With so much negative news flooding the media in recent times, a piece of good news has provided some warmth. Bangladesh's High Court has asked the authorities of a public university to allow pregnant and married female students to remain in the dormitories for the time being. The discriminatory nature of such a restriction has been highlighted and the university has been asked why its recent notice requiring such students to leave the residential hall should not be cancelled or withdrawn.

While the news was widely welcomed, very few realise that this move has come after a series of information requests under the Right to Information (RTI) Act 2009 of Bangladesh were submitted by staff members of Bangladesh Legal Aid and Services Trust (BLAST) to 38 public universities between December 2022 and July 2023. They were reacting to news reports published in national dailies alleging that pregnant students were not being allowed to stay in the residential halls of Dhaka University.

The reports referred to a policy relating to the allocation of seats in five residential halls of Dhaka University which read as follows: "If any female student is married, she must inform the authorities immediately, otherwise her seat will be cancelled due to violation of rules. Only in special cases married students will be given the opportunity to study from the hall in the current session. If she is a pregnant student, she cannot stay at the hall anymore."

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The information commission is a prime mover of the RTI Act

The RTI requests sought to discover what actually happens when this policy is implemented and what the specific university guidelines are for male and female students. Based on a response from Jagannath University, BLAST filed a public interest litigation (PIL) suit on October 30, 2023 in the High Court, challenging the gender-discriminatory nature of the notice—issued on September 25 by the university, under an internal Rule (from the 2021 Rules)—requiring pregnant and married female students to leave a residential hall.

BLAST, through its RTI requests, queried whether there were specific policies for male and female students living in residential halls; whether the policies were the same for both male and female students; whether there were specific policies for married and pregnant female students; and whether there were specific policies for married male students.

The responses received indicated that most of the authorities did not have separate policies for male and female students and no specific policies for married and pregnant female students. A few indicated strict time limits for female students returning to the halls each night; five universities barred married and pregnant female students from residing in the halls at all; and six restricted the categories of visitors seeking to meet a female student to include only her parents, guardians, siblings, and husband.

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We need an independent and neutral Information Commission

In response to BLAST's PIL, Justices Naima Haider and Kazi Zinat Hoque of a Division Bench of the High Court, passed a rule nisi on Jagannath University and its officials on October 31, asking them why they should not be directed to cancel or withdraw the notice and the 2021 Rule. The Court's Rule was made returnable by February 7, 2024. It included an interim order staying the operation of the notice till that date.

The Court further directed the Ministry of Education and the University Grants Commission (UGC) to submit a report within February 7, 2024 on rules and regulations based on sex, marital status, or health in Bangladeshi universities, and the measures proposed to ensure gender inclusive policies for all students.

This development augurs well for the RTI regime in the country and testifies to the readiness of our judiciary to safeguard basic rights of our citizens. It is also indicative of the critical role our courts can play in advancing the hallowed objectives of the RTI Act. While awaiting a denouement of the case, we would like to highlight two important elements emanating from the case so far: 1) the efficacy of the RTI mechanism's use by institutions like BLAST, rather than by individuals, to sidestep the negative reactions of many public officials towards individual applicants, including harassment and threats of retribution, and 2) the readiness of our Courts to accept information derived through the RTI mechanism as admissible evidence.

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Information Commission’s key role in ensuring right to information

On the first point, it has been a constant complaint of this column that not many RTI applications originate from socially conscious and responsible citizens of the country, who fear the negative, sometimes threatening, attitude of public officials towards applicants seeking "bothersome" information. We posit that one way to overcome such fear would be for citizen groups, rather than individuals alone, to use the law in matters of public interest. The requests to the universities received positive responses largely because they came from a reputed NGO and not from individuals. There is clearly a lesson to learn here.

On the second point, it is heartening that our High Court took cognisance of evidence obtained through the RTI Act in issuing its Rule, as has happened in similar situations in the past. This is encouraging, as courts in neighbouring India are split on whether RTI responses are acceptable as evidence, and if so, how they should be presented and whether they should be considered as secondary or substantive evidence. Some courts have ruled that RTI responses may be read directly in court, others have ruled that they are inadmissible. There is thus a need to establish uniform norms of admission in this regard. Hopefully, our courts will take the lead, and the example established by BLAST in making use of RTI to address public interest issues will be emulated by other NGOs and civil society organisations of the country.

Dr Shamsul Bari and Ruhi Naz are chairman and assistant director (RTI), respectively, at Research Initiatives, Bangladesh (RIB). Email: rib@citech-bd.com

Views expressed in this article are the author's own.

