Information Note on Victims’ Participation ICC Proceedings

Introduction:

For the first time in the history of international criminal justice, the negotiators of the Rome Statute placed victims at the heart of proceedings, recognising in the second paragraph of the preamble that States Parties were “mindful that during [the last] century millions of children, women and men have been victims of unimaginable atrocities that deeply shocked the conscience of humanity”.

The Rome Statute, especially article 68(3), enables victims of crimes falling under the jurisdiction of the Court to make representations, to submit observations and to have their views and concerns presented and considered “when [their] personal interests […] are affected” at all phases of the proceedings. In addition, victims can seek reparations for the harm suffered as a result of these crimes pursuant to article 75 of the Rome Statute.

Victims now play an important role in the proceedings of the International Criminal Court. As mentioned above, pursuant to article 68(3) of the Rome Statute, during judicial proceedings, victims have the right to present their views and concerns directly to the Court. Victims may exercise their participatory rights throughout all instances of judicial proceedings, including pre-trial, trial and appeal proceedings. In fact, victims’ rights to make observations to the Court on specific topics may commence even before the pre-trial stage (for instance on a question regarding the ICC’s jurisdiction or where the Prosecutor decides not to commence an investigation subsequent to victims’ communications with the ICC in respect of the situation).

Notably, as mentioned earlier, victims may also claim reparations for the harm that they have suffered due to crime in cases where the proceedings lead to conviction of the accused. Consequently, at the end of a trial, if there is a conviction, the Trial Chamber may order a convicted person to pay reparations to the victims of the crimes of which the person was found guilty. The Court may order such reparations to be paid through the Trust Fund for Victims. The Court may award reparations on an individual and/or collective basis, whichever is, in its view, the most appropriate for the victims in the particular case. Collective and/or individual reparations may include monetary compensation, return of property, rehabilitation, medical support, victims’ services centres, or symbolic measures such as apologies or memorials.

For the purposes of participation in ICC proceedings, the Court recognises the following categories of victims:

– Individual persons who have suffered harm as a result of one of the ICC crimes. Individual victims should apply by completing the application form for participation for individuals which will be available on this website soon. 

Victims may include men and women, victims of sexual violence, children, persons with disabilities, or elderly persons. A victim can also be a person who has suffered harm as a result of a crime which targeted at another person, such as a family member of someone who has been killed.

– Organisations or institutions, when their property dedicated to certain purposes (religion, education, art, science or charitable and humanitarian purposes, or historic monuments or hospitals) is harmed as a result of one of the crimes outlined in the arrest warrants. Organisations and institutions should apply for participation by using the application form for participation for organisations which will be available on this website soon. Only duly authorised representatives of an organisation or institution may complete the application form.

Relevant Statutory Provisions and Rules:

Article 68(3) of the Rome Statute of the International Criminal Court provides for the protection of the victims and witnesses and their participation in the proceedings of the Court.

Section III (Rules 85 to 99) of the Rules of Procedure and Evidence of the International Criminal Court (ICC) elaborates on the issues pertaining to victims’ participation as enshrined in Article 68(3) of the Rome Statute, it includes:

– Definition of the term ‘victims’ (Rule 85)

– Protective and Special Measures (Rules 87 and 88)

– Victims’ Participation in the Proceedings (Rule 89)

– Legal Representatives of Victims (Rule 90) and their Participation in the Proceedings (Rule 91)

– Views of Victims or their Legal Representatives (Rule 93)

– Reparations to Victims (Rules 94 to 97)

– Trust Fund for Victims (Rule 98)

Relevant Offices at the Court related to Victims:

1. Victims Participation and Reparations Section (VPRS):

VPRS is responsible for assisting victims in the process of applying for participation in proceedings, and reparations in case of a conviction. It also assists victims and the Chambers in finding an appropriate legal representation of victims during the proceedings.

2. Office of Public Counsel for Victims (OPCV):

Within the Court, the Office of Public Counsel for the Victims (OPCV) provides legal representation to victims throughout proceedings, as well as assistance and support to external lawyers appointed by victims. The OPCV is an independent office and falls within the Registry solely for administrative purposes. This independence is a prerequisite for carrying out the mandate of assisting and representing legal representatives of victims and victims. Such independence allows the Office to work without being subjected to pressure of any kind and preserves the privileged relationship between victims and their lawyers. The Office has also an important role in enhancing the rights of victims in the proceedings, advocating at different levels and participating in specialised meetings with subsidiary bodies of the Assembly of States Parties and NGOs.

Further Reference:

Victims

Representing Victims before the International Criminal Court: A Manual for Legal Representatives

Helping Victims make their Voice Heard: The Office of Public Counsel for Victims

Notes on Writs

Introduction:

The HCD under Article 102(1) has the power to pass orders necessary to enforce fundamental rights enshrined in Part II of the Constitution. It is important to note that the right to move the HCD under Article 102(1) seeking the enforcement of the fundamental right is itself a fundamental right as enunciated in Article 44(1) of the Constitution.

Only on the ground of violation of a fundamental right can someone move to the HCD under Article 102(1).[1] However, the aforementioned observation is not in line with Part III of the Constitution and is open to exceptions.

 

Judicial Review:

Judicial review is fundamentally the procedure to check validity of laws, i.e. whether they conform to constitutional provisions. The US Supreme Court in Marbury v. Madison established the principle of judicial review, also declared the supremacy of the constitution.[2] Article 7 of Constitution of Bangladesh declares its supremacy, i.e. the supremacy of the constitution. Furthermore, in Bangladesh, the Supreme Court has the constitutional responsibility to adjudicate the validity of laws.[3]

Questions of Fact – As per Article 44, the HCD cannot refuse to entertain an application under Article 102(1) on the ground that the petition involves resolution of disputed questions of fact.[4]

Nature and Form of Relief – It is the HCD’s discretion to fashion the relief according to the circumstances of a particular case.[5] HCD is competent to award compensation when it is found that fundamental rights have been infringed by the illegitimate exercise of power by police under Sec. 54 and 167 of the Code of Criminal Procedure.[6] The HCD has awarded compensation when it found the detention of citizens to be completely without any basis on record or the result of utter negligence.[7]

Doctrine of Political Question – The AD in exercise of its judicial self-restraint declined to enter into the political question of virtues and vices of hartal and strike in absence of any constitutional imperative.[8]

Exhaustion of Efficacious remedies – There is no requirement for the exhaustion of efficacious remedies in case of a petition under Article 102(1) for the enforcement of fundamental rights.[9]

Writs:

Writ of Certiorari [Article 102(2)(a)(ii)]:

The HCD can entertain a certiorari petition in case of lack of jurisdiction, excess of jurisdiction or violation of principles of natural justice.[10] Any action not authorised by law is invalid and ultra vires.[11]

A Writ of Certiorari may be applicable in situations of inter alia excess of jurisdiction, lack of jurisdiction, misinterpretation of the law, failure to exercise jurisdiction, use of power for improper purpose, procedural ultra vires, failure to give any or adequate reasons, and mala fide use of authority.

