Way to compensatory justice system | The Daily Star
12:00 AM, April 12, 2016 / LAST MODIFIED: 12:00 AM, April 12, 2016

Law Opinion

Way to compensatory justice system

Bangladesh as a State under current government is moving with a vision of getting out of the culture of impunity that has been embedded in our politico-legal culture for a long time. However, tragic death like artist Khalid Mahmood Mithu, innocent boy Zihad and also fire in a resident of Banani due to gas pipe leak have reiterated the issues of 'breach of statutory duties' and 'gross negligence' of public authorities in Bangladesh.

In the all aforesaid incidents two things are common, firstly, the sufferings of ordinary citizens, secondly, refusal of public authorities to take their responsibilities for such miseries. It is of little surprise that the concerned public authorities are vehemently unwilling to acknowledge or retrospect their responsibilities the failures of which have caused irreparable losses to the families and friends of the victims. Unsurprisingly, a sound legal system refuses to believe that bank of justice is bankrupt. Thus, citizens have been inflicted harms but none may ultimately be held responsible for the breach of statutory obligations that caused such damage.

Our Constitution as supreme legal document of the land guarantees right to life and liberties of the people under articles 31 and 32 that none is allowed to take away except in accordance with legal mechanisms. In this aspect, we may logically put a question that do our citizenry have any legal recourse if they have been derived of right to life as consequence of the action or inaction of any public authorities? Relevantly, reply to the said query would unfold the scope of making concerned authorities responsible in case of their breach of statutory duties and further to award compensation to the victims or to their families.

In the backdrop of recent fire incident of Banani, Titas Gas, as a State owned corporation has allegedly violated its statutory obligations of providing safe gas pipe line system to users. In our constitutional scheme, under article 21 everyone in the service of republic has a constitutional duty to strive at all times to serve the people. Do our public authorities bear the same sense and spirit in their minds while they perform their jobs? 

In the instant case as reported by media, Titas has been informed several times by the inhabitants of affected house of Banani to take appropriate steps to avoid potential catastrophe, even day before the incident, surprisingly it did not respond accordingly. Titas Gas as authorised agency to manage and distribute the gas among the residents of Dhaka has vested with a statutory duty under section 7(2)(a) of Bangladesh Gas Act, 2010 to maintain a secured gas line system. Its role and response to the imminent danger that has been notified by the residents of house may logically be questioned, and may further be termed as violation of its statutory duty under said Act. Furthermore, Titas Gas may also be put under scrutiny lenses because of breaching its commitments to ensure safe gas pipe line for the users that it has promised in the citizen's charter.

Concomitantly, the breach of statutory or legal duties may raise another legal question of 'negligence' or even 'gross-negligence' on the part of concerned authority. If the issue of 'negligence' or 'gross negligence' is proved the victims may claim compensation for the damage that they had suffered. Even court may order the concerned authorities to provide punitive damages so that it may deter other authorities from repeating similar miscarriages.

Regrettably, compensatory justice is yet to be firmly established in our legal system. However, the recent landmark ruling of High Court Division of Supreme Court of Bangladesh in Children's Charity Bangladesh Foundation (CCB Foundation) v Government of Bangladesh and others (Writ Petition No-2388/2014 filed in the High Court Division (HCD) on the tragic death of 4 years old innocent boy Zihad) may pave the way to the trajectory of compensatory justice in Bangladesh. In this writ petition, the HCD has ordered to pay the compensations to the victim Zihad's family by concerned authorities for their breach of duties. Although government has applied for staying the HCD's order and presumably may challenge the said order in Appellate Division, however, we may hope that jurisprudence of HCD would be sustained in the apex court as well.

Thus, our legal system must find its way forward to the compensatory justice system that may ultimately mitigate sufferings of citizens in one hand and deter our public authorities from breaching their constitutional and statutory duties on the other. 

The writer is a Lecturer of Law, East West University.

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