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Since the interim government under Prof Muhammad Yunus came to power, intellectuals have been writing and speaking about how the interim government can be legitimised under the current constitutional system of Bangladesh. Some have even argued that removing the non-party caretaker government (NPCG) from the constitution was unconstitutional as it affected democracy and the people's right to a fair election. Learned lawyers have even filed petitions to restore the NPCG system in the constitution. I would argue that restoring the removed provisions of the constitution would be futile, and over-reliance on the system of the past would lessen the chances of achieving the reform people desire.

To plan for a better future for Bangladesh, we must first acknowledge that the Bangladesh Constitution has failed to maintain a robust democratic system. Under the 1972 constitution, Bangladesh has continuously struggled with peaceful transitions of governmental power. The struggle did not end after the introduction of the NPCG system. In its 53 years of existence, the people of Bangladesh had to shed their blood and sacrifice valuable lives multiple times for changing political regimes. In a constitutional system, if the transition of power frequently causes loss of lives, the system must be flawed, if not a complete failure. However, it would be unfair to blame the constitution solely for Bangladesh's misfortunes. Our constitution is not a divine book containing ultimate wisdom, but an artifact weaved from political decisions and compromises. It has been amended by democratically elected parliamentarians and autocratic regimes alike, bending the constitution to meet their political agendas respectively. Sticking to a failed system or bringing back another is neither necessary nor wise.

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We must focus first on constitutional process, not content

We recognise the constitution as having more democratic and legal legitimacy than ordinary legislation because we consider constituent power to be greater than legislative power. Constitutional supremacy does not stem from a provision of the constitution that declares itself to be supreme. Instead, its supremacy comes from the people's decision to treat it as such. The theory of constituent power that was presupposed by the makers of the constitution of the United States of America notes that "people's will [is] both anterior and superior to every instance of positive law, not excluding any constitutional text" (Richard S Kay, 2011). The same principle that gave the people of Bangladesh the power to adopt our previous constitutional structure allows us to create a new one. The people's willingness to breach the curfew order and take to the streets to overthrow the previous regime can be taken as people's will to reject the previous system. However, we do not have to rely on the implied will of the people. One way to know if the people want a new constitutional system is by holding a referendum. Thus, we can expand our visions of reform beyond the boundaries of the existing or past systems.

We must also acknowledge that justifying the interim government's legitimacy through the constitution in its current form is unnecessary. It is already settled that the constitution, in its current form, does not recognise an interim government and it is not the same as the NPGC. The NPGC system had a fixed tenure, and its primary mandate was to ensure a free and fair national election. The current interim government's primary mandate is not only to hold an election but also to bring significant reforms. The NPGC was designed to be headed by the most recently retired chief justice of Bangladesh unless she/he refused. The design of the interim government is quite different from the design of the NPCG. If the interim government had the same design as the NPGC system, the people may not have accepted it as openly as they have. Thus, even if the NPCG system is brought back into the constitution, it would not automatically give legitimacy to the interim government. It is also important to note that the interim government's legitimacy will derive from the legacy it leaves behind and its ability to reform Bangladesh and restore democracy, in spite of any justification it has in its favour.

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A simple plan to fix education

We must appreciate that the current time and circumstances have presented us with an opportunity not enjoyed by most generations. Time has presented us with the chance to reconstitute ourselves. The cost of lives is too great a price to ensure the proper transition of governmental power. It is not feasible or reasonable to ask the people of Bangladesh to pay this price every 10 years or so. An ideal constitutional system should outlive at least its framers' generation. If we fail to create a system that is peacefully carried on by future generations, we will have failed to "constitute" anything. The spirit of the constitution is more important than the text. As long as we can retain this spirit, we do not need to carry the mistakes of our ancestors forward.

Nafiz Ahmed teaches jurisprudence at North South University. He can be reached at: na538@cantab.ac.uk

Views expressed in this article are the author's own. 

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The High Court today (August 31, 2022) cleared the way for a lower court concerned to resume the trial proceedings of a sensational case filed for killing four officials of Bangladesh Television (BTV) during the mass upsurge in 1975.
 
The four officials, who were killed in Dhaka's Rampura were the then deputy general director (programme) of BTV Monirul Alam, its administrative officer AFM Siddique, chief accountant Akmal Khan and photographer Firoz Kaiyum Chowdhury.

A year after the killings, three of their skeletons were recovered from Motijheel, but Monirul's corpse was never discovered. The remains were laid to rest in the Azimpur graveyard. The four kidnapping cases that the families had filed eventually turned into a murder case.

Today, the HC lifted the stay order issued on April 25, 2010, on the trial proceedings of the case. 

The bench of Justice Md Abu Zafor Siddique and Justice Md Mahmud Hassan Talukder lifted the stay order after rejecting a petition filed by Altaf Hossain, an accused in the murder case, in 2005 seeking cancellation of the trial proceedings.   