Writ of Prohibition [Art. 102(2)(a)(i)]:

A Writ of Prohibition may be filed for the same grounds as a Writ of Certiorari, but it must be filed before the alleged impugning act has taken place.

Writ of Mandamus [Art. 102(2)(a)(i)]:

A Writ Mandamus cannot compel the government to implement its policy.[12]A Writ of Mandamus cannot be issued on mere consideration of equity.[13]

 

Errors of fact:

The HCD in certiorari cannot interfere with findings of fact unless it is a case of no evidence or a case of non-consideration of material evidence, misreading of the evidence, or misconstruction of the documents.[14]

N.B. A finding of fact based on no evidence is treated as an error of law.[15]

The test of reasonableness is adopted in case of questions of fact.[16]

 

Duty to act fairly:

The State has a duty to act fairly; unfair measures can be challenged.[17] The law enjoins the government to act fairly, reasonably, and not arbitrarily.[18]

 

Legitimate Expectation:

Legitimate expectation cannot be negated by executive action unless on grounds of public interest, however, the court will uphold legitimate expectation only when the facts of the case clearly and unambiguously give rise to the same.[19]

Principles of Natural Justice:

(i) A man cannot be condemned unheard (audi alteram partem)

(ii) A man cannot be the judge in his own cause (nemo debet esse judex in propria causa)

These principles extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some rules of fair procedure.[20]

These rules apply even though there may be no positive words in the statute requiring application of these rules.[21]

In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned.[22]

Consideration of legitimate expectation also involves the principles.[23]

Basic principle of fair procedure: fair opportunity to answer the case against him or her and to put forward his or her own case.[24]

The service of a person working in a post cannot be terminated without affording him or her an opportunity of being heard.[25]

The person sought to be affected must know the allegations and the materials used against him or her, and he or she must be given a fair opportunity to correct or contradict them.[26]

The right of fair hearing is of universal application whenever a decision or action affect the rights or interest of a person is made or taken.[27]

For a hearing to be fair it must fulfil some conditions: the authority should: (i) receive all relevant material which the person concerned produces, (ii) disclose all information, evidence or materials which the authority wants to use against the person in arriving at the decision, and (iii) afford opportunity to the person to controvert the information or material sought to be used against that person.[28]

When an employee is sought to be punished on a charge of misconduct, examination of witnesses in support of the charge should be in presence of the employee and the employee should be given the opportunity of cross examining the witnesses.[29]

Non-disclosure of materials may be permitted if such full disclosure may injure the individual affected or is against public interest.[30]

Generally, the inquiry report has to be supplied to the party proceeded against.[31]

Writ of Habeas Corpus [Art. 102(2)(b)(i)]:

A Habeas Corpus can be issued against any wrongful detention be it by public functionary or a private citizen.

Situations where a Writ of Habeas Corpus may be issued:

– Detention of seven children of the same age by persons falsely claiming to be parents of the children.[32]

– The father illegally took away the child from the mother and detained the child.[33]

– Mother’s right to custody of son till he attains the age of seven.[34]

– A mother can seek Habeas Corpus when her lawful custody to minor children is denied.[35]

– The grounds for arrest must not be irrelevant, vague or non-existent, and they must be reasonable.[36]

– A detention order that is not authorized by law will be held unlawful. The detention order was issued to prevent the detenu from indulging in prejudicial activities, however, it later came to light that it was actually for collateral purposes (to stop the detenu from escaping).[37]

N.B. The same writ petition can be maintained even if the detention is continued under a new order. Basically, the writ is maintainable as long as the detention continues.[38]

Writ of Quo Warranto [Art. 102(2)(b)(ii)]:

The Writ of Quo Warranto is used to ensure that no one can hold any public office without having a valid claim to that office. A writ of Quo Warranto will lie against the office of the attorney-general, the chief justice, judge of the HCD, ministers, members of parliament, chairman of municipality, members of municipal boards, administrator of municipal corporation appointed by the government, chief engineer of municipal board, member of bar council, chairman or member of union parishad, member of senate or syndicate of a university, dean of a faculty in a university, chief metropolitan magistrate, government pleader, members of the civil service.

A Writ of Quo Warranto questioning the election of the president of the republic is not maintainable before the president-elect has taken the oath of office. However, a writ of certiorari is maintainable in such case.[39] Same principle is applicable in case of election of chairman of local council (after declaration of result but before taking the oath of office).[40]

N.B. Art. 102 (2) does not require the applicant for a Writ of Quo Warranto to be an aggrieved party.[41]

[1] Chairman RAJUK v. Abdur Rouf Chowdhury, (2009) 61 DLR (AD) 28.

[2] Marbury v. Madison, (1803) 2 L. Ed. 60.

[3] Anwar Hossain Chowdhury v Bangladesh, 1989 BLD (Spl) 1.

[4] Kochuni v. Madras, AIR 1959 SC 725.

[5] Bangladesh v. Ahmed Nazir, (1975) 27 DLR (AD) 41.

[6] BLAST v. Bangladesh, (2003) 55 DLR 363.

[7] Bilkis Akhtar Hossain v. Secy. Ministry of Home, (1997) 2 BLC 257; Shahnewaz v. Bangladesh, (1998) 50 DLR 633; Korban v. Bangladesh, (2003) 55 DLR 194.

[8] Abdul Mannan Bhuiyan v. State, (2008) DLR (AD) 49.

[9] HM Ershad v. Bangladesh, (2002) 7 BLC (AD) 67.

[10] Pabna Mental Hospital v. Tossadek Hossain, (2005) 13 BLT (AD) 91.

[11] Hamidul Huq Chowdhury v. Bangladesh, (1981) 33 DLR 381; Ataur Rahman v. Election Commission, (2010) 15 BLC 506.

[12] Yunus Mia v. Secy. Ministry of Public Works, (1993) 45 DLR 498; Md. Abdul Bari v. Bangladesh, (2010) BLD 465.

[13] Abed Ali v. Bangladesh, (1996) 1 BLC 39; Md. Abdul Bari v. Bangladesh, (2010) BLD 465

[14] Bangladesh v. Abdul Wahed Talukdar, (2006) 11 BLC (AD) 218; Bangladesh v. Afsar Ali, (2006) 14 BLT (AD) 44.

[15] Bangladesh v. Md. Jalil, (1996) 48 DLR (AD) 10; Bangladesh v. Md. Afsar Ali, (2006) 58 DLR (AD) 107.

[16] East Pakistan v. Abdus Sobhan Sowdagar, (1964) 16 DLR (SC) 249, Para 9; Abdul Baqui Balooch v. Pakistan, (1968) 20 DLR (SC) 249.

[17] Ekushey Television Ltd. v. Chowdhury Mahmood Hasan, (2002) 54 DLR (AD) 130, 144; SSA Bangladesh Ltd. v. Eng. Mahmudul Islam, (2000) BLD (AD) 92.

[18] Nazrul Islam v. Bangladesh, (2001) 53 DLR 519.

[19] BTMC v. Nasiruddin Chowdhury, (2002) 7 BLC (AD) 144.

