesh. With new development in the energy sector and rapid urbanization and industrialization, it is surely a pragmatic step to enact reforms at this point of time if not earlier. Needless to say, further development in this field is required before the Environmental Laws in Bangladesh is in a position to meet the need of the sector.

Roughly, the Environmental Laws can be categorized as follows:

A. Pollution

B. Occupational Hazard and Safety

C. Dangerous substances and Public protection

D. Displacement , Relief and Rehabilitation

E. Management of Land

F. Agricultural Resources Management

G. Water Resource Management

H. Fishery

I. Forestry

J. Wildlife

K. Energy and Mineral resources

L. Rural and Urban planning

M. Transportation and Safety

A. Pollution

Various laws are in force to address the pollution of air, water and soil. Earliest legislation dealing with pollution of the environment is the Penal Code of 1860. It contains various provisions relating to the offences affecting the public health, safety and convenience and offences affecting human body and life through pollution in the environment. The Code of Criminal Procedure, 1989 also has provisions against occurrence of public nuisance through environmental hazard. The Smoke Nuisance Act, 1905 addresses the issue of abatement of nuisances arising from the smoke of furnaces or fire-places in certain areas in Bangladesh. Bangladesh Environmental Conservation Act, 1995 (ECA) is undoubtedly the flagship legislation in the environment sector. It deals exhaustively with the conservation of environment, improvement of environmental standards and control and mitigation of environmental pollution. It provides the de facto definition of ‘pollution’. Coupled with the Environmental Conservation Rules, 1997, the ECA has set a new standard for conservation of the environment. Conservation of Playing field, Open space, Garden and Natural Water Body Act, 2000 (enacted in Bengali) also contains provisions for environmental conservation. By the Environment Court Act 2000, a special court was established which now hears matters related to environment. It is to be noted that although the number of legislation dealing with environmental issues directly or indirectly is quite large, the case law is equally few and as such there is a general lack of direction.

Money Whitening Scope

2007-06-12T22:42:00.002+06:00

The National Board of Revenue has recently declared that taxpayers can 'whiten' their money within 31st July,2007 by paying 5% additional tax. This means that taxpayers who had undeclared assets can declare them and no questions would be asked. This facility is available for the last five tax years. Of course, people already under investigation for tax evasion and corruption would not be able to avail the opportunity. The government has recently announced the budget and hopes to collect a large chunk of the money from tax revenue. It is hoped that the new opportunity would encourage the genuine tax payers to clean their money.

No bail for the big wigs

2007-06-12T19:57:00.000+06:00

It seems that the big wigs caught by the army launched anti-corruption move have no other option but to face their trial while in custody. After the High Court Division of the Supreme Court ordered that some of them should be released on bail, the Chief Justice of Bangladesh took away bail power from those benches. Also, those orders were later stayed by the Appellate Division.
Mayor of Rajshahi was arrested during the drive. He got bail from the sub-ordinate court in one case only to be arrested by the security forces again on another case. The mayor of Sylhet faced the same fate as well. At the moment, once arrested under the emergency provisions, there doesn't seem to be any way to get out, not even through court.

Upcoming Coal Policy in Bangladesh

2007-06-11T16:48:00.000+06:00

Energy adviser to the interim government Tapan Chowdhury confirmed yesterday that the new national coal policy would be finalized within July. This comes as the pressure increases from foreign investors and experts inside Bangladesh to further energy sector development, which has been stagnant for the last five years.

USA, UK,Chinese and Indian investors are keen to invest in the energy sector. However, absence of a national coal policy meant that each time an investment opportunity arose, different social and political groups would allege non-transparent and shady deals between the investors and the government. It is difficult to see how Bangladesh aims to replace it's current dependency on natural gas with coal without a concrete policy.

Last year, lives were lost when organized protesters clashed with security forces in the Phulbari Coal Mine area. The protesters sought termination of the agreement between the government and Asia Energy. They also wanted a ban on open pit mining method. Both the then ruling and opposition parties blamed each other for the incident. What ever the case may be, it does not help attract foreign investors.

There is a sharp division between experts regarding using open pit mining and underground mining methods. The energy adviser is yet to confirm on that. It appears from the drafts that the government is more inclined to adopt open pit mining to maximize output.

