 |
| Md Kowshik Shahriar |
Case
Fact
On
December 26, 2014, a four-year-old boy, Jihad, fell inside a 16 inches
unprotected well shaft in Shahjahanpur Railway Colony, leaving it uncovered and
unattended by Bangladesh Railway contractors.
The
Fire Service and Civil Defence lacked expertise and technology for such a
situation.[1] A
malfunctioning camera and a 10-hour "showdown" ensued, but after
halting the operation, Fire service called off the whole rescue operation,
stating that there was no trace of the boy inside the well.[2] Following
this, an amateur local group
subsequently pulled the body of an already deceased Jihad from the shaft using
a homemade detection device.
The
CCB Foundation filed a writ petition (more specifically, PIL) claiming that the
respondents' failure to intervene in saving Jihad violated his fundamental
rights under articles 31, 32, and 36 of the Bangladesh constitution.The
respondent submitted an affidavit defending themselves, claiming that incidents
were rare, their personnel were unfamiliar, and they lacked high-tech cameras.
They maintained that despite their shortcomings, they did their best and were
therefore not negligent. A third-party contractor who was relieved allegedly
left the shaft exposed, according to Bangladesh Railway.
The
court addressed issues such as whether the CCB Foundation had a locus standi
for filing the petition, whether Jihad's death was due to respondents'
negligence, whether compensation claims could be made against public authority
for breach of statutory/ constitutional duty under writ jurisdiction, and how
to determine compensation amount.[3]
Lastly, Jihad's family was ordered to receive BDT 3,000,000 from the respondent
as compensation.
Reasoning
/Arguments
Firstly,
In the matter of whether the petitioner had the locus standi, respondents argued PILs are unmaintainable due to
AD's judgement in National Board of
Revenue v Abu Sayeed Khan[4],
requiring every PIL to meet 14 specific criteria. The judges affirmed that the
CCB foundation, a non-profit and charitable organization, met the conditions
for being recognized as 'any person aggrieved' under Article 102 of the
Constitution, particularly being a PIL
Secondly,
In the greater inspection of whether the authorities were negligent or not. The
court examined the negligence of multiple authorities, finding the civil
defense negligent for not investing in high-tech cameras for rescues in narrow
locations despite significant investment. The fire service and civil defense
denied expertise and uncertainty, but their actions were insufficient to
relieve their public duties. The Railway Authority's negligence was proven
using vicarious liability and the
doctrine "Res Ipsa Loquitur,"
which states that the object speaks for itself. This approach was applied in
this instance in that there was no reason why the boy fell into the pipe if
there had been no negligence[5]. The
court held the authorities liable for the boy's fall into a pipe.
Thirdly,
the third issue was whether it was possible to file a claim for damages against
any public official. The court noted
that as Article 146 of the Bangladesh Constitution does not distinguish between
sovereign and non-sovereign acts, it is not prohibited by the Constitution to
seek compensation from any public authority.[6]
Fourthly,
the court determined that the High Court Division has the discretion to
determine the compensation amount for fundamental rights infringements. The
court fixed BDT 20 lakh compensation, with both respondents each paying BDT 10 lakh.
Critical
Analysis
I
have both positive and negative evaluations for the significance of this case’s
judgement.
The
“CCB Foundation v Government of
Bangladesh”, also known as the Jihad case, is the first public law
compensation case in Bangladesh, establishing vicarious liability for state
machinery for violating citizens' fundamental rights through interpretation of
Article 102 of the Constitution.[7] The
judgement expands the liability of government authorities and now the public to
seek compensation for tortious liability cases such as wrongful confinement and
death due to negligence, which are common in Bangladesh.
The
case also transcends several contemporary judicial precedents concerning locus
standi and compensation for violations of fundamental rights,.For instances,
the respondents was argued that PILs are unmaintainable if they don't align
with AD's judgement in National Board of
Revenue v Abu Sayeed Khan[8],
which mandates 14 specific maintenance criteria. So by not following this , the
court has set new progressive precedents for new elaborative room in filing
PIL. in Another one , establishing
Constitutional tort instances . The judgement in Bangladesh Beverage Case[9], Catherine Masud v Md. Kash Miah[10],
and ZI Khan Panna v Bangladesh[11]
were already pronounced, making three other prominent judgements on tort law
compensation readily available by the time the judgement was released.[12] So
the court follows the similar path .
On
the other hand , If we try to interpret it —as a "lost opportunity"
rather than something negative.
In
this case , a great precedent for setting uniform manner behind the
determination of the quantum of compensation for public law tort claims was
lost as a result of the Appellate Division's impassive decision during the
appeal and even the High Court Division's progressive decision regarding
Jihad's family's compensation, which was not sufficiently justified as per the
case's merit of a strong precedent for public law tort claims, resulting in a
missed opportunity. [13] But
this expansionist interpretation may be countered by reiterating Justice Naima
Haider’s cautious plea in Catherine Masud
v Md. Kash Miah[14] case,
“ although the final quantum of the compensation would usually be
determined based on the unique facts and circumstances of each case.”
So
as the determination of quantum of compensation as a matter of subjective
evaluation of every single case , it might not be determined in a uniformed
way.
In
summary, whereas CCB Foundation v. Bangladesh represents a major advancement in
acknowledging state accountability through constitutional torts and increased
access to PILs, it also represents a lost chance to create a standardized
framework for public law compensation.
Although the ruling is conservative in its application of doctrine, it
is progressive in spirit, allowing future jurisprudence to improve its
standards.
[1] The
Case Summary , “CCB Foundation v
Bangladesh (2016)” , (The Case
Summary,December 8, 2024) https://thecasesummary.com/ccb-foundation-v-bangladesh-en/
[2] Star Online
Report , “HC summons Railway DG for not paying compensation to Jihad's family”
, (The Daily Star,July 3, 2018)
https://www.thedailystar.net/city/high-court-summons-bangladesh-railway-director-general-for-not-paying-compensation-jihad-family-1599310
[3] See also,5
CLR (HCD) (2017) CCB Foundation V Government of Bangladesh (Farah Mahbub, J) https://www.blast.org.bd/content/judgement/Public-Law-Compen-judgment-CCBF-vs-BD.pdf
[4] (2013) 18 BLC 116 (AD
[5] Sadman
Rizwan Apurbo, “Development of Tort Law in Bangladesh and Recent Case
Decisions” , (Bangladesh Law Digest,May 23, 2018) https://bdlawdigest.org/tort-law-in-bangladesh.html
[6] See Also ,
Farhana Helal Mehtab,Ali Mashraf, “Decoding Children’s Charity Bangladesh (CCB)
Foundation v Government of Bangladesh: The First Ever Public Law Compensation
Case in Bangladesh and the Way Forward” , (BiLD Law Journal 4(2) https://bildbd.com/index.php/blj/article/download/44/42/42
[7] Farhana Helal Mehtab,Ali Mashraf, “Decoding Children’s
Charity Bangladesh (CCB) Foundation v Government of Bangladesh: The First Ever
Public Law Compensation Case in Bangladesh and the Way Forward” , (BiLD Law
Journal 4(2) https://bildbd.com/index.php/blj/article/download/44/42/42
[8] (2013) 18 BLC 116 (AD
[9] Case
Citation,(2017) 69 DLR 196 (AD)
[10] (2015) 67 DLR 523
[11] [2017] 37 BLD 271 (HCD)
[12] ibd
[13] See also , ibd [7]
[14] (2015) 67 DLR
523