Class Test -4

Legal System of Bangladesh

                     Bangladesh University of Professionals
Impact of Corona Pandemic in law and order:
Bangladesh perspective

Impact on accessing justice:

A MEANINGFUL access to justice has always been a cornerstone of the rule of law. The idea of this is
that simply having access to justice is not enough; it must be access with substance. That is to say, that
people must be allowed to bring their grievances, within a system, to a forum that is neutral and is the
arbiter of disputes. Access in itself is also to be subject to debate. The central idea of access to justice is,
therefore, that such access must be equally provided for all members of the system. Failing to provide
equal access to all is failure of the principle.

Since the general holiday that began on March 26, Bangladesh’s Supreme Court (both divisions) has shut
down. The justices along with the many staff members of the Supreme Court have been away from their
functions. Similarly, advocates have been absent from the grand hallways of the court premises.
However, the most adverse impact of the decision to shut down the court is felt not by the justices nor
by the advocates who depend on the court for their livelihood, but by those who seek to move Supreme
Court in hopes of having due justice rendered to them. To respond to this adversity, on April 23, the
Supreme Court announced that it would reopen in a limited capacity to ensure that people were able to
approach the court with their most urgent concerns, keeping in mind social distancing policies. In
addition to this step, the courts also announced a new initiative to allow for certain urgent hearings to
be also heard via an online forum. Necessity being the mother of all invention. It improves access to
justice and does so in a manner that more than meets the current social distancing requirements. With
rumors of a new act, currently under process with the law ministry, it only benefits the people to have
this measure in place. With these announcements, the courts were once again providing the ever-
important access to their forum. However, this victory was somewhat short-lived. Soon after, on April
25, pursuant to a full court meeting, the Supreme Court once again limited access to its forum, shutting
down all forms of access barring the opportunities online.

Contract Breaking Issues:

As the virus spreads, it is believed that it will have a far-reaching impact on the global economy and
international trade. Companies will need to be prepared for the pandemic and circumstances where the
outbreak brings an adverse impact on business generally and, more importantly, on the performance of
commercial contracts. In particular, companies should consider whether they are entitled to
invoke force majeure under the contracts, and thereby defer the performance of their contractual
obligations without penalty.

Although, failure to perform the obligations might, prima facie, appear to be a breach of contract, they
can be protected by the doctrine of force majeure. The doctrine of force majeure refers to
unforeseeable circumstances or acts of God that prevent someone from performing a contract. When a
force majeure situation arises, the non-performing party is either waived from its obligations or is
granted extended time to complete its part of the contractual obligations. This doctrine is not a
statutory concept but is rather contained as a general contractual provision which parties have been
agreeing by way of convention.

The pandemic is clearly an unforeseeable circumstance and is out of the contractual parties' control.
However, whether any party will be able to rely on force majeure will depend on the definition provided
by the parties in their contract. If the parties have a limited and closed list, then it will depend upon the
events specified in the contract.

It is important for parties to take note of the fact that force majeure clauses cannot be relied upon if
there is also some other reason why performance of the contractual obligations is not achievable.
Furthermore, if performance is prevented by novel coronavirus, then alternative methods of
performance should be considered. If there are alternative steps, then force majeure shall not apply.
Additionally, where reliance on a force majeure event is likely to have a significant impact on the other
party to the contract, it is important to consider what steps can be taken to limit the impact of
coronavirus. A wrongful declaration of force majeure can expose a party to the risk of breaching its
contract. Notice requirements, as laid down in the contract, have to be duly complied with.

In the event a contract does not provide for a force majeure provision or a particular contract's force
majeure provision does not cover coronavirus, parties can always resort to amicable discussions
between them to reach a mutually beneficial solution.

However, while contractual obligations are negotiable, companies will find themselves in an extremely
difficult position with their employees. Many companies in Bangladesh have announced indefinite
closure while some have adopted a work-from-home policy. This may be practicable for some
businesses but it is certainly not a viable solution for all companies.

Nevertheless, social distancing is being stressed as the best solution to containing the coronavirus and
while companies may not be able to generate revenues for a certain period of time, they will be bound
by the obligations imposed upon them by the Bangladesh Labor Act 2006 (BLA) and the Bangladesh
Labor Rules 2015 (BLR).
Under English Common Law, the applicability of force majeure is purely contractual. It is understood
that a generalized doctrine of force majeure does not exist and it is up to the parties to define the events
as to what constitutes force majeure events and the parties' rights and obligations upon the occurrence
of such events. In Bangladesh, the position is similar as there is no direct statute that directly governs
the doctrine of force majeure  or gives effect to it in express terms. Since the doctrine of force
majeure does not have any direct statutory basis under the laws of Bangladesh, its reliance is based
primarily on the parties' agreement and the respective terms of the contract entered into between the
contracting parties. A typical force majeure clause would read as follows:  

"Notwithstanding the provisions of this Agreement, the Parties agree that this Agreement shall not be
terminated for default, if any delay in performance or other failure to perform any obligation under this
Agreement is the result of an event of Force Majeure. If a Force Majeure situation does arise, the
defaulting Party shall notify the other Party in writing, within 10 (ten) days of such occurrence, the
existence of such condition and the cause thereof. Unless otherwise directed by the innocent Party in
writing, the defaulting Party shall try and continue to perform its obligations under this Agreement as far
is reasonably practical and shall seek all reasonable alternative means for performance not prevented by
the Force Majeure event."

