In view of the end of the year, this write-up comprises notable pronouncements made by the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh in 2022.

Guidelines on the imposition of travel ban

The Anti-Corruption Commission (ACC) imposed a travel ban on Tafsir Mohammad Awal, a reputed businessman, on the allegation of corruption. Thereafter, Mr. Tafsir moved the HCD with a writ petition. On 24 February 2022, the HCD disposed of the petition and held that the right to leave the country as enshrined in article 36 of the constitution is not absolute. However, the restriction must be imposed by law with the object of preventing escape from due process of law and not by executive order. Therefore, an order of travel ban by the ACC officials shall not be valid unless it is approved by the appropriate court beforehand. In the present case, the HCD declared the travel ban on Mr. Tafsir illegal due to the lack of judicial affirmation of the order made by the ACC officials.  

Seeking a report on the implementation of guidelines regarding sexual harassment in the workplace

In 2009, the HCD provided some guidelines with regard to the prevention of sexual harassment at the workplace. Last year, Ain o Salish Kendra filed a writ petition for the lack of implementation of those guidelines. Consequently, on 9 January 2022, the HCD issued a direction to the Cabinet Secretary, Law Secretary, Public Administration Secretary and Family Planning Secretary to submit a report containing the steps taken to implement those guidelines in the governmental and non-governmental institutions.

Questioning the constitutionality of putting death row prisoners in condemned cell 

On 5 April 2022, the HCD questioned the legality of keeping the death row prisoners in the condemned cell before the confirmation of the sentence. This was in response to a writ petition filed by three convicts who were awaiting their sentences in condemned cells. The court issued a rule asking why Regulation 980 of the Bangladesh Jail Code which allows death row convicts to be put in condemned cells should not be declared unconstitutional being violative of article 35 of the Constitution. The court also directed the Inspector General of the Prison to submit a report regarding the facilities provided in the condemned cell.

Directing to formulate a guideline on polygamy

The HCD, on 5 January 2022, while disposing of a writ petition filed by Advocate Ishrat Hasan, issued a rule asking the government to explain why section 6 of the Muslim Family Law Ordinance 1961 should not be declared to be unconstitutional. Section 6 of the ordinance allows polygamy of the husband with prior permission from an arbitration council. The court further asked both the secretaries of the divisions of the Ministry of Law, Justice, and Parliamentary Affairs and the Ministry of Religious Affairs to answer why they should not be asked to formulate a guideline regarding polygamy to ensure equal rights for women.

Removing the requirement of prior permission in arresting government officials

An HCD bench on 25 August 2022 declared section 41(1) of the Government Service Act 2018 as unconstitutional. This section prohibits the arrest of any public servant on any criminal charge without prior approval of the concerned authority. According to the bench, the aforementioned provision violates articles 26, 27, and 31 of the constitution of Bangladesh. Moreover, the provision makes it extremely difficult to arrest government officials and creates ample scope for their immunity. The HCD bench further stated that 'If this provision remains in place, there will be no ending to criminal cases against public servants.' The AD, however, stayed the HCD verdict on 1 September 2022.

Directing cheque dishonour cases to be filed in civil court

The HCD gave a landmark judgment on 23 November 2022 whereby it barred banks and other financial institutions from filing cases related to dishonour of cheques for defaulted loans under the Negotiable Instruments Act 1881. It also ruled in the court that all the pending cases of cheque dishonour filed by banks and other financial institutions before different criminal courts will be stayed. Furthermore, it directed the criminal courts of the country not to take cognizance of any case of cheque dishonour and directed the banks and financial institutions to file civil suits before the Artha Rin Adalat for recovery of defaulted loans instead. The Appellate Division stayed the HCD order for 2 months on 1 December 2022. 

Judgment on election proceedings

In May of this year, the AD of the SC upheld the verdict of the HCD relating to an order of the Election Commission (EC) for a re-poll in an election centre at Durgapur. The EC had given that order after allegations of irregularities was reported by the Returning Officer during the Union Council election at Durgapur, Netrokona. The HCD declared that the EC has no jurisdiction to direct re-poll after the result has been announced in an election unless it is satisfied that the interference in the election is of such extent that the election result cannot be determined. The EC shall not cancel the announced result and declare a re-poll for allegations of irregularities alone. 

The writers are law graduate, University of Dhaka and Intern, Law Desk respectively.