Law Watch
Corporate Manslaughter: Imminent to stop fire burnt death of Labour
Md. Ashraful Alam & Md. Habib Alam
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Photo: www.thehindu.com |
Corporate manslaughter is a crime which enables a corporation to be punished and censured for culpable conduct that leads to a person's death. The offence is recognized in England, Hong Kong, Australia and so other countries of the modern world. The concept has been shaped to a uniform legal framework in England to bring corporation under criminal liability. The notion of corporate manslaughter has become an issue to be accepted as statutory provision after a series of fire burnt death of labour in various garments factory especially in Tajreen garments and Smart garments in Bangladesh. The existing laws have been proved to be failure and insufficient to prevent random fire burnt death of labour in those garments factory. The Failure and insufficiency of the existing law on safety of labour has led us to think to recognize corporate manslaughter to punish and censure corporation.
Basis of corporate manslaughter: Lifting the corporate veil is the basis of corporate manslaughter. Generally it is recognized that corporation is an artificial person that can not be liable for any criminal offence. But a corporation can be brought under criminal liability only under the principle of lifting the corporate veil. The principle of lifting corporate veil accelerates to bring the natural human beings who are actually behind the corporation. Since corporation is an artificial person it has no hand and mind to carry forward the activities for it. All most all the activities are done by the natural persons who are in the managing of the corporation. Not only the management but also all the benefits go to those natural persons. If they can enjoy all the benefits from corporation, why they should not be liable for any criminal activities done by them in the name of corporation?
Corporate manslaughter and duty of care: For the first time England has passed the Corporate Manslaughter and Corporate Homicide Act 2007 as a uniform law on corporate manslaughter. The Act gives a comprehensive definition of corporate manslaughter and duty of care. The Act defines corporate manslaughter as an offence if the way in which its activities are managed or organised (a) causes a person's death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. The definition provides two conditions need to be fulfilled for corporation manslaughter. Firstly, the offence must have caused a person's death and secondly, there must have a gross breach of relevant duty of care owed by the organisaton to the deceased. Therefore, it is necessary to define relevant duty of care under the Act.
The Act defines relevant duty of care as a breach of a duty of care by an organisation is a “gross” breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances. It includes any duties owed by the organisation under the law of negligence (a) a duty owed to its employees or to other persons working for the organisation or performing services for it; (b) a duty owed as occupier of premises; (c) a duty owed in connection with (i) the supply by the organisation of goods or services (whether for consideration or not), (ii) the carrying on by the organisation of any construction or maintenance operations, (iii) the carrying on by the organisation of any other activity on a commercial basis, or (iv) the use or keeping by the organisation of any plant, vehicle or other thing; (d) a duty owed to a person who, by reason of being a person for whose safety the organisation is responsible.
Elements of corporate manslaughter: There are six essential elements of corporate manslaughter. The elements are- committed by individual, collective knowledge, actus reus, vicarious liability, mens rea and breach of duty care. Clarkson identifies six theories of corporate manslaughter to justify the essential elements of corporate manslaughter. The doctrines are-
Identification doctrine: This approach holds that the offence of corporate manslaughter is made out when an individual commits all the elements of the offence of manslaughter and that person is sufficiently senior to be seen as the controlling mind of the corporation. If the offence is not done by an individual, corporation can not be liable under corporate manslaughter.
Aggregation doctrine: This approach, known as the collective knowledge doctrine, aggregates all the acts and mental elements of various company employees and finds the offence if all the elements of manslaughter are made out, though not necessarily within a single controlling mind. This approach is used in the U.S. but has been rejected in England.
Reactive corporate fault: This idea was proposed by Fisse and Braithwait. They proposed that where an individual had committed the actus reus of manslaughter, a court should have the power to order the employing corporation to institute measures to prevent further recurrence and should face criminal prosecution should they fail to do so.
Vicarious liability: The broader principle of vicarious liability is often invoked to establish corporate manslaughter. In the U.S., where an employee commits a crime within the sphere of his employment and with the intention of benefitting the corporation, his criminality can be imputed to the company. The principle has sometimes been used in England for strict liability offences concerning regulatory matters but the exact law is unclear.
Management failure model: This is the approach to be taken under the Corporate Manslaughter and Corporate Homicide Act 2007 which came into force in the UK in April 2008. Where a corporation's activities cause a person's death and the failure was because of a breach that falls far below what can reasonably be expected of the organisation in the circumstances, the offence is made out.
Corporate mens rea (guilty mind): A further approach is to accept the legal fiction of corporate personality and to extend it to the possibility of a corporate mens rea, to be found in corporate practices and policies. This approach has been widely advocated in the U.S., as the corporate ethos standard and introduced in Australia in 1995. Level of mens rea should be identified on the basis of ill motive of the natural persons governing and managing a corporation.
Necessity of corporate manslaughter in Bangladesh: Bangladesh needs recognition of corporate manslaughter and transformation of the offence into statutory framework for many reasons. Some of the important and vital points of immanency can be denoted under the following heads.
Firstly, lacuna and loophole of the existing law framework. The Labour Act 2006 is the main law relating to the safety and security of labour in Bangladesh. The code is based on preventive theory of jurisprudence. The preventive theory is applicable to the extent which enlarges prior to the occurrence of offence. The theory is not applicable where a person is already dead by fire burnt death in garments factory. In this case theory of punitive strategy would be more suitable and effective enough.
Secondly, the Labour Act provides for both of civil and criminal liability. If it is accepted as civil matter, issue is remedied by compensation. In certain cases it is remedied by punishment as of criminal proceeding. If corporation manslaughter is recognized in Bangladesh it will accelerate to bring a corporation under criminal liability.
Thirdly, The Labour Act 2006 provides for proceeding on behalf of dead labour to carry to get remedy. But financial vulnerability of family member of dead labour may not enable them to get compensation. Most of the time they do not get proper compensation or get less than that of they are entitled. If corporation manslaughter is recognized and applied, state will be a party to the proceeding. Therefore, prosecution can fight against a corporation directly and actively to establish justice to injured or dead labor.
Fourthly, most of the times we see that government has to pay financial aid to the family member of dead labour from own fund. If corporation manslaughter is accepted, government will get a handsome amount of fine from corporation that is liable for death of the deceased labour which can be easily paid to the family member of deceased labour.
The people who are the owner of a corporation are economically very much solvent. They can be put in a category of rich men in our country. They need more and more profit from corporation even though blood and flash of labour is burnt in fire. They always intend to get maximum profit by minimum expenses. It is unlikely that they look to safety and security of the labour of their own industry or organisation. Can the government avoid the demand what the soul of deceased labour echo to us?
Senior Lecturer of Law, Uttara University & Barrister-at- Law respectively.