[20] RAKUK v. Dhaka WASA, (2009) 14 BLC (AD) 129; University of Dacca v. Zakir Ahmed, (1964) 16 DLR (SC) 722.

[21] Unique Hotels and Resorts Ltd. v. Bangladesh, (2010) 15 BLC 770; Regard Chemical Works v. NBR, (2001) BLD 342; H.M. Ershad v. Bangladesh, (2001) BLD (AD) 69.

[22] University of Dacca v. Zakir Ahmed, (1964) 16 DLR (SC) 722; SM Delwar Hossain v. Bangladesh, (2009) 61 DLR (AD) 59;RAKUK v. Dhaka WASA, (2009) 14 BLC (AD) 129; Farzana Haque v. Dhaka University, (1990) 42 DLR 262; Unique Hotels and Resorts Ltd. v. Bangladesh, (2010) 15 BLC 770; Dr Abeda & others v. Public Service Commission, (2007) 59 DLR 182.

[23] Sk Ali Ahmed v. Secretary, Ministry of Home Affairs, (1988) 40 DLR (AD) 170; Bangladesh Telecom Ltd. v. BTTB, (1996) 48 DLR (AD) 20.

[24] Sk Ali Ahmed v. Secretary, Ministry of Home Affairs, (1988) 40 DLR (AD) 170; Bangladesh Telecom Ltd. v. BTTB, (1996) 48 DLR (AD) 20;  University of Dacca v. Zakir Ahmed, (1964) 16 DLR (SC) 722; RAKUK v. Dhaka WASA, (2009) 14 BLC (AD) 129; Jahanara Ahmed v. Md. Abdul Quyum, (2003) 8 BLC (AD) 20.

[25] Serajul Azim Khan v. Secy, Ministry of LGED, 2007 BLD 397.

[26] Kanda v. Government of Malaya, [1962] AC 322; Chief Constable of the North Wales Police v. Evans, [1982] 3 All E.R. 141.

[27] Bangladesh v. Khashru Miah, (2006) 58 DLR (AD) 46; Reazuddin v. Bangladesh, (2005) 57 DLR 698; Abdul Malek v. Bangladesh, (2005) 57 DLR 284; Moktar Hossain v. Bangladesh, (2007) 59 DLR 535; Jabbar Jute Mills v. Abul Kashem, (2007) 59 DLR 152; Md. Shawkat Ali v. Director General, (2010) 18 BLT 303; Bazlur Rahman v. Bangladesh, (2010) 18 BLT 279.

[28] National University v. Sultana Razia, (2009) 17 BLT (AD) 190.

[29] M.A. Hai v. T.C.B., (1980) 32 DLR (AD) 46.

[30] R v. Kent Police Authority ex p. Godden, [1971] 2 QB 662; R v. Home Secretary ex p. Hosenball, [1977] 1 WLR 766.

[31] Borhanuzzaman v. Ataur Rahman, (1994) 46 DLR (AD) 94; Mostafa Mia v. Labour Court, (1994) 46 DLR 373; Torab Ali v. BTMC, (1989) 41 DLR 138.

[32] Bangladesh Jatiyo Mahila Ainjibi Samity v. Ministry of Home Affairs, (2009) 61 DLR 371.

[33] Ayesha Khatun v. Maj. Shabbir, (1993) BLD 183.

[34] Farhana Azad v. Samudra Ejazul Haque, (2007) BLD 384.

[35] Abdul Jalil v. Sharon Laily, (1998) 50 DLR (AD) 55.

[36] Abdul Latif Mirza v. Bangladesh, (1979) 31 DLR (AD) 1.

[37] Sajeda Parvin v. Bangladesh, (1988) 40 DLR (AD) 178.

[38] Alam Ara Huq v. Bangladesh, (1990) 42 DLR 98.

[39] Abu Bakr Siddiqui v. Mr. Justice Shahabuddin, (1997) 49 DLR 1.

[40] Farid Mia v. Amjad Ali, (1990) 42 DLR (AD) 13.

[41] Dr. Kamal Hossain v. Serajul Islam, (1969) 21 DLR (SC) 23; Abu Taher Mia v. Farazuddin, (1989) 41 DLR 543.

Notes on Fundamental Rights

Distinction between Fundamental Rights and Human Rights:

Fundamental rights certain rights or civil liberties that are the guaranteed to all persons and citizens by the Constitution of Bangladesh, i.e. the rights and privileges prescribed in Part III of the Constitution of Bangladesh. On the other hand, human rights are certain inalienable rights inherent to all human beings. Human rights are expressed and guaranteed by law through treaties and conventions, customary international law, and general principles of international law. International conventions and declarations such as the Universal Declaration on Human Rights, 1948; the International Covenant on Civil and Political Rights, 1966 and its optional Protocols; and the International Covenant on Economic, Social and Cultural Rights, 1966 govern international human rights law and are reflected in domestic legislations. It is evident that there are many similarities and overlaps between fundamental rights and human rights; however, it can be argued that there is no necessary connection between the two bodies of rights.

 

Role of International Law in Part III:

The Court can consider international conventions and covenants to aid the interpretation of provisions of Part III, particularly to determine the implicit rights in the fundamental rights like the right to life and liberty which are not enunciated in the constitution.[1]

“The national courts should not… straightaway ignore the international obligations which a country undertakes. If the domestic laws are not clear enough or there is nothing therein the national courts should draw upon the principles incorporated in the international instruments.”[2]

 

Reasonable Restriction:

The HCD has held that the term restriction also includes ‘prohibition’.[3] On the question of when a restriction can be said to be reasonable, the HCD has opined that the reasonability of a restriction will be depend on the circumstances of each case but it must be an objective standard based on the ordinary prudent man test for a given circumstance.[4]

 

Due Process:

Article 31 and 32 of the Constitution is an analogue enunciation of the concept of ‘due process’ in the United States.[5]Only a natural person is entitled to the protection prescribed by Article 31 of the Constitution.[6] Article 31and 32 also protects individuals who are not Bangladeshi citizens but for the time being are in Bangladesh.[7]

The right to life is also relevant in case of children of poor families, who do hazardous work to provide for their families. The HCD in Ain-O-Salish Kendra v. Bangladesh, issued recommendations in line with Article 31 and international conventions relating to rights of children by stating that the state has the duty to provide children with a healthy atmosphere, education and a good living standard for their families.[8] Similarly on the question of eviction of residents of slums, on the basis of Article 31 and 32, the HCD has directed that they must not be evicted until an alternative arrangement of rehabilitation plots made and allotted to the residents of the slum.[9] The wholesale eviction of sex-workers thus depriving them of their livelihood was held by the HCD to be a violation of Article 31.[10]

The right to life also includes the right to security of life,[11] protection against natural disasters,[12] protection of health,[13] right to unadulterated food,[14] protection of the environment.[15]

 

Right to Equality:

Art 27 of the Constitution provides every citizen with the right to be treated equally before the law and the right to equal protection of the law. Therefore, any discriminatory measure or treatment by the state may be challenged on grounds of violation of Article 27. However, in order for a claim of violation of Article 27 to succeed the petitioner must first establish before the court that his claim is legal.[16] Furthermore, a complaint of discrimination can only be made before the court by a person whose right to equality has been impinged.[17]

Doctrine of Classification:

Article 27 of the Constitution does not guarantee absolute equality requiring the law to treat all persons in the same manner.[18] Therefore, the right to equality basically means that persons under like circumstances should be treated alike in case of both conferment of privileges and imposition of liabilities.[19] This Doctrine was applied by the AD in S.A. Sabur to justify why someone can be disqualified from running for public office (elected office).[20] Similarly, in Secretary, Ministry of Establishment v. Md. Jahangir Hossain, the AD held that appointment of only some and refusal to appoint others from the list of Mujibnagar employees which was prepared by the government was discriminatory and violation of Article 27.[21] However, alternatively, there are multiple situations where the AD has rejected the argument that a certain specific collection of individuals form a ‘class’ and hence, they were ineligible to argue that they were discriminated against.[22]

The AD has held that the exclusion of some candidates who passed the BCS written examination without providing any reason to that affect nor allowing any opportunity to any of them to be heard is tantamount to discrimination.[23] The inequality in the payment of PA-cum-stenographers of the Supreme Court was held to be discriminatory by the AD.[24]The HCD has held that two similarly situated companies must be treated in the same manner and are entitled to the same benefits.[25]

The classification that is made must be reasonable and must further the purpose for which it is made. Likewise, the restrictions on the sponsors and directors of banks and financial institutions and their family members from sponsoring or being appointed as directors or CEOs of any insurance company has been held to be a reasonable classification; made for the purpose of preventing monopolies in the capital market.[26]

There is a presumption of constitutionality of a legislative classification and it is the burden of the petitioner who is challenging the said legislation to prove discrimination.[27]

[1] Bangladesh National Women Lawyers Association v. Ministry of Home Affairs, (2009) 61 DLR 371; H.M. Ershad v. Bangladesh, 2001 BLD (AD) 69, 70; State v. Metropolitan Police Commissioner, (2008) 60 DLR 371.

[2] H.M. Ershad v. Bangladesh, 2001 BLD (AD) 69, 70.

[3] Oali Ahad v. Bangladesh, (1974) 26 DLR 376.

[4] Oali Ahad v. Bangladesh, (1974) 26 DLR 376.

[5] Mujibur Rahman v. Bangladesh, (1992) 44 DLR (AD) 111 (per Rahman J).

[6] Elias Brothers (Md) Pvt. Ltd. v. Bangladesh, (2011) 16 BLC 327.

[7] HFDM De Silva v. Bangladesh, (1997) 2 BLC 179.

[8] Ain-O-Salish Kendra v. Bangladesh, (2011) 63 DLR 95.

[9] Alauddin Khan v. Bangladesh, (2009) 14 BLC 831; Ain-O-Shalish Kendra v. Bangladesh, (1999) BLD 488.

[10] B.S.E.H.R. v. Bangladesh, (2001) 53 DLR 1.

[11] Bangladesh Jatiya Mahila Ainjibi Samity v. Ministry of Home Affairs, 2008 BLD 580 (concerning child trafficking)

[12] Human Rights for Peace v. Bangladesh, (2011) 63 DLR 71.

[13] Dr. Mohiuddin Farooque v. Bangladesh, (1996) 48 DLR 438.

[14] Human Rights for Peace v. Bangladesh, (2010) BLD 125.

[15] Dr. Mohiuddin Farooque v. Bangladesh, (2003) 55 DLR 69 (concerning environmental pollution); BELA v. Bangladesh, 2010 BLD 185 (concerning the extraction of stones from river beds); Salimullah v. Bangladesh, (2003) 55 DLR 1; Human Rights for Peace for Bangladesh v. Bangladesh, (2009) 14 BLC 759 (concerning the protection of river channels from obstruction).

[16] NCTB v. Shamsuddin, (1996) 48 DLR (AD) 184; Abdur Rahman v. Ministry of LGRD, (2005) 10 BLC (AD) 179.

[17] BRAC v. Professor Mozaffar Ahmed, 2002 BLD (AD) 41.

[18] S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[19] S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[20] S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[21] Secretary, Ministry of Establishment v. Md. Jahangir Hossain, (1999) 51 DLR (AD) 148.

[22] Secy. Aircraft Engrs. of Bangladesh v. Registrar of Trade Union, (1993) 45 DLR (AD) 122; Bangladesh Retired Government Employees Welfare Association v. Bangladesh, (1999) 51 DLR (AD) 121; AHM Mustain Billah v. Bangladesh, (2005) 57 DLR (AD) 41; CCIE v. Faruk Ahmed, (2007) 12 BLC (AD) 44; Delwar Hossain Mollah v. Bangladesh, (2007) 15 BLT (AD) 124.

[23] Dr. Abeda Begum & others v. Public Service Commission, (2007) 59 DLR (AD) 182.

[24] Bangladesh v. Shamsul Haque, (2007) 59 DLR (AD) 54.

[25] Bangladesh Edible Oil Ltd. v. National Board of Revenue, (2006) 11 BLC 35.

[26] Nasreen Fatema v. Bangladesh, (1997) 49 DLR 542 (affirmed in (1998) 3 BLC (AD) 190).

[27] S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

Notes on the Independence of the Judiciary

Introduction:

Rule of law and the separation of powers, specifically the judiciary have been the inherent features of the Constitution since its adoption right after independence of Bangladesh. The cases; Anwar Hossain Chowdhury v. Bangladesh[1](hereafter referred to as the 8th Amendment case) and Secretary, Ministry of Finance v. Masdar Hossain[2] (hereafter referred to as the Masdar Hossain case) have had great implications on the two aforementioned principles and brought about significant changes in the interpretation and implementation of these two principles in the Constitution and also on the Legislative and Executive branches of the State.

 

The 8th Amendment Case:

Six permanent benches of the High Court Division were set up in the various Divisions outside Dhaka through the Constitution (Eighth Amendment) Act, 1988 (hereafter referred to as the Amendment) by the amendment of Article 100 of the Constitution. The Amendment was challenged on the basis of its constitutionality in two writ petitions which was summarily dismissed by the High Court Division; however, on appeal the Appellate Division declared the Amendment ultra vires to the Constitution on the fundamental ground that Article 7; ensuring the supremacy of the Constitution is a basic structure and thus an unalterable feature of the Constitution, thus, the power to amend the Constitution under Article 142 is not unlimited. The impugned Amendment because of its attempt to alter a basic feature of the Constitution was declared to be ultra vires. The majority was formed by Justice Badrul Haider Chowdhury, Justice Shahabuddin Ahmed and Justice M.H. Rahman; while Justice A.T.M. Afzal dissented.