However, not all commercial contracts may contain a force majeure clause and, in today's situation of
COVID-19, parties may be in an uncertain position as to whether they can perform their respective
obligations under the contract in a timely manner or, if at all. It is therefore essential to understand
whether parties in Bangladesh can successfully claim a force majeure event or be relieved from their
respective responsibilities due to COVID-19 under the existing legal framework in Bangladesh.

All contracts, which are governed by Bangladeshi law, are regulated by the Contract Act 1872 (the "Act
of 1872"). The doctrine of frustration is enshrined in Section 56 of the Act of 1872 which provides that a
contract becomes void when it becomes impossible to perform or, by reason of some event, it becomes
unlawful after it was entered into. So, if the contract becomes impossible to perform for any reason
whatsoever, it shall be treated as void under the laws of Bangladesh, provided that the defaulting party
did not know, or with reasonable diligence, could not have known that the contract would be so
frustrated. The effect of a void contract, in simple terms, is that it cannot be enforced by law and the
parties are relieved from their respective obligations.

Lastly, it is important to mention that, in order to avoid any ambiguity on the subject, the Government
of different countries have already issued circulars clearly stating that COVID-19 is to be treated as
a force majeure event. For example, the Government of India has issued a notice on 19 February 2020
that "[a] doubt has arisen if the disruption of the supply chains due to spread of corona virus in China or
any other country will be covered by the Force Majeure Clause"  and  that COVID-19 "should be
considered as a case of natural calamity" meaning that force majeure clauses in contracts can be
invoked for such events. On the other hand, the China Council for the Promotion of International Trade,
a quasi-Governmental body, announced on 26 February 2020 that it had issued more than 1600 force
majeure certificates covering contracts worth tens of billions of yuan. It is also advisable that our
Government of Bangladesh should consider the current situation and also take appropriate steps in
defining this pandemic as a force majeure event, where applicable.

Introducing Virtual courts:

The right to protection of law and access to justice are fundamental rights, which are enshrined in the
Constitution of Bangladesh. However, the Covid-19 pandemic has, in effect, suspended the execution of
these fundamental rights. The direct effect of the pandemic has caused courts across Bangladesh to be
closed for the next few weeks (at least until April 25, 2020) with the result that the cases pending in
those courts have been adjourned until that time. This is rightly so since mass gatherings at the courts
will inevitably lead to the spread of the virus. As a result, to deal with this problem, courts all over the
world are increasingly conducting their cases through virtual courts using remote smart technology.

Honourable Chief Justice Syed Mahmud Hossain on April 26 at a full court meeting with the judges of
the Supreme Court decided to request the government to take necessary steps to issue an ordinance so
that the cases can be heard and disposed of through virtual court proceedings. Subsequently with
cordial response, the cabinet on May 5 approved an ordinance allowing the courts to do so. The Law
Ministry on May 9 published the gazette notification of the ordinance titled “The Usage of Information
and Technology in Court Ordinance-2020” following approval from the President.

This ordinance includes 5 sections. According to section 3 of the ordinance, “any court can serve orders,
judgments, holds trial, inquiry, appellate hearings, arguments, evidence placement after ensuring virtual
presence of justice seeking groups or their lawyers and eyewitnesses through audio, video or any
electronic medium.” Section 5 of this Ordinance is very effective and empowers the Supreme Court to
issue practice direction (special or general) from time to time to make this law effective for ends of
justice.

According to Article 107 of the Constitution, the Supreme Court can issue rule and guidelines to
subordinate courts. Article 107 (1) states that “Subject to any law made by Parliament the Supreme
Court may, with the approval of the President, make rules for regulating the practice and procedure of
each division of the Supreme Court and of any court subordinate to it.” Moreover, Article 111 of the
Constitution declares about the legal enforceability of the decision of the Supreme Court. The Article
reads as “the law declared by the Appellate Division shall be binding on the High Court Division and the
law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.”
However, the rules of the High Court Division still need to be amended to set up a virtual court. A five-
member committee, headed by senior justice of High Court Division Farah Mahbub, has already been
formed by Honorable Chief Justice in this regard. According to the Ordinance, there will be no legal
obstacles to use technologies in our judicial system after the committee will prepare a set of rules.

In Bangladesh, there are huge backlog of cases in higher as well as subordinate judiciary due to lack of
facilities, court rooms, sufficient Judges and Magistrates and albeit of digitalization of the judiciary.
Though we have no preparation to adopt virtual courts as well as e-Judiciary, This Ordinance will
certainly introduce a new era and revolution to achieve the goals of e-Judiciary.

