A panacea for the 'age-old' transport anarchy?

Bangladesh has probably seen for the first time an unprecedented country-wide student protest, started in the last week of July, condemning the unfortunate death of two college students ensuing from the rash driving of two buses in the capital on 29 July. Sustained for a week, the protest has been a concerted effort and strength of school- and college-going students who have unhesitatingly stood up and worked together against the country’s ‘age-old’ anarchy in its road transport sector. It was a time, not very far, when we all were okay with accepting the daily deaths of many countrymen on the road. Hopelessly, that culture once became very normal and common in our country. Because of transport anarchy and lack of road safety, we lost many brilliant and bright minds over the years – whose untimely disappearances still hurt us, the whole nation. Against this anarchy and disorder, the ‘below 18’ students of our country through their peaceful protest, apolitical leadership and entrepreneurial ideas showed us the path to address the ‘age-old’ lawlessness in our road transport sector.

In response to this protest demanding road safety for all, the Cabinet on 6 August 2018 gave a go-ahead to the proposed Road Transport Bill, which apparently aims to reform the existing legal framework concerning road safety of the commuters in public transport, specially in public buses. As the media reports, we have known that the Bill seeks to repeal the existing Motor Vehicles Ordinance 1983. However, title of the Bill unfortunately remains unconvincing as it does not hold the nomenclature of ‘road safety’ in it. How can, however, we forget that road safety of the commuters has been a demand for decades in Bangladesh?

Certainly, the Bill has some praiseworthy provisions – with even telephonic conversations while driving being made an offence. Driving of a motor vehicle on the footpath too has been proposed to be penalised. However, the proper implementation of these provisions needs stringent procedural rules; otherwise, the prescriptions would be tantamount to stale and meaningless words appearing in the law books only. Another praiseworthy provision is that the Bill endeavours to fix working hours, in line with the Labour Act 2006, for the driver, helper, conductor and every other associated with the motor vehicles.

Another change intended to be brought about by the Bill is that it has introduced minimum educational qualification for being drivers. According to the Bill, in order to obtain driving license, the driver has to pass eighth grade while the helper as well as the conductor of a driver have to pass fifth grade. Minimum age for obtaining driving license has been set to be 18.

In respect of a plethora of offences, the Bill has proposed an increased punishment – both in terms of imprisonment and fine. For driving without license, maximum six-month imprisonment or maximum fifty thousand taka as fine or both have been proposed. Rigour has been brought in by providing that if someone commits this offence, he can be arrested without a warrant. Under the Bill, not only the driver, but also the helper has to have a license, and in absence thereof, the latter will be imprisoned for one month or be fined with twenty-five thousand taka. For using a forged license, the penalty under the existing law is two-year imprisonment or two lakh taka fine. Now under the proposed law, the imprisonment period has been kept the same; however, the fine has been increased and made three lakh taka.

Section 11 introduces an innovative provision by saying that every driver shall have 12 points against his license. Each point will be deducted every time the driver commits any offence under the proposed law. After all the 12 points get fully deducted, his license will ultimately be cancelled. Section 12 says that if someone who has a license, is found to be drunk, insane or physically disable, his license will be cancelled. Section 103 of the Bill says that the offences committed thereunder will be non-bailable, as opposed to the existing 1983 Ordinance which makes the offences bailable. There is another admirable provision for rendering financial assistance to the people who become victims to road accidents and/or lose their family members through a financial aid trust to be conducted by a trustee board.

However, the Bill does have some serious loopholes too. For murders and grievous hurts emanating from reckless (beporowa) and/or negligent (obohela kore) driving, maximum penalty has been proposed to be five years. However, if investigation tells a different story, such that when the investigation shows that if the driver were careful, the accident could have been prevented, in that case, he will be punished with death sentence or life imprisonment under section 302 of the Penal Code 1860, or with life imprisonment or ten-year imprisonment under section 304 of the same Code. Monetary fine is applicable in both cases.