Justice Badrul Haider Chowdhury enumerated 21 features of the Constitution of which some are part of the basic structure and hence, cannot be amended. He held that the impugned Amendment contravened with Articles 102 (Powers of High Court Division to issue certain orders and directions, etc.) and Article 44 (Enforcement of fundamental rights) of the Constitution. He opined that the People are the solitary holders of powers, the Executive, Legislative and the Judiciary function as per their will. He makes the following observations as to the meaning and interpretation of Article 7:

“58. On analysis the Article reveals the following:

(a) All powers in the Republic belong to the people. This is the concept of Sovereignty of the people. This echoes the words of the proclamation “by the mandate given to us by the people of Bangladesh whose will is supreme;

(b) Their exercise on behalf of the people, shall be effected only under, and by the authority of this Constitution. Limited government with three organs performing designated functions is envisaged. In the Proclamation it was said the President “shall exercise all the Executive and Legislative powers of the Republic” “till such time as Constitution is framed” and who will do all other things that may be necessary to give to the people of Bangladesh an orderly and just Government.

Hence separation of powers emerge as a necessary corollary of designated functions;

(c) Supreme Law of the Republic. That points to supremacy of the Constitution because;

(d) any law is void to the extent of inconsistency with the Supreme Law (i.e. the Constitution) which therefore contemplates judiciary;

(e) Supreme Court with plenary judicial power for maintenance of the supremacy of the Constitution.”[3]

Therefore, Justice Chowdhury clearly states that the principles of rule of law and separation of powers are envisaged in Article 7, along with the plenary judicial power of the Supreme Court as the guardian of the Constitution. He holds that the Constitution is the Supreme law of the Republic and further states that, as per Article 7 itself any law that is inconsistent with the Constitution is void to the extent of its inconsistency.[4] He also held that even though the fundamental principles are not enforceable they are still an essential element of the Constitution by stating that:

“Though the directive principles are not enforceable by any court, the principles therein laid down are nevertheless fundamental in the Governance of the country and it shall be the duty of the state to apply these principles in making laws. It is a protected Article [8] in our Constitution and the legislature cannot amend this Article without referendum. This alone shows that the executive cannot flout the directive principles. The endeavour of the Government must be to realise these aims and not to whittle them down.”[5]

Justice Shahabuddin Ahmed in concurrence with Justice Chowdhury held that the parliament only has a derivative constituent power and hence, the exercise of this derived power can be subject to judicial scrutiny. He held that, the impugned Amendment contravened with Chapter I of Part VI of the Constitution as it was in direct conflict with the unanimity of the Supreme Court thereby rendering it dysfunctional and contravening the basic structure of the Constitution with regard to the supremacy of the Constitution, and the separation and independence of the Judiciary. Justice Ahmed enumerated 8 fundamental aspects of the Constitution with formed its basic structure such as the supremacy of the Constitution, democracy, separation of powers, independence of Judiciary, etc. With regard to the structure of the Supreme Court, he held that:

“Like the permanent seats of the other two organs, namely the Executive and the Legislature, seat of the Supreme Court is in the capital of the Republic. This integrated Supreme Court is a part of the basic structure of the Constitution; it cannot be damaged directly or indirectly. Separation of the High Court Division from the Supreme Court is not permissible because it is an integral part of the Supreme Court, nor is it permissible to create a separate High Court under the Supreme Court as it will run counter to the unitary character of the State opening a door for ultimate disintegration of the State.”[6]

Justice Ahmed goes on to further elaborate the structural and functional problems that have arisen due to the impugned Amendment with regard to the functions of the newly created divisional benches and the power of Justices of the High Court Division.

Justice M.H. Rahman opined that Articles 27, 22, 31, 32, 44(1) and 102 of the Constitution provided for the furtherance of rule of law in the form of fundamental rights and also provided recourse in case they were arbitrarily intervened upon.[7]He further states that the impugned Amendment contradicted the provisions for the furtherance of rule of law by holding that:

“…the fundamental aims of our society is to secure the rule of Law for all citizens and in furtherance of that aim Part VI and other provisions were incorporated in the Constitution. Now by the Impugned amendment that structure of the rule of law has been badly impaired, and as a result the High Court Division has fallen into sixes and sevens; six at the scats of the permanent Benches and the seven at the permanent seat of the Supreme Court.”[8]

Therefore, Justice Rahman strongly opined that the rule of law as a basic pillar of the Constitution can never be disputed or disrupted even through constitutional amendments.

Justice A.T.M. Afzal, in his dissenting opinion rejected the notion of a ‘basic structure’ and stated that the limitation to the power of amendment is an inherent part of Article 7 of the Constitution, it functions as the benchmark and all Articles of the Constitution can be amended. He opined that the impugned Amendment did not interfere with the jurisdiction of the High Court Division and has not rendered the Constitution ineffectual. He also held that the Supreme Court as the guardians of the Constitution have the duty to safeguard the Constitution through the exercise of its power of judicial review at the instance of aggrieved persons with great restraint and after weighing the entailing consequences.[9]

 

The Masdar Hossain Case:

The case of Secretary Ministry of Finance v. Masdar Hossain intrinsically held that the separation of judiciary as a Fundamental Principle of State Policy as elaborated in Article 22 of the Constitution must be applied during legislative and policy making organs of the State and the fundamental principles are not meant to be treated as ornaments, but implemented through an organic process.[10] It was a writ petition filed by the members of the judiciary to enforce the principle of separation of the judiciary in order to ensure separate pay scales and recruitment of judicial service members. The honorable Appellate Division of the Supreme Court held that:

“Parliament cannot by law abolish the judicial service altogether and cannot amalgamate or unify the judicial service with other civil administrative service cadres or place them on par in respect of their conditions of service, salary and other benefits. That will be doing violence to the separation of powers as contained in the constitution.”[11]

The independence of the Judiciary is one of the basic pillars of the Constitution as enunciated by Articles 94(4) and 116A, and thus cannot be in any way be interfered with or curtailed.[12] The Appellate Division further held that in order to ensure proper furtherance of the provisions for the implementation of rule of law, the Supreme Court must exercise control and administer the judicial service and magistracy, and the opinion of the Supreme Court should hold priority over that of the Executive.[13] The Appellate Division went on to enumerate 12 directives for the implementation and enforcement of the basic feature of independence of the judiciary.[14] The first of the 12 Directives states the following:

“It is declared that the judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is a functionally and structurally distinct and separate service from the civil executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with the civil executive and administrative services.”[15]

The Court stressed the Direction for the creation of a separate Judicial Pay Commission for the assessment and review of the pay scale of the judicial service members, such form of financial independence would go a long way to ensure the independence and unilateral functioning of the judiciary.[16] Furthermore, the Court also directed the creation of a Judicial Service Commission which would have the independent and sole authority to recruit new members for the judicial service. Summarily, it brunt of the Courts ratio decidendi can be stated as:

“Members of the judicial service wield the judicial powers of the Republic. They cannot be placed on par with the civil administrative executive services in any manner. Their nomenclature of service must follow the language employed by the Constitution. Formation and composition of the judicial service and recruitment and appointment rules of the judicial service are to be made under Article 115 by the President. Service rules regarding posting. promotion, grant of leave, salary, remuneration and other privileges shall be made separately in each case from the civil administrative executive service Cadre rules under Article 133 or when applicable, under Article 136, and those separate rules shall, be consistent with Articles 116 and 116A.”[17]

Therefore, the Appellate Division held that the constitutional basis of the recruitment, pay, posting and management of the Judiciary is separate from that of the Executive and hence, one unilateral body cannot perform the abovementioned functions for the both the Executive and the Judiciary. More importantly, principally the Appellate Division held that for the unbiased and fair functioning of the Judiciary it is essential that the Judiciary is not the chained to the Executive through various administrative links.

