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Journal Articles: Multiple Authors
Taslima Monsoor and Raihanah Abdullah, ‘Maintenance to Muslim Women in Bangladesh and Malaysia: Is the Judiciary Doing Enough?’ (2010) 21(2) Dhaka University Law Journal 39, 47. [Note: honorific titles (and initials) are omitted. However, M, Md, Mohd and any other abbreviated form of Mohammad which are part of author’s name should not be removed. 21 is the volume and 2 is the issue no of the journal. 2010 is the publishing year. Year should be placed in square brackets [for journals that do not have volume number.]
Books: Single Author
Shahnaz Huda, A Child of One’s Own: Study on Withdrawal of Reservation to Article 21 of the Child Rights Convention and Reviewing the Issues of Adoption/fosterage/ kafalah in the Context of Bangladesh (Bangladesh Shishu Adhikar Forum, 2008) 187. [Note: here 187 is the pinpoint reference. This reference is from the first edition of the book. In the case of editions later than the first, the edition number should be included after the publisher’s name. It should appear as: 3rd ed] John Finnis, Natural Law and Natural Rights, (Oxford University Press, 2nd ed, 2011) ch 4. [Here, a broad reference is made to chapter 4 of the book.] Books: Multiple Authors Richard Nobles and David Schiff, A Sociology of Jurisprudence (Hart Publishing, 2006) 49. Paul Rishworth et al, The New Zealand Bill of Rights (Oxford University Press, 2003). [Note: when there are more than three authors, only first author’s name should appear and ‘et al’ should be used instead of remaining authors’ names.] Books: Edited Tom Ginsburg (ed), Comparative Constitutional Design (Cambridge University Press, 2012). [Note: where there are more than one editor, ‘(eds)’ should be used instead of ‘(ed)’.] Chapters in Edited Books Jon Elster,‘Clearing and Strengthening the Channels of Constitution Making’ in Tom Ginsburg (ed),Comparative Constitutional Design (Cambridge University Press,2012)15, 18. Books: Corporate Author McGill Law Journal, Canadian Guide to Uniform Legal Citation (Carswell, 7th ed, 2010). American Psychological Association, Publication Manual of the American Psychological Association (6th ed, 2010) 176. [Note: a publisher’s name should not be included where the publisher’s and the author’s names are the same.] World Bank, Gender and development in the Middle East and North Africa: women in the public sphere (2004). Theses Naim Ahmed, Litigating in the Name of the People: Stresses and Strains of the Development of Public Interest Litigation in Bangladesh (PhD thesis, SOAS, 1998). Working Paper, Conference Paper, and Similar Documents Jens Tapking and Jing Yang, ‘Horizontal and Vertical Integration in Securities Trading and Settlement’ (Working Paper No 245, Bank of England, 2004) 11–12. James E Fleming, ‘Successful Failures of the American Constitution’ (Paper presented at Conference on The Limits of Constitutional Democracy, Princeton University, 14-16 February 2007) 13. Newspaper Stephen Howard and Billy Briggs, ‘Law Lords Back School’s Ban on Islamic Dress’, The Herald (Glasgow), 23 March 2006, 7. Imtiaz Omar and Zakir Hossain, ‘Coup d' etat, constitution and legal continuity’, The Daily Star (online), 24 September 2005
A T Mridha v State (1973) 25 DLR (HCD) 335, 339. [Here, the case is reported on page 335, and the pinpoint is to page 339. Full stops should not be used in abbreviations.]
Bangladesh Environmental Lawyers Association (BELA) v Bangladesh [1999] Writ Petition No 4098 of 1999 (pending). [Note: ‘& others,’ ‘& another’ should be omitted.]
Shahida Mohiuddin v Bangladesh [2001] Writ Petition No 530 of 2001 (unreported). Parallel citations should not be used in citations of Bangladeshi cases. But in citations of United Kingdom Nominate Reports and early US Supreme Court decisions, parallel citations are used.
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Family Courts Rules 1985, r 5. Financial Institutions Regulations 1994, reg 3. Abbreviations should be written out in full when they appear first in the text or form the first word in a sentence. Leave out full stops in abbreviations made up of capitals as, for example, SEC, HCD, and JATI.
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Published in January 2017 by the Registrar, University of Dhaka.