The Bill has clarified that section 304B, which provides maximum three-year imprisonment or fine or both, will not be applicable to try an offender for reckless or negligent driving. Back in 1982, section 304B was inserted in the Penal Code with a maximum punishment of seven-year imprisonment. However, due to protest of the truck drivers the Ershad government three years later reduced the punishment to three-year imprisonment – the reduction of which was subsequently challenged in the Supreme Court of Bangladesh. In 2014, the High Court Division declared the reduction of imprisonment illegal. This has given rise to a problem as many lawyers argue that ‘maximum jail term of seven years was restored’ by the Court when it declared the reduction of imprisonment (i.e. three-year imprisonment) void and illegal. If we favour this view, the position of the Government seems to be untenable – which preaches that punishment has been increased for the offence of rash driving. Though the proposed Bill has made section 304B inapplicable for the offence of rash or negligent driving, it has basically reproduced the same offence in different section and apparently increased the punishment (three-year imprisonment to five-year imprisonment), but actually reduced the punishment (from seven-year imprisonment to five-year imprisonment) for reckless or negligent driving.

In short, thus, for reckless or negligent driving, the penalty provided for in the Bill will apply; and resort to the Penal Code shall only be taken when homicide/killing is proved to be ‘intentional’. However, the problem underlying this proposition is the means for proving ‘mens rea’ or ‘intention to kill’ on part of the driver as such. The burden always lies upon the prosecution to prove the case beyond every reasonable doubt to hold the accused guilty and to persuade the Court for applying section 302 upon proving ‘intention to kill’ on part of the driver for the vehicular homicide in question. The common problem in respect of vehicular homicides, regardless of the jurisdictions, therefore lies with the same thing; in almost all the cases, there remains a scope for the driver to get away with the offence through conceding to an allegation of ‘negligence’ or ‘recklessness’ as opposed to an ‘intention to kill’. Under modern criminal law, therefore, an attempt is gradually being made to bring all categories of vehicular homicides (be it with an intention to kill or otherwise) within the purview of ‘negligent’ vehicular homicide (e.g. Model Penal Code of the United States of America). Another interesting thing to note is that Section 302 (and section 304 in specific situations) has been criminalising ‘intentional’ killings from 1860 (be it vehicular or anyhow else).

The Bill has also completely disregarded the twenty-year long Strategic Transport Plan (STP) for the capital, chalked out by the Government Transport Coordinating Authority in 2005. The observation forwarded by Japan International Cooperation Agency (JICA) in 2015, recommended that all the buses and mini-buses should be brought under four companies. Similarly, one of the demands forwarded by the protesters was that all the buses as well as mini-buses should be brought under the authority of a few companies (franchise system) to be centrally controlled. This has been completely overlooked by the Bill.

It was also expected that the monitoring mechanism will be strengthened by the Bill. However, this too has not culminated in reality. Regional Transport Committees (RTC) renders permission to the buses in Dhaka as well as in all the mega cities and districts of the country (for example all the buses in the capital obtains permission from the Dhaka Metropolitan Regional Transport Committee). Under the proviso to section 54(2) of the Motor Vehicles Ordinance, in the RTCs, there shall be at least one representative from the Road Transport Owners Association registered under the Trade Organisations Ordinance 1961, and another representative from the Road Transport Workers Union registered under the Industrial Relations Ordinance 1969. However, in reality, every RTC have three to four such representatives and this cannot be termed as unlawful since law fixes the minimum threshold only. In the draft Bill this proviso has been reproduced, which in turn, paves the way for having more than one such representatives.

Repealing Chapter IA of the Motor Vehicles Ordinance 1983, the Government last year passed the Bangladesh Road Transport Authority Act 2017, in order to establish an authority which would monitor proper, planned and modern management of motor vehicles and road transport system in Bangladesh. However, the present Bill does not clarify as to how it would accommodate the already established Road Transport Authority under the new law.

The proposed Bill says that Government through Gazette notification shall determine the minimum rate of fare for public transports. However, public transports which are air-conditioned and which have special facilities are said not to fall within this provision. In practice, even sitting service is considered to be a ‘special facility’ as such and hence, the fare of buses with sitting services do never correspond to those which are local. The air-conditioned buses fix their fare depending on their respective whims and they do never comply with the rules. No provision has been made in the Bill addressing the issue of determination of fare.

Despite all these criticisms, the Government can indeed be said to have taken the issue of road safety very seriously. But question remains: will this proposed law operate as a panacea for the ‘age-old’ anarchy in transport sector? Will the new law be able to make the public transport sector truly ‘people-friendly’? We make laws, but do we ensure their proper implementation, irrespective of our position and status? If not, then what is the use of making new laws? These are the questions which are now getting spoken against the ‘age-old’ transport anarchy – an anarchy which has bred for long a sense of lawlessness and political favoritism towards all wrong-doers on the road.

THE WRITERS WORK AT LAW DESK, THE DAILY STAR.