 

Conclusion:

The aforementioned cases have drastically changed the constitutional landscape of Bangladesh. The 8th Amendment casenot only enforced the supremacy of the Constitution, but also provided fundamental outlines towards the interpretation of the constitution and the enforcement of its provisions. It held that the legislative does not have unfettered power to amend and alter the Constitution, thereby ensuring the furtherance of rule of law by enforcing the inherent check and balance mechanism that is aimed through the separation of powers. The Masdar Hossain Case goes a step further by providing policy directions to the government to ensure the independence of the judiciary and uphold the basic features of the Constitution, and also further the aims and objectives enunciated as the Fundamental Principles of State Policy.

[1] Anwar Hossain Chowdhury v. Bangladesh (1989) 41 DLR (AD) 165.

[2] Secretary Ministry of Finance v. Masdar Hossain (2000) BLD (AD) 104.

[3] Anwar Hossain Chowdhury v. Bangladesh (1989) 41 DLR (AD) 165, para. 58.

[4] Ibid, para. 166.

[5] Ibid, para. 53.

[6] Ibid, para. 400.

[7] Ibid, para. 429.

[8] Ibid, para. 496.

[9] Ibid, para. 526.

[10] Secretary Ministry of Finance v. Masdar Hossain (2000) BLD (AD) 104, para. 4.

[11] Ibid, para. 65.

[12] Ibid, para. 57.

[13] Ibid, para. 76.

[14] Ibid, para. 76.

[15] Ibid, para. 76(1).

[16] Ibid, para. 70.

[17] Ibid, para. 51.

Notes on the Interpretation of the Constitution

Introduction to Interpretation of the Constitution:

There two broad theories of constitutional interpretation: (a) Originalism (intentions of the original drafters) and (b) Pragmatism (Gap-filling).

 

However, there are numerous methods of interpretation, a few of them are as follows:

1. Textual:

Decision based on the actual words of the written law, if the meaning of the words is unambiguous. Since a law is a command, then it must mean what it meant to the lawgiver, and if the meaning of the words used in it have changed since it was issued, then textual analysis must be of the words as understood by the lawgiver, which for a constitution would be the understanding of the ratifying convention or, if that is unclear, of the drafters.

Latin maxims:

A verbis legis non est recedendum – From the words of the law there is not any departure.

Noscitur à sociis – Meaning of words may be ascertained by associated words.

2. Historical:

Decision based less on the actual words than on the understanding revealed by analysis of the history of the drafting and ratification of the law, for constitutions and statutes, sometimes called its legislative history, and for judicial edicts, the case history. A textual analysis for words whose meanings have changed therefore overlaps historical analysis.

Latin maxim:

Animus hominis est anima scripti – Intention is the soul of an instrument.

3. Functional (Structural):

Decision based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system.

Latin maxim:

Nemo aliquam partem recte intelligere potest antequam totum perlegit – No one can properly understand a part until he has read the whole.

4. Doctrinal:

Decision based on prevailing practices or opinions of legal professionals, mainly legislative, executive, or judicial precedents, according to the meta-doctrine of stare decisis, which treats the principles according to which court decisions have been made as not merely advisory but as normative.

Latin maxims:

Argumentum à simili valet in lege – An argument from a like case avails in law.

Consuetudo et communis assuetudo . . . interpretatur legem scriptam, si lex sit generalis – Custom and common usage . . . interpret the written law, if it be general.

Cursus curiæ est lex curiæ – The practice of the court is the law of the court.

Judiciis posterioribus fides est adhibenda – Credit is to be given to the latest decisions.

Judicata pro veritate accipitur – A thing adjudicated is received as true.

5. Prudential:

Decision based on factors external to the law or interests of the parties in the case, such as the convenience of overburdened officials, efficiency of governmental operations, avoidance of stimulating more cases, or response to political pressure. One such consideration, avoidance of disturbing a stable body of practices, is also the main motivation for the doctrinal method. It also includes such considerations as whether a case is “ripe” for decision, or whether lesser or administrative remedies have first been exhausted. 

Latin maxim:

Boni judicis est lites dirimere – The duty of a good judge is to prevent litigation.

6. Equitable (Ethical):

Decision based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide. Often resorted to in cases in which the facts were not adequately anticipated or provided for by the lawgivers. Some scholars put various balancing tests of interests and values in the prudential category, but it works better to distinguish between prudential as balancing the interests and values of the legal system from equitable as balancing the interests and values of the parties.

Latin maxim:

Æquitas est perfecta quædam ratio quæ jus scriptum interpretatur et emendat; nulla scriptura comprehensa, sed sola ratione consistens – Equity is a sort of perfect reason which interprets and amends written law; comprehended in no code, but consistent with reason alone.

7. Natural:

Decision based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur.

Latin maxims:

Jura naturæ sunt immutabilia – The laws of nature are unchangeable.

Impossibilium nulla obligatio est – There is no obligation to do impossible things.

Lex non cogit ad impossibilia – The law does not compel the impossible.

Lex neminem cogit ad vana seu inutilia peragenda – The law requires no one to do vain or useless things.

Legibus sumptis desinentibus, lege naturæ utendum est – Laws of the state failing, we must act by the law of nature.

 

Decisions of the Supreme Court of Bangladesh:

In order to give a purposive interpretation of the Constitution the Appellate Division took into consideration the character and origin of the Constitution to determine the purpose of judicial review under Article 102 of the Constitution and from such determination arrived at the meaning of the expression ‘person aggrieved’ in the said Article.[1] The Appellate Division held that when the spirit and purpose emerge clearly from the scheme or express provisions of the constitution, it will be contrary to the intention of the framers, for the AD to give a construction which is not in accordance with such spirit or purpose.[2]

The court cannot adopt an interpretation that is contrary to the intent and object of the Constitution over one which conforms to it.[3]

The Appellate Division in Kudrat-E-Elahi has held that no implications can be made while interpreting the written constitution.[4] However, it must be noted that shortly before Kudrat-E-Elahi the Appellate Division in Mujibur Rahmaninvoked the ‘Doctrine of Implied Powers’[5].[6] The decision of the Supreme Court in Anwar Hossain Chowdhury was based on implications.[7]

The Supreme Court has held that the intention of the framers are primarily expressed through the language that is employed and hence, at the first instance attempt should be made to understand the intention from the words used,[8] and thereafter from the whole of the enactment.[9] A clause must not be interpreted in isolation and must be construed as part of a unified whole.Every word must be given effect to and no word; as a general rule, should be rendered meaningless or inoperative.[10]The court must lean in favour of a construction which will render every word operative rather than that which makes some words idle or nugatory.[11] If the language of the Constitution is not only plain, but admits only one meaning, the language declares the intention,[12] even if the result is harsh.[13]


[1] Dr. Mohiuddin Farooque v. Bangladesh, (1997) 49 DLR (AD) 1, para 40-48.

