On 13 March, 2019, Bangladesh Legal Aid and Services Trust (BLAST) organised a seminar on ‘The Rise of Constitutional Torts South Asia’ at the BILIA auditorium. The focus of the seminar was to analyse the current trend of giving compensation in South Asia as constitutional torts remedy under public law and the significance of developing tort law in private law sector for assuring justice. Mahbuba Akter, Deputy Director, Advocacy, BLAST gave the welcome address and highlighted certain public interest litigation and tort cases from the past and present which were filed by BLAST and other rights organisaitons in an attempt to strengthen the compensation framework in the country.
Mr. Rehan Abeyratne, Assistant Professor of Law at the Chinese University of Hong Kong presented a paper titled ‘Ordinary Wrongs as Constitutional Rights: The Public Law Model of Torts in South Asia.’ Mr. Abeyratne argued that contrary to conventional wisdom, tort law has developed substantially in South Asia over the last few decades, although this was through a public law model which is quite different from the traditional private law model. Drawing on case law from Sri Lanka, India and Bangladesh, he showed how wholly private law actions have been constitutionalised in the guise of public interest litigation. Nevertheless, he argued that the model is deeply problematic for procedural, normative, and institutional reasons, and therefore fails to fill the vacuum that has been created by the absence of private torts.
Mr. Taqbir Huda, Research Specialist, BLAST presented a paper on ‘Remedying Fundamental Rights Violations: The Rise of Constitutional Torts in Bangladesh’. Mr. Huda argued that in the absence of an effective tort law mechanism in private law, there has been a growing attempt to invoke Article 102 to establish compensation as a rightful remedy for fundamental rights violations. He gave a chronological account of reported cases where compensation was awarded by the High Court in writs filed under Article 102 to show that the test laid down by the Appellate Division has a very threshold. He then contrasted recent writs filed for compensation for negligence where the High Court either issued orders or show cause rules and questioned the jurisprudential compliance of these rules with the test laid down by the apex court.
Dr. Naim Ahmed, Advocate, Supreme Court of Bangladesh, was a panel discussant and commented that the current tendency of issuing rules on compensation by the High Court may well be in breach of the principle of judicial restraint. He pointed out that the lack of growth of tort law in our private sphere is a symptom of the wider problem regarding the weakness of civil courts. Judges lack confidence to develop an untapped area such as tort law while lawyers lack incentive in bringing tort cases to the district courts due to the hurdles and time lags involved. He argued that it is essential that trial court judgments be published so they are subject to scrutiny and debate, which will in turn encourage judicial creativity.
Dr. Ridwanul Hoque, Professor of Law, University of Dhaka, was also a panel discussant and expressed concern about the current tendency to seek compensation before the High Court Division instead of the trial courts and its implications on the competency of courts and jurisprudential coherence. Moreover, he emphasised the absolute importance of teaching tort law in law schools in a serious rather than lax manner, so the existing void can be filled by the next generation of lawyers and judges.
The panel discussion was followed by an open discussion from the participants which consisted of Supreme Court and District Court lawyers, university professors and lecturers, researchers and law students from various universities. The closing address was given by Justice Md. Nizamul Huq, Chief Legal Advisor, BLAST and former Justice of the Appellate Division, Supreme Court of Bangladesh. He opined that no matter which route is taken, what must be ensured is that the victims of rights violations do ultimately get relief.
The report is written by Tanzim Haq, Research Intern, BLAST.