In any case, this policy will determine the success or failure of the energy sector for decades to come.

Changes in the Attorny General's Office

2007-05-15T14:26:00.000+06:00

Major changes in the Attorney General's office were expected when the new interim government came to power. But at the beginning, the government was happy to just appoint a new Attorney General and Additional AG. But further changes were on the way. It is rumored that a new list of Deputy Attorney Generals and Assistant Attorney Generals is already pending for approval in Ministry of Law and that majority of the law officers will have to go.

The former opposition parties were quite vocal in opposing the appointment of law officers during the last government's term, complaining that they were appointed on the basis of political affiliation. Later, allegation of incompetence also surfaced.

Apparently, the politicization of the AG's office is not a controversy in Bangladesh alone in recent times. Lord Goldsmith has faced immense criticism because of his actions as AG of United Kingdom, specially the endorsement of Iraq war and recent cash for honour scandal. David Pannick, QC writes in
February 27, 2007 issue of Times Online:

"The central questions, then, are whether the functions of the attorney-general could be transferred to a nonpolitical officeholder without undermining the influence of the attorney-general over ministerial colleagues and without removing accountability to Parliament."

He puts some suggestions which I mostly endorse. Although not all of them are applicable to Bangladesh, the fixed tenure and accountability before Parliament is certainly doable. At the end, a balance has to be struck and the burden of responsibility to see that the AG's office remains above political controversy is on the office itself.

Reconstitution of Benches

2007-05-15T12:55:00.000+06:00

For the last two weeks everyone in court was guessing whether the arrestees in the anti-corruption drive would be released on bail. The hearings were lengthy. The new emergency proclamations provide that arrestees cannot be freed on bail pending trial. However, one bench of the High Court Division interpreted that rule as being only applicable to the subordinate courts. At the end, it was apparent that in couple of weak cases, bail would be given. The City Mayor of Sylhet got bail. But the government tightened the net. It seems that the Chief Justice is providing full support to the Military backed interim government. He reconstituted two of the Benches who had jurisdiction to grant bail and only the mayor and the wife of a minister escaped the net.

UCP 600: The New Rules on Documentary Credit

2007-04-14T00:48:00.000+06:00

[This article appears in the March,2007 issue of Dhaka Law Reports]

The new rules for Uniform Customs and Practice for Documentary Credits will come into force on 1 July 2007. These rules are called the UCP 600. The previous version, UCP 500, had been operative since 1994. Historically, ICC does revision of UCP every 10 years to incorporate changes in international business practice. UCP 500 still contained discrepancies that seemed to hinder the smooth operation of documentary credit transactions. The Banking Commission in Paris in May 2003 established a Drafting group and a Consulting group to formulate UCP 600. After three years of rigorous review, UCP 600 was finalized, hoping to remove the discrepancies in the previous version. Coupled with the ICC’s Documentary Credit Dispute Resolution Expertise Rules (DOCDEX), there was much confusion amongst businesspersons and bankers regarding documentary credit transactions, resulting in 70% of the presentations not being honoured due to discrepancies. The objective of UCP 600 is therefore to reduce dispute rates, lower rates of inquiries regarding interpretations of certain articles and reduce lawsuits resulting from such confusion.

Whereas UCP 500 contained 49 Articles, UCP 600 now has 39 Articles that are clearer, more concise and more organized. Major amendments have been enacted in relation to various Articles of UCP 500 that used to induce the most number of inquiries. The major changes are best understood when comparison is made between the two versions, an outline is sketched below:

Application:

UCP 500 Article 1	UCP 600 Article 1
No formal status was given, only stating that they would apply to documentary credit. However, courts would generally find that they would apply when expressly stated or by implication.	These Articles are now ‘rules’. Once they are referred to in the credit documents, they are binding on all parties, unless excluded or modified by the credit document. Probably this would reinforce the legal status of the provisions.

Definitions:

UCP 500 Article 2	UCP 600 Article 2
Only the meaning of Credit was defined.	Article 2 introduces new definitions section. Particularly the meaning of ‘Honour’, ‘Negotiation’ and ‘Presentation’ has been defined among others. This was a prime area of uncertainty in the previous version.