[2] Dr. Mohiuddin Farooque v. Bangladesh, (1997) 49 DLR (AD) 1.

[3] Aftabuddin v. Bangladesh, (1996) 48 DLR 1, 13.

[4] Kudrat-E-Elahi v. Bangladesh, (1992) 44 DLR (AD) 319, 351.

[5] Implied Powers are which can reasonably be assumed to flow from express powers, though not explicitly mentioned in the Constitution. In other words, implied powers are powers that are not enumerated but which nonetheless exist because they are needed to carry out an express power.

[6] Mujibur Rahman v. Bangladesh, (1992) 44 DLR (AD) 111.

[7] Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1.

[8] Mujibur Rahman v. Bangladesh, (1992) 44 DLR (AD) 111; Aftabuddin v. Bangladesh, (1996) 48 DLR 1; Mahbooduddin Ahmed v. Bangladesh, (1998) 50 DLR 417, 423.

[9] Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1; Reference by President, (1957) 9 DLR 178.

[10] Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1; Begum Shamsunnahar v. Speaker, (1965) 17 DLR (SC) 21.

[11] Reference by President, (1957) 9 DLR 178.

[12] Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1.

[13] Halima Khatun v. Bangladesh, (1978) 30 DLR (AD) 207.

Statement of Facts leading up to the Protests against the BRAC University Administration in August 2017

Following is the statement which was submitted to the Inquiry Committee detailing the facts from 12th February 2017 to 30th July 2017; ultimately leading to the protests against the BRAC University Administration, based on which the Inquiry Committee recommended inter alia the Registrar’s resignation and that the confirmation of my lectureship should be based solely on the assessment of my academic research, teaching evaluation, service to university, community service, and self-development:

N.B.: Every statement in the following paragraphs is corroborated by concrete evidence which will be provided as and when necessary.

1. I had participated in the Certificate in Higher Education Teaching (CHET) Programme conducted by the Professional Development Centre (PDC), BRAC University in Fall 2016. The modules that were provided to the participants at the beginning of the course in Fall 2016 enunciated the requirements for the completion of the course; which were attending 12 sessions, doing all the homework, organising the requisite class observations, and writing an essay. As per the curriculum, we had completed all the requirements except the essay and a couple of class observations by the end of Fall 2016. The essay was due to be submitted in Spring 2017 and a couple of class observations were also supposed to be organised in the same term.

2. Thereafter, on 12th January 2017, the PDC organised a Discussion Session at the GDLN Centre, BRAC University for the faculty members who were participating in the CHET Programme. At the session, it was announced that a new requirement of submitting all the lesson plans of a particular course is being added to the list of requirements to complete the CHET Programme. Thereafter, during the question-answer session, I raised the question that the sudden addition of a new requirement is quite burdensome especially for a faculty member who teaches four different courses, especially those faculty members who individually teach each of the courses (i.e. courses which are only taught by one particular faculty member). This question led to a quite an academic exchange of statements on the issue between me and Lady Syeda Sarwat Abed, Director of BRAC Institute of Languages (BIL). Thereafter, the session ended.

3. Then, on 26th January 2017, I received an email from Mr Muhammad Foysal Mubarak, Lecturer, PDC to ‘ensure my presence’ at a meeting regarding the CHET requirements for Spring 2017. The wording of the email was unquestionably rude and was a precursor to the hostility that was shown towards me at the subsequent meetings. The meeting was attended by Lady Syeda Sarwat Abed; Dr Ansar Ahmed, the new Director of PDC; Ms Sabrina Syed, Lecturer, PDC; and Mr Muhammad Foysal Mubarak and it was held in the small conference room at BIL. At the meeting, initially, the participants were not clear as to why they had called me. Thereafter, upon clarification by Ms Sabrina Syed, I respectfully raised the issue that retrospectively adding new requirements to the CHET Programme was unfair especially considering the fact that the Programme was close to completion for all of us and I stated that on principle grounds I would not do the lesson plans. In reply, I was told that “then, you can’t work here,” and a veiled threat was issued that I would not be confirmed for arguing for the issue, i.e. the fairness of the matter and legitimate expectation. An excerpt of the conversation is as follows:

“Lady Abed: Farhaan, how long have you been here?

Farhaan Ahmed: I have been connected with BRAC or–

Lady Abed: –No, no, no–

Farhaan Ahmed: –As a Lecturer? 7, 8 months.  But I was a student here

Lady Abed:–I know–

Farhaan Ahmed: –and I also worked as a resear–

Lady Abed: You are still not confirmed? You are not confirmed?

Farhaan Ahmed: No.”

4. I did not in any way disrespect Lady Syeda Sarwat Abed nor did I behave in a manner that was unprofessional. Questioning a decision or a measure is undoubtedly within the premise of Academic Freedom as espoused in the Faculty Code of Conduct.

5. On 20th March 2017, I attended a second meeting with the PDC in the Conference Room on the 5th Floor of UB1. At that meeting, the PDC was represented by Dr Ansar Ahmed, Ms Sabrina Syed, and Mr Muhammad Foysal Mubarak. The meeting was also attended by Prof K Shamsuddin Mahmood, Dean, School of Law and Ms Khandker Tasnuva Haque, Lecturer, School of Law. At the meeting, I reiterated the questionable nature of the imposition of the new requirements and my fellow colleague Ms Khandker Tasnuva Haque also raised the same issue since she started the CHET Programme in Summer 2016 and even after two and a half terms the Programme had still not ended due to the addition of new requirements. In the meeting, we were shouted at and called ‘thick headed’, which cannot be considered professional behaviour in any civilised environment.

6. Thereafter, upon being given an ultimatum, we agreed to fulfil the new requirements and we accordingly fulfilled them. Even though, on the day of the awarding the certificates for the CHET Programme I had submitted more, if not equal, number of lesson plans as Ms Tasnuva Haque, I was not awarded the certificate but Ms Tasnuva Haque was, and furthermore, I was told by many participants that my name was on the awardees list but PDC did not communicate with me regarding the matter. Subsequently, after completion of the requirement and upon not being awarded the certificate, I emailed the PDC a couple of times; on 30th April 2017 and 30th May 2017, regarding the completion of all the requirements and hence the CHET Programme but both my emails were ignored.

7. In the meantime, the moot court team of the School of Law that I had been coaching qualified for the International Rounds of the Price Media Law Moot Court Competition 2016-17, which was held at the University of Oxford, United Kingdom. We flew to London on 1st April 2017 and the competition began on 3rd April 2017.