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The Faculty of Law publishes Dhaka University Law Journal (The Dhaka University Studies Part F) twice a year. The subscription rates for individuals for a single issue are Taka 75 (domestic) and $15 (international). Institutional subscriptions for a single issue are Taka 100 (domestic) and $20 (international). Postal costs will be charged separately. Manuscripts and editorial correspondence should be addressed to:
Editor Dhaka University Law Journal (Dhaka University Studies, Part-F) Room No. 110, Kazi Motahar Hossain Bhaban Faculty of Law University of Dhaka Dhaka-1000, Bangladesh Tel: 58613724, 9661920-73/4348/4349 Fax: 58613724 E-mail: [email protected] DHAKA UNIVERSITY STUDIES PART-F VOL. 26 NO. 2 DECEMBER 2015
1. Professor Dr. Taslima Monsoor, Department of Law, University of Dhaka
2. “Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence and Diversity in Corporate Governance Regulations” Mr. Md. Khurshid Alam, Associate Professor, Department of Law, University of Dhaka
3. “Rediscovering the Rules for Communication of Contract Law in Bangladesh: Legal and Philosophical Perspective” Ms. Dalia Pervin, Associate Professor, Department of Law, University of Dhaka
4. The Role of the Human Rights Committee in Standardizing the Right to Legal Aid Farzana Akter, Assistant Professor, Department of Law, University of Dhaka
5. Unruly Practice: The History of Torture Throughout the Ages Dr. Raushan Ara, Assistant Professor, Department of Law, University of Dhaka
Gender and Adoption: A Comparative Study of Bangladesh and Malaysia
Prof. Dr. Taslima Monsoor
Introduction Islamic Family Law system is being practiced by the states where Muslim community is dominated. In some states, there is legal pluralism.1 It is suggested by authors that the area of personal status of women comes to be the leading position as being a breeding ground for legal pluralism.2 The rights of adoption of women are best suited for this kind of study as they are issues of legal pluralism. There is plurality of sources based on Islamic notions and statutory laws. In the context of the present study, particular emphasis should be given to Islamic Family law, which is based primarily on the religion of Islam. The idea in reforming the Muslim law began when the authorities of certain Muslim countries felt that it is unsuitable to cope with several problems faced by the women of those communities. Several Muslim countries have started to promulgate their Family Law in a codified form. Not every aspect of Family law was subject to reform. Polygamy, Talaq, minimum age of marriage was among the matters of concerned to the reformers. Other areas such as custody, guardianship and adoption seemed to remain untouched by the reformers and were left to be governed by the classical law. Women’s rights of custody and guardianship are related with adoption and will be highlighted in this article. Custody and guardianship are already granted in the Sharia law and under official law. However, after several decades of the implementation of the legal provisions at the courts, various problems have been encountered by women especially in their ways to get justice and their rights. Islamic Law recognizes that a mother is of all persons most desirable to have the custody of their small children in their infant or tender years, so that proper care and attention should be given to it. But for guardianship where it is involved with the property of the minor mother is not given the right. As those rights are not given
Dean, Faculty of Law & Professor Department of Law, University of Dhaka. 1 Legal pluralism in this article means the existence of principles or rules other than those enacted by the state to govern the conduct of the people. Here it means Islamic Law and Statutory Law. 2 Nassar, Nagla, Hashem, Ibrahim & Tawfik: “Legal plurality: Reflections in the status of women in Egypt.” In Legal Pluralism in the Arab world. The Hague, London, Boston, 1999, pp.191-204, at p.192. 2 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 women are actually deprived of economic empowerment. Adoption is not recognised by the law and society in Bangladesh and adoption by women is a taboo. With the growth of women studies, many authors have identified labour, power and sexuality as the main structural elements shaping the relationship between gender and power.3 The economic position of women in a society is reflected according to an eminent author as ability to own, or inherit and control, income earning assets; ability to participate in economic activities; control over their husband's income and right and ability to control property.4 Women in Bangladesh are, marginalised within an intensely hierarchical system of gender relations which continually challenge to deny women not only access to social power and control over their own lives but also granted rights to which they are entitled.5 Female employment in Bangladesh did not provide women control over main production, landownership or income earned.6 Thus women in Bangladesh needs to be more economically empowered. However, Muslim women in Malaysia seem to have a better position than Bangladesh. In view of our premises, we shall need to focus particularly on the question whether judges protect women from abuse and exploitation. Thus, the central theme of this article is to assess comprehensively to what extent the legislative enactments in family law, especially on custody, guardianship and adoption have contributed to giving women in Bangladesh and Malaysia better protection from economic deprivation and violence.7 The Government of Malaysia through the National Policy of Women in 1989 has underlined strategies for women advancement. Women were given equal opportunities to higher education, better access to health-care and encouraged women to participate in workforce not only on the insignificant occupations but also in professional and managerial positions.8 The government developed several programs to improve the legal and socio-economic status by providing greater opportunities in education, employment and monitoring programs for integration of women in development. Despite of industrialization and modernization, Muslim women in Malaysia did not abandon their religion, culture and tradition to improve their status.9
3 See for example R.W Connell, Gender and Power: Society, the Person and Sexual Politics (Stanford University Press, 1986) 104. 4 Alia Ahmad, Women and Fertility in Bangladesh (SAGE Publications Pvt. Ltd, 1991) 31. 5 Naila Kabeer, 'Subordination and Struggle: Women in Bangladesh' (1988) 168 New Left Review 95-121, at 101. 6 Zarina Rahman Khan, Women, Work and Values: Contradictions in the Prevailing Notions and the Realities of Women's Lives in Rural Bangladesh (Dana Publishers, Dhaka, 1993) 198. 7 Taslima Monsoor, From Patriarchy to Gender Equity: Family Law and its Impact on Women in Bangladesh (University Press Limited, Dhaka, 1999). 8 Roziah Omar, ‘Negotiating Their Visibility: The Lives of Educated and Married Malay Women’. In Women in Malaysia: Breaking Boundaries (2003, Kuala Lumpur) 124. 9 Roziah Omar, ‘Negotiating Their Visibility: The Lives of Educated and Married Malay Women’. In Women in Malaysia: Breaking Boundaries (2003, Kuala Lumpur) 125. Gender and Adoption: A Comparative Study of Bangladesh and Malaysia 3
The practice of law in Muslim majority countries like Malaysia and Bangladesh is shared to propose a reduction in improper application of Sharia law, particularly affecting women. The difference of social attitude of women in Bangladesh and Malaysia is the main reason for comparison of this analysis. Therefore, this article will highlight the legal justice system by reviewing the relevant judicial system and mechanism in the legal framework and processes for the enhancement of enforcement of laws on women. The article aims to evaluate the potentiality of Sