ALIN Legislative News
From Dhaka University Faculty of Law
Social Security, Freedom of Press, Criminal justice,
Child Right Jurisdiction:
Bangladesh
1. The People’s Republic of Bangladesh’s Parliament Enacts the Universal
Pension Management Act, 2023 (Act no. 04 of 2023).
In January 2023, the
Parliament of Bangladesh passed the Universal Pension Management Act, 2023
(hereinafter ‘the act’), which, axiomatically, is a revolutionary step in
ensuring the “social security” of the citizenry of Bangladesh and also
fulfilled the constitutional mandate in this regard. In the preamble of the
act, the intention of our Parliament in ensuring “social security” for the
vulnerable section of the general populace (for example, the growing elderly
population) is clear. Under section 4 of the Act, a “National Pension
Authority” is established to ensure the smooth functioning of the act.
Section 14 is the crux of the
act as it lays down the nitty-gritty as to the pre-requisites of “Universal
Pension Management”. The general age limit to subscribe to the “Universal
Pension Scheme” is 18-50 with certain exceptions in this regard (s 14(1)(a)).
To be eligible to receive a monthly pension, a subscriber must pay the
subscription fee continuously for at least 10 years (s 14(1)(b)). If the
subscriber dies before the payment of the subscription fee for the
abovementioned 10 years, then their nominee will be entitled to the amount
already deposited and the profits (s 14(1)(l)).
The subscriber will start
getting the pension after s/he attains the age of 60 years (s 14(1)(b)).
Bangladeshi expatriates are also eligible to subscribe to the scheme (s
14(1)(c)). The subscription to the scheme is, at the moment, voluntary, but the
government may make it mandatory by issuing a notification in the government
gazette in this regard (s 14(1)(d)). Every subscriber is entitled to a separate
and independent account, and there is no need to open a new account in case a
subscriber changes their job (s 14(1)(e), (f)). The authority will generally
determine the monthly subscription fee (s 14(1)(g)). Pensioners will receive
their pension benefits till death, and the nominee of the pensioner will be
entitled to the same benefit if the pensioner dies before the age of 75 years
for the remaining period (up to the age of 75 years of the original pensioner)
(s 14(1)(j), (k)).
For taxation purposes, the sum
contributed as a subscription fee will be treated as an investment and eligible
for tax relief, while the monthly pension payment is exempt from income tax (s
14(1)(n)). The government may also donate money to the pension fund for
insolvent subscribers or citizens who are below the lower income limit (s
14(1)(o)).
Under the proviso to section
14(2), however, until the government releases a notification in the official
gazette, employees working in government, semi-government, or autonomous
institutions shall be exempt from the act’s coverage. The fact that the
aforementioned employees are normally eligible for pension benefits under
various other laws in this regard may be the rationale for introducing this
clause.
2. The HCD ensures “Freedom of Press”, which is a Prerequisite for our
Democratic Society in The State v Anti-Corruption Commission (17 SCOB [2023]
HCD 40). (Judgment dated 21/6/22).
In the present case, questions
about whether the court could punish journalists for publishing false,
fabricated, and defamatory news reports about the Anti-Corruption Commission
and whether journalists were protected by the law when it came to withholding
the information about their sources of information were brought up in the
context of the current suo motu rule. According to the High Court Division,
journalists and the media are allowed to publish news articles about
corruption. If an individual is offended by the article, they may file a
complaint with the Press Council for relief. The High Court Division also determined
that laws have provided protection to journalists in not disclosing the sources
of information after analysing various provisions of laws, including the
Constitution, the Press Council Act, 1974, and the Disclosure of Public
Interest Information (Protection) Act, 2011 etc.
While delineating the scope of
“freedom of press” under Article 39 of our Constitution, the court observed:
[I]nvestigative journalism is
the necessary corollary of such freedom. Investigation by a journalist includes
research, gathering information from different sources, observation and due
diligence. In doing so, the journalists act as the fourth pillar of democracy
and consequently, serve the nation. They are the part and parcel of a
democratic process. In a modern world, right to information is being treated as
one of the pre-conditions for expression of opinion. Journalists act as helping
hands for ensuring rule of law and democracy which have been recognised as the
basic structure of the Constitution. (Extract from para 38 of the judgment, pp
51-2)
Furthermore, the court also
observed that:
Under the aforesaid
discussions, our considered view is that the media and the journalists are
constitutionally and legally authorised to publish news reports on corruption
and corrupted practices along with money laundering if any including other
important news on the matters of public interest. (Extract from para 38 of the
judgment, p 52)
3.
The
HCD Directs to Conduct a Sentencing Hearing for the Accused Convict in The
State v Md Lavlu Death Reference No.75 of 2017 (Judgment dated 27th and 28th
February 2023).
The
fairness in the pre-trial and post-trial phases is part of the fair trial
concept (Ridwanul Hoque, ‘Criminal Law and the Constitution: The Relationship
Revisited’ (2007) Spl Issue: Bangladesh Journal of Law 45, 58). Bangladesh
previously had provisions on the sentencing hearing from 1978 to 1982 under
chapters XX and XXIII of the Code of Criminal Procedure, 1898 (hereinafter
‘CrPC’) (H M F Bari, ‘An Appraisal of Sentencing in Bangladesh: Between
Conviction and Punishment’ (2014) 14 (1&2) Bangladesh Journal of Law 89,
91). Additionally, Bangladesh’s sentencing guidelines are varied. (Muhammad
Mahbubur Rahman, Criminal Sentencing in Bangladesh: From Colonial Legacies to
Modernity (Brill Asian Law Series vol 5, Bill Nijhoff 2017).
In
this context, our HCD in 2023 pronounced the milestone judgment of The State v
Md Lavlu, which provides for a sentencing hearing after the conclusion of final
arguments by the parties and the judge of the trial has decided to convict the
accused “for offences punishable with death or life imprisonment or
imprisonment for a term of years” by interpreting section 367(5) of CrPC (para
5.23, pp 72-4). The HCD directed all the tribunals and courts in our country to
hold sentencing hearings for the accused before delivering the judgment in the
manner prescribed (para 5.27, pp 81-3).
In The
State v Md Lavlu, the case concerned the rape of a minor girl by the accused.
The court, after providing a scope of sentencing hearing for both parties,
commuted the death sentence to a sentence of life imprisonment (para 5.26,
p79).
As
such, this court has ushered a new pathway in the criminal justice system of
Bangladesh by providing sentencing hearings in the lower courts.
4.
The
State v Ministry of Law, Justice and Parliamentary Affairs, Government of
Bangladesh, represented by its Secretary, Bangladesh Secretariat, Ramna, Dhaka
Suo-Moto Rule No. 07 of 2019 (Judgment Dated 11/3/20).
In
this instant suo moto rule, the court declared the trial and conviction of
minors under the Mobile Court Act, 2009, illegal (Para 4.19, pp 23-4). The
context of the rule was the conviction and sentence orders passed by various
mobile courts in Bangladesh run by executive magistrates under the Mobile Court
Act, 2009; 121 children have been detained in child development centres in
Tongi, Gazipur, and Pooler Hat, Jashore. This information was reported in the
Daily Prothom Alo on October 31, 2019.
The
court held that:
Not
only that, the said children have also been deprived of their fundamental
rights to have a public trial by an independent and impartial Court or tribunal
as guaranteed by sub-article (3) of Article 35 of the Constitution. The very
term “executive”, as used before the term ‘Magistrate’ in the cases concerned,
suggests that the magistrates concerned are part of executive organ of the
State. Given that the State itself is the prosecutor, they were not independent
and/or impartial individuals, not to speak of Court or Tribunal. (Para 4.11, pp
17-18).
The
court reasoned that it had not found anything in the Mobile Court Act, 2009
that gave executive magistrates the authority to conduct a minor accused’s
trial. Instead, because the Children Act, 2013 is a special law, its provisions
will take precedence over any inconsistencies with the Mobile Court Act, 2009.
Since the aforementioned Children Act, 2013, has established particular
procedures for dealing with and trying minors under the age of 18, Mobile Court
Act cannot grant executive magistrates the authority to even deal with the
stated children, let alone handle their trial. (Para 4.13, p 19)
Author:
Prof. Dr Shima Zaman
Topic:
Social Security, Freedom of Press, Criminal justice, Child Right
Jurisdiction:
Bangladesh
Date:
July 31, 2023