8. To apply for the visa to travel to the United Kingdom I required a No Objection Certificate (NOC) as is the case for all employees. My NOC was unnecessarily delayed even though I had applied for it well ahead of time. Subsequently, on the morning of 22nd February 2017, a day before the date of our visa application submission, I was informed by my Dean that I would have to draft an apology and email it to Lady Syeda Sarwat Abed in order to be issued the NOC. I accordingly drafted an apology and emailed it to Lady Syeda Sarwat Abed and soon after in the afternoon of the same day the NOC was duly issued and delivered to the School of Law.

9. My ordeal was far from over, on 28th March 2017, a mere four days before the moot court team was scheduled to leave for the competition, in reply to my email seeking an extension of the deadline for the submission of the lesson plans, Dr Ansar Ahmed informed me that I cannot travel with the team as their coach since as per the University’s policy I am ineligible to use the University’s fund for such a purpose since I am a non-confirmed faculty, even though the Vice Chancellor had personally approved the entire team’s budget for the travel, including mine. There was no such University policy in reality that could legitimately bar me from coaching a moot court team. Thereafter, I was forced to email the Registrar regarding the matter explaining the situation and the appropriate rules and regulations regarding the matter. Subsequently, on the evening of 28th March 2017, I was requested to accompany Ms Shadia Alam, Senior Manager, Human Resource Department (HRD) to meet Dr Ansar Ahmed. At the meeting I was told that he could stop my travel if he wanted to but he would not do so, the statement seemed quite peculiar to me.

10. To make it worse, on the evening of Thursday, 30th March 2017, a mere two days before our flight to London, I received a call informing me that the Registrar of BRAC University had called Dr Tureen Afroz, Chairperson, Faculty of Law, East West University to ask her whether she would be interested to travel with the University’s moot court team to Oxford. Needless to say that she did not accept the offer. I could not believe what I had heard; after spending more than six months in training the team through the qualifying rounds and investing considerable effort, I felt betrayed to the highest degree. I did not know for sure whether I would be accompanying the team until after I had boarded the flight to London. This could not be anything other than an act based on pure malice. I am an experienced Mooter and coach, I was trained by Dr Tureen Afroz herself, I am confident that there was no doubt in my capabilities as a coach a mere two days before the competition yet such capricious actions were undertaken against me and in turn against the interests of the University. The Registrar, later in a meeting stated on that, he did call Dr Afroz to request her to travel with the team.

11. On 10th July 2017, I had completed one year as a Lecturer at the School of Law. Generally, the HRD emails the relevant forms to faculty members two to three weeks ahead of the completion of their one year of service and requests them to submit the completed forms as soon as possible. At no point in time had I received such an email from the HRD, I had to request a copy of the forms from one of my colleagues who had recently been confirmed and had received the email from the HRD to apply for confirmation. On 18th July 2017, I submitted the requisite forms for confirmation of my service to the HRD since I had successfully completed one year of service at BRAC University. Thereafter, on Wednesday, 26th July 2017, all of a sudden I was issued with a Letter stating that my period of probation would be extended till 31st August 2017 and thereafter my position at BRAC University will be terminated. No reason was provided as to why I had not been confirmed as a lecturer or why the university administration had all of a sudden decided to terminate my employment. The fact that Lady Syeda Sarwat Abed’s displeasure is the actual and only reason for my termination was clearly been stated to me by Mr Monojit Kumar Ojha, Director of Finance, BRAC University and Maj Gen Muhammad Sahool Afzal (retd), Registrar, BRAC University during a meeting on the evening of 26th July 2017. In the aforesaid meeting, I was again demeaned and cursed by the Director of Finance. He also accused me of sending too many emails and stated the fact that he did not reply to any of my emails because I am a ‘byaddop’. Such statements are clearly unprofessional and founded on bias.

12. Subsequently, on the morning of Thursday, 27th July 2017, I submitted a Grievance Letter to Prof Syed Saad Andaleeb, Vice Chancellor, BRAC University as per the Code of Conduct for Faculty, enunciating the aforementioned abuses and mistreatments along with conclusive evidence to prove each of them.

13. On the very next working day, i.e. Sunday, 30th July 2017, rather than forming the Faculty Grievance Resolution Committee (FGRC) as per the Code of Conduct for Faculty which the Vice Chancellor is duty bound to do, there was an attempt to immediately terminate my employment. At 2:31 pm, I received a message from Ms Shadia Alam of HRD which stated that “Dear Farhaan, Registrar sir has asked you to come and meet him now. Regards Shadia.” Thereafter, I received a second message stating that “Dear Farhaan, Since you are taking class please come and meet Registrar sir after your class is over today. Regards Shadia.”

14. Since I was taking an exam that day my class ended earlier and at around 3:10 pm, I went to meet the Registrar and he told me to go to the HRD. As per his instruction, I went to the HRD where Ms Momena Begum, Senior HR Officer, HRD along with Mr Mahi Uddin, Assistant Registrar and Mr Jabed Rasel, Senior Officer, Office of Co-curricular Activities (OCA) met with me in the room in front the HRD. Ms Momena Begum tried to hand over a cheque and certain documents, among them one stated that I was to be terminated from BRAC University immediately. Since I had formally submitted a Grievance Letter against the Administration, I refused to accept the documents until the Faculty Grievance Resolution Committee (FGRC) gave its final decision in accordance with due process. Thereafter, the three of them told me that even if I do not accept the documents I must hand over my BRAC University ID card. I again refused to do so based on the pending investigation based on my Grievance Letter against the University Administration. Thereafter, The Registrar came into the room, cursed me and tried to forcefully take away my ID card. The Registrar made Mr Mahi Uddin and Mr Javed Rasel hold each of my arms and then again tried to forcefully take away my ID card. While I was being assaulted, the Registrar pulled at my ID card with such great force that it tore away the pocket of the Panjabi that I was wearing and I was held down so violently that I had bruises all over my arms and even my chest. At one point, the Registrar left the room ordering his staff to implement his directive. I kept resisting their assault and when I broke free of their clutches I tried to leave the room but they refused to let me out and locked the door. At that point in time few of the guards and the floor-in-charge also tried to forcefully hold me back. I kept shouting and trying to get out of the room. After quite some time of shouting and resisting the assault, I managed to get out of the room when a few students saw what was happening to me from outside the door. When I came out of the room I found that the door of the 5th floor of UB 6 (Registrar’s floor) was locked. I kept shouting to call for attention and continued to resist attempts to hold me back. Finally, after considerable effort, I managed to make my way to the ground floor with my torn Panjabi and bruises on my arms and chest. Upon reaching the ground floor I immediately called the Officer in Charge of Banani Police Station and they asked me to come to them to file a complaint.

15. Soon after that, I went straight to my office at the School of Law to collect my belongings and that is when the students saw my helpless condition. Upon seeing me, their faculty member and a School of Law alumnus, in such a harrowing condition the students immediately moved to protest the assault at the ground floor of UB 6. The students initially demanded that the Registrar must apologise for such abusive treatment of a faculty member and that the University Administration must amend the gross unfairness of my wrongful termination which lacked any professional ground or basis. Thereafter, the students continued to protest demanding for justice for almost an entire week.