Damages as a remedy under constitutional tort law in Bangladesh

Article 102(1) of the Constitution empowers the High Court Division (HCD) to issue directions or orders which may be ‘appropriate’ for the enforcement of fundamental rights. The article thus allows the petitioner and the HCD to choose any appropriate remedy, including compensation, for the enforcement of fundamental rights, as it does not specify what kind of redress is to be provided.

Mahmudul Islam, a leading constitutional thinker from Bangladesh, explains that the HCD has significant powers to determine what is an ‘appropriate’ solution under Article 102(1), but enforcement of fundamental rights is not up to discretion subject. The inherent nature of the right to seek redress for violations of fundamental rights thus imposes a similar duty on the court to create innovative and efficient remedies for such violations.

Under Articles 44(1) and 102(1), in the event of a violation of the rights enshrined in Part III of the Constitution, the party affected by such violation has the option to approach the Supreme Court and to serve a summons, as demonstrated in the case of Kazi Mukhlesur Rahman v. Bangladesh. The same constitutional provisions apply when the petitioner claims tort remedies.

In the case of CCB Foundation v. Government of Bangladesh, the court applied the doctrine of negligence and res ipsa loquitur to award monetary compensation of 20 lacs to the Bangladesh Railway Board and the Bangladesh Fire Service and Civil Defense for gross negligence which resulted in the death of a 4-year-old child. This case set an important precedent under which public authorities could be held liable for the negligence of their employees or servants. The Court stated that unlike the Indian Constitution, there is no provision for sovereign immunity, which allows courts to award financial compensation to injured families for violations of the right to life protected by Article 32 of the Constitution. The court further held that the award of monetary damages under public law will not prevent the injured party or victim from seeking damages under private law, and that the respondents’ liabilities under private law will remain exist.

Compensation was also recognized as a remedy under Article 102(1) in the case of Bangladesh v. Ahmed Nazir. In this case, the Appellate Division (AD) determined that the Court has the authority to exercise its discretion in granting the remedy, which is subject to examination of the facts and circumstances. The responsibility for determining appropriate remedies under section 102 lies with the HCD, whether financial or otherwise.

However, the issue of financial relief under Article 102(1) was first raised in the case of Azharuddin Ahmed v. Bangladesh where the petitioner was forced into early retirement in violation of due process. The HCD ruled that the act was illegal and awarded Taka 10,000 as compensation. On the question of who should pay compensation to the victim, the Court held that the government body, whose officials acted unlawfully, was ‘generally’ liable under the Rules of the HCD of East Pakistan (1960). But because such rules were sufficiently vague, the answer was left to the discretion of the Court. Subsequently, in the case of Habibullah Khan v Shah Azharuddin Ahmed, the AD upheld the decision of the Supreme Court, adding that such discretionary power must be ‘applied judiciously’ in accordance with the rule of law.

In Bangladesh, constitutional torts are implemented by both Article 44 and Article 102(1) of the Constitution. Where the statutory authority is liable for the violation of the constitutional rights guaranteed in Part III of the Constitution, a writ seeking damages may be filed with the division of the Supreme Court that holds the state responsible. Therefore, it becomes abundantly clear that only the violation of the constitutional rights guaranteed under Part III of the Constitution gives rise to constitutional torts.

The writer is studying law at East West University, Dhaka.