Following today's HC order, the trial proceedings against five accused will run at the lower court as one accused has already died and proceedings against the other three accused have been scrapped by the HC earlier, Deputy Attorney General Samira Tarannum Rabyea told The Daily Star.

Attorney General AM Amin Uddin appeared for the state while lawyers Md Ozi Ullah, Md Harun Ur Rashid and Sheikh Rezaul Haque stood for accused petitioner Altaf Hossain.       

Following the assassination of Father of the Nation Bangabandhu Sheikh Mujibur Rahman and most of his family members on August 15, 1975, army personnel were reportedly stationed at radio and TV stations in Dhaka.

Third and fourth-grade BTV staff members were agitating at the time to get their demands met, but the authorities were rejecting them.

The honorary Lt Altaf Hossain of the army, stationed at the TV station in Rampura, had a meeting with the leaders of the protesting staff and agreed to help them in getting their demands met.

On November 6, 1975, Altaf and the other leaders decided to confine important officials to press for their demands.

On the morning of November 7 of that year, Altaf, BTV staff members Abul Quashem Bagoja, Abul Awal Sarkar, Lutfar Rahman Talukder, Syed Ainul Kabir, Ainuzzaman, and Md Shahjahan Miaji detained Monirul Alam, Akmal Hossain, and AB Siddique at the TV entrance and killed them.

The High Court today (August 14, 2022) issued an injunction restraining the government from constructing houses under the Ashrayan Project at a historical playground in Netrokona's Kendua upazila for the next three months.

In response to a writ petition, the court also issued a rule asking the officials concerned to explain why the action of the deputy commissioner of Netrokona to change the class of the playground at Balaishimul mouza for constructing houses under the Ashrayan Project should not be declared illegal.

In the rule, the court asked them to show causes why they should not be ordered to protect and preserve the Balaishimul playground. 

At the same time, the HC ordered the DC of Netrokona to prepare a report on this issue and submit it before this court in 60 days.

The HC bench of Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo issued the order and rule following a writ petition filed by Bangladesh Environmental Lawyers Association (Bela) Netrokona in this regard.

During the hearing, Deputy Attorney General Arobinda Kumar Roy vehemently opposed the writ petition saying that among the proposed 36 houses, only 12 will be constructed in the field.

The court then said changing the class of the field while a case is pending with a lower court on this issue is abuse of power.

Bela chief Syeda Rizwana Hasan told The Daily Star that the district administration of Netrokona has illegally and arbitrarily initiated to construct houses under the Ashrayan Project by changing the class of 0.46 acres of land of the playground out of total 1.80 acres, despite the locals repeatedly asking them not to.

We are hardly surprised that there was no meaningful outcome of the dialogue arranged by the Election Commission (EC) with all the registered political parties in the country on Saturday. Almost a third of the parties invited, including the BNP, did not even attend the talks, which were arranged reportedly to apprise them of its preparations to hold the upcoming 12th parliamentary election. The commission decided to hold the dialogue at a time when the ongoing political crisis had taken a turn for the worse, and there were expectations that it would play a constructive role in addressing the key concerns raised by the major political parties. However, in the absence of any real attempt to tackle the root causes of the current political impasse, such a dialogue was bound to fail.

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Compromise, not violence, must be the way out

The EC scheduled the dialogue only three days after the BNP's botched rally, which descended into chaos and violence following clashes between the party members and police. Since the October 28 mayhem, law enforcement agencies have arrested at least 7,835 BNP leaders and activists around the country till November 4, including at least seven of its top leaders, according to a Prothom Alo report. Other leaders are in hiding to escape arrest. In this situation, did the EC really expect someone from the BNP to show up at the dialogue?

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All about fair and unfair elections

Besides BNP, 16 other parties boycotted the dialogue, seeing it as a futile exercise. Bangladesh Jasod released a statement explaining that it boycotted the dialogue as it would have no influence on ensuring a conducive environment for a free and fair election. Even a former election commissioner told this daily that the EC held the talks "just to show that they have called everybody once again and that they did not get support [from all political parties]." When a country is engulfed in such turmoil, these kinds of formulaic dialogues do little to boost the political parties' confidence. The EC should have anticipated that.

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Dialogue is not optional, it’s a must at this stage

What we really need right now is some meaningful actions from the major political parties to resolve the ongoing political stalemate. The election is less than three months away, and the two main political camps, Awami League and BNP, are showing no sign of compromise. If this continues, we are afraid the spate of political violence will continue till the election, and the situation will get even worse. Unfortunately, as the crackdown on opposition leaders intensifies across the country, the hope of a constructive dialogue between the parties now seems to be a far-off dream, thanks in part to the EC, which has thus far failed to create a level playing field and inspire confidence in its ability to steer the country through a free and fair election.

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