Interpretation:

No corresponding Article in UCP500	UCP 600 Article 3
	By Article 3 there is now a new section on Interpretations. It clarifies certain procedural matters and interpretation of various commonly used yet misunderstood terms.

Examination of Documents:

UCP 500 Article 13(b) and 14 (d)	UCP 600 Article 14(b) and 16(d)
In UCP 500, the stipulated time was ‘reasonable time not exceeding seven days’. This created much confusion.	Under Article 14 (b) Five Banking days are now the maximum for determining whether a presentation complies. Banks will now have to settle the issue within this period.

Addresses of Applicant and Beneficiary

UCP 500 Article 37(in part)	UCP 600 Article 14(j)
Commercial invoices must appear on their face to be issued by the Beneficiary name din the Credit and must be made out in the name of the Applicant…	Under Article 14 (j), the address provision for documentary credits has been relaxed. Now it is sufficient if the beneficiary’s addresses in different documents are within the same country.

Holding Documents for Waiver of Discrepancies

UCP 500 Article 14 (d)	UCP 600 Article 16(c)
If the Issuing Bank and/or Confirming Bank or Nominated Bank decided to refuse the documents, it must give notice to that effect…	As per Article 16 (c), if a bank decides to refuse documents because of discrepancies, it can hold the documents pending further instructions from the presenter or until it receives a waiver from the applicant and agrees to accept it and give notice to that effect.

Authorization to Discount

UCP 500 Article 10(d)

UCP 600 Article 12(b)

By nominating another bank, or by allowing for negotiation by any bank, or by authorizing or requesting another bank to add its confirmation, the Issuing Bank authorizes such a bank to pay, accept draft(s), or negotiate as the case may be, against documents which appear on their face to be in compliance with the terms and conditions of the Credit and undertakes to reimburse such bank in accordance with the provisions of these Articles.

As per Article 12 (b), By nominating a bank to accept a draft or incur a deferred payment undertaking, an issuing bank authorizes that nominated bank to prepay or purchase a a draft accepted or a deferred payment undertaking incurred by that nominated bank.

Consistency Requirement

UCP 500 Article 21	UCP 600 Article 14(d)
There must not be inconsistencies between data content of one document with another.	Article 14 (d) states that data in the credit, other documents and international banking practice need not be identical but also must not conflict with each other.

Lost Documents

UCP 500 Article 16 (in part)	UCP 600 Article 35 (in part)
Banks assume no liability or responsibility for the consequences arising out of delay and/or loss in transit of any message(s), letter(s) or document(s), or for delay, mutilation or other error(s) arising in the transmission of any telecommunication.	Article 35 (in part) states that if a presentation is complying then if the documents are lost during transit between banks, the issuing or confirming bank must honour, negotiate or reimburse the credit. Admittedly, this is much more logical than the previous version.

Multimodal Transport Shipment

UCP 500 Article 26(a) (in part)	UCP 600 Article 19(a)
If the Credit called for a transport document covering at least two different modes of transport, then this section would apply.	Article 19 (in part) now gives different description of multimodal transport shipments. The credit need not call for a transport document to cover different modes of transport.

Bill of Lading

UCP 500 Article 23(a) (in part)	UCP 600 Article 20(a) (in part)
If a Credit calls for a bill of lading covering a port-to-port shipment, banks will, unless otherwise stipulated in the Credit, accept a document, however named, which…	Article 20(a) simplifies provision for Bill of Lading which includes port-to-port shipments.

Original Documents

UCP 500 Article 20 (b)	UCP 600 Article 17
Unless otherwise stipulated in the Credit, banks will accept as an original document, a document produced as a copy provided that it is marked as original and appears to be signed.	Under the new rule in Article 17, a document bearing an apparently original signature, mark stamp or label of the issuer would be accepted as original document.

Standard for examination of Documents

UCP 500 Article 13	UCP 600 Article 14
Referred to ‘reasonable care’ and ‘reasonable time’. There was much uncertainty interpreting these terms.	The examination of documents and sets out new standards. Needless to say that this area had been a major source of problem, specially between the beneficiary and the confirming/nominating bank. Attempts have been made to reduce the problems usually arising out of wrong interpretation.