While efforts of the Supreme Court in trying to uphold its duties in such difficult times is applaudable,
the fact that this particular set of decisions has and will lead to the alienation and the unequal treatment
of advocates and clients across the board is an inconvenient truth. As we stand today, there happens to
be a myriad of different advocates and clients who require access to the forum of the Supreme Court, a
large number of whom are yet unfamiliar with the online systems. As such, keeping only one forum
available for approach unfairly disenfranchises a significantly larger number of those who are unable to
effectively engage in such a platform. It is imperative that both forms of access should be available. A
large (significant) number of advocates in the Supreme Court are yet unfamiliar with the systems that
would allow them to access the Supreme Court’s online forum. Many of them do not have the chamber
setup or the resources available to them to be able to take advantage of the new systems set up by the
Supreme Court. While it is true that it would be ideal if they were so empowered, it is also equally true
that such a requirement from them would be an unfair request, given that at the moment these
individuals are also unable to seek assistance to help familiarize themselves with the forum under
current circumstances. As such, they will have no effective access to the system. This places them in a
difficult situation whereby they are unable to service their clients to the same degree as their
counterparts who are otherwise empowered to do so.

This is problematic on two fronts: first, this creates a disparity between those who are able to access
and those who are not. Second, this allows the delivery of justice to only benefit one half of the legal
community. This is also problematic for the clients of such advocates in that they will be denied access
to justice while their counterparts with advocates who are otherwise empowered will be given access.
This creates the possibility that many advocates will be choosing to capitalize on the situation and in
many cases, advocates might have no options but to encourage their clients to seek help from those
who are technologically empowered. Even where this is true, it is unfair to fathom a situation where
clients would have to change trusted counsel simply on the basis of their access to technology. This
fundamentally offends the principles of meaningful access to justice.

Article 31 of the constitution enshrines an inalienable right to access the forum of the courts. It is argued
that this disparity is an affront to that very right. Barring the creation of a law that actively prevents
those technologically handicapped from accessing the courts, the words of the article of the constitution
falls foul. By keeping the court forum only online, allowing only some to be able to access while those
unable are left to flounder in their own inabilities, whether it be of their own creation or due to their
circumstances, it is fundamentally unconstitutional and unfair.

It is understandable that the courts and the justices would be reserved to the idea that during such
times, it would be difficult to facilitate all cases. Naturally, we are used to seeing crowded courtrooms
and busy balconies of court buildings. Of course, one cannot, given present circumstances, advance the
arguments that all cases are equally urgent and thus require an immediate access to the forum. The
initial proposition to operate courts on a limited basis, having a limited number of benches presiding
over only the most urgent matters, seemed to be able to deal with the gaps and problems as addressed
above. This would mean that advocates and litigants would have to file, online or physically, their cases
ahead of time and based on a prima facie assumption of the urgency of the matter, the courts may
decide to hear it during this pandemic. Assuming something fails to meet predetermined criteria for
such urgency, the courts would then be in a position to impose costs on the filing party and further
enunciate the criteria for such urgency. At least, under this mechanism, it does not disenfranchise those
who do not have the necessary abilities to deal with the matters online.

It should not be proposed to argue that the creation of an online forum is bad. In fact, many judiciaries
across the world have adopted such measures. The United Kingdom and Canada, among the developed
nations, have begun using online forums to dispose of their duties. However, their court structures,
although similar, are still more evolved than ours. Furthermore, they enjoy technological advancements
and significantly better access to such technologies than most developing nations. Malaysia has also
adapted to online forums but has taken the step to allow high courts and subordinate courts to
entertain urgent matters in person, albeit maintaining social distancing measures as per the state policy.
Malaysia’s ICT infrastructure is one that has assisted the court’s functions through e-filing and e-review
mechanisms for nearly a decade now and even still, it was deemed that the courts’ physical forum be
available to the people. This system exists despite the fact that unlike New Zealand and certain other
Commonwealth countries, Malaysia does not view the court as an ‘essential service’. Additionally, one
can take note of the situation in India where in response to the decision to move entirely to an online
forum, the chairman of the Bar Council of India wrote an open letter to the chief justice of India,
reminding him of the ways in which this disadvantages many lawyers within the legal framework.

In the absence of workable structures that facilitate the state’s many functions in such times of
emergency, it is important that the arbiter of disputes is equally accessible to all. In truth, it is the duty
of the courts to act as the guardians of the constitution and as the arbiter of all disputes. These troubling
times are likely to bring about more urgent disputes to be dealt with. Failing to provide an equal access
to the forum to all members of society is a failure of the courts’ constitutional duties.

However, as easy or practical as it may sound, setting up virtual courts has its own challenges and "one
size fits all" approach may not be suitable in this case. Not all countries are fortunate to have the
required infrastructure for the easy use of video conferencing technology, and therefore, will not be
able to take advantage of the same until and unless such technology is seamlessly embedded in its
physical infrastructure. For example, apart from issuing practice directions, the relevant stakeholders
will need to check whether such video-conferencing technologies are available to the relevant litigants
at the said 'remote points'. Otherwise, any efforts taken by the Supreme Court may prove to be futile.
The foremost challenge, in this regard, is the high costs surrounding the set-up and use of sophisticated
and advanced video conferencing technology. In this connection, the support of the Government of
Bangladesh and strategic development by the relevant stakeholders is going to be critical.