Airway Bill

UCP 500 Article 27	UCP 600 Article 23
Date of dispatch to taken as the date of shipment.	If actual date of shipment not specified, date of issuance of the bill will be accepted as the date of shipment.

Nomination

Article 12 lays down important rules regarding nominating banks obligations and responsibilities covering honour, negotiation, prepayment and deferred payment. They were absent in the previous version, leaving the parties to speculation as to their meaning.

Availability, Expiry date and place for presentation

As per Article 6, a credit must indicate the bank with which it is available or whether it is available with any bank. It must also indicate whether it is available by sight payment, deferred payment, acceptance or negotiation.

Discrepant Documents

Article 16 now deals with the important issue of discrepant documents and is now much clearer and simplified. Attempts have been taken to reduce the subjective nature of the process. When a bank determines that a presentation does not comply, it may refuse to honour or negotiate.

Insurance Documents

Article 28 deals with insurance documents and detailed provisions relating to insurance is covered.

Transport Documents issued by Freight Forwarders

Article 30 in UCP 500 dealt with transport documents issued by freight forwarders and is no longer included in the new rules.

There is no doubt that UCP 600 has taken some serious steps to remove confusion and promote consistency in international business practice. The ICC has taken great care to ensure that experience gathered by bankers, importer, exporters and lawyers during the time of UCP 500 are put to good use in the new rules. With over 70% documents presented found to contain discrepancies, it is hoped that UCP 600 would be more successful than its predecessors in bringing in more uniformity in a field that is in dire need of it.

Adnan M L Karim , Barrister-at-Law

Evolution of Islamic Jurisprudence - Part 1

2007-04-13T15:15:00.000+06:00

The fountainhead of Islamic Jurisprudence is that sovereignty belongs to Allah alone and therefore the law comes from him alone. As such, there is no one except Allah who can legislate. As it is said in the Holy Quran:

“Those who do not rule in accordance with what is revealed by Allah are the disbelievers” (Sura Al-Maidah, v 44)

Thus the source of Islamic Law is the Quran and the Sunnah (Tradition) of the Prophet (PBH). The Sunnah is regarded as next to the Quran as the source because it is said in the Holy Quran about the Prophet (PBH):

“ He does not speak from his desires, Verily it is inspiration which has been revealed” (Sura An Najm, v 3,4)

In regular sense, Jurisprudence of secular law means the science of law, so to speak. In its capacity, it generally deals with the theories, principles, applications, rational and classifications of legal concepts. Islamic Jurisprudence, which is called 'Ilm-ul-usul' or 'Ilm-ul-Usul-Al-Fiqh', is some what different. In addition to the above , it deals with the basic two sources of the Islamic Law and the way through which additional branches of it is derived – mainly Ijma, Qiyas and Ijtehad.

At this point, it might be helpful to clarify the difference in Fiqh and Shaariah. Technically speaking, Fiqh refers to the science of deducing laws from the sources[1]. The laws so deduced are also sometimes considered to be within Fiqh.. Shaaria on the other hand means the whole of the substantive law.

Development of Islamic Jurisprudence took place in various stages during the last 1400 years. For a proper understanding of this development, it can be divided into five major stages – Foundation, Establishment, Growth, Spread, Consolidation and Stagnation.

Here, after considering the basics of Islamic Jurisprudence, the topics will be discussed according to these stages and both substantive law and historical development would be considered.

The Quran is not just a book of law, nor is it just a book of science. It is a book of information. Information that a man needs to achieve his goal, to be able to please Allah and subsequently to be admitted to Heaven. The Quran very clearly defines man's relation with Allah, his creator, his relation to another man and his relation to his society. It is the later two part that we will be dealing when we say that we are discussing the law of the Quran.

Terrorism and Human Rights: Where to draw the line?

2006-04-21T23:27:00.000+06:00

It would not be an exaggeration to say that the very definition of terrorism is broad and misunderstood generally. According to Oxford English Dictionary, terrorism means “the use of violent action in order to achieve political aims or to force a government to act”. Encyclopedia Britannica states it as “the systematic use of violence to create a general climate of fear in a population and thereby to bring about a particular political objective.” Needless to say, it covers a wide range of possibilities. Although the general term dates back from the Reign of Terror from the French Revolutions (1793-94), for time and time it has been associated with such names as Hitler, Mussolini, Stalin and others. The fact that ‘legitimate’ governments and individual groups both can be termed as terrorists shows the relativity of the term. Both parties at conflict often accuse each other for terrorism (Palestine-Israel) and often the terrorists become the sovereign (African National Congress). So where do we draw the line?

Perhaps it would be helpful to include the word ‘civilian’ or ‘public’ some where into the definition. Although some Acts of Parliament does so, they also included a number of other provisions which further blur the basic nature of terrorism. In my view, we might correctly conclude that any act of violence directed against innocent and unprotected civilians is an act of terrorism. Terrorism is not new, terrorists are not new but the context is new and requires new ways of handling the matter. With the change of time and place, the force behind the terrorists changes, their faces change but what remains the same is the ‘act’. Such levels of suicide bombing were never seen before, nor was society required to deal with ‘terrorists’ within its very heart. How deep can we operate on ourselves before we kill ourselves? It requires sensible and wise judgment.

The delicate balance between civil liberty and submission to law had always been a fine one and is even more complex when it relates to such sensitive issues like terrorism. The arm of the law is long but whether it should be made longer depends on the sole question- would it be able to solve the problem it purports to solve keeping harmony in the society? If the cure becomes a disease of its own, then perhaps alternatives should be sought.

The bombings in London probably have shown more than just lack of security and law in the United Kingdom. The bombers were British citizens, not foreign groups. This shows the amount of resentment and sense of isolation within the society. This doesn’t come from lack of proper legal measures. Nor is it possible to purge them by enforcing law alone. The measures proposed in the new anti-terrorism policies are most likely aimed to stop the effect, not cure the cause. Apparently, too much emphasis is put on the Law which should have been directed else where, on long term policy issues.

A person should be held as innocent until proven guilty. A suspect held under custody is still a ‘suspect’, not a convict. The possibility of a person being held for such a long period of time does not coincide with the basic principle of innocence. Further more, isn’t it true that the very nature of electronic evidence and high tech security measures mean that it should actually take less time to find substantial evidence to charge a person? A UK version of Guantanamo is beyond comprehension.

The government’s reason for the ninety day detention time is that in such cases the complexity of electronic and other evidence requires longer than the current permissible fourteen days. This essentially means that the government could retain a suspect for up to three months, while they search for evidence to charge him successfully in court. Indeed this contradicts some fundamental concepts of law and liberty in the United Kingdom. In the hand of the police, there is a good probability that it could become a tool for oppression. France has a lengthy detention period for such suspects. But it’s legal system is way too different to follow.

The legislation proposes to outlaw the glorification and encouragement of terrorism. One doesn’t need to delve further into law to understand that this is a very broad concept. The matter is further complicate by the fact that ‘terrorism’ itself is not lucid enough. Such vague and subjective provision can be used to arbitrarily restrict human rights, specially the freedom of speech. Under such provisions, for example, those supporting the overthrow of suppressive governments would be found guilty. Even supporters of animal extremists could very well become a victim[1]. There have been cases where anti-terror legislative instruments were used against peaceful protesters[2]. None of these are acceptable in a civilized society.

Any kind of terrorism is a serious crime and should remain so. Law should be taken as far as it should go, to define the border of society’s behavior. Legal provisions should be sensible. If there is a genuine need for extended detention period, it should be done without going to the extreme. Proposed ninety day period is too long a jump and the government should settle with some thing less dramatic. As mentioned, provisions like outlawing glorification of terrorism are too vague and oppressive to take place in Law. Current legislation is adequate to deal with such issues. History teaches us that suppressing voices with brute force usually never yields successful results. They only cause more antipathy. If extremist preaching does pose a threat, then changes may be brought in the immigration regulations rather than tightening legal grip within the country.

The fundamentals of human rights were built on the foundations of hundreds of years of experience with different civilizations, man’s common wisdom and religion. They are absolute and must remain so, applicable to any one who is by definition a ‘human’. We need to maintain an absolute scale; otherwise our measurement of values would shift and leave us astray.

[1] The Telegraph, 25/10/2005

[2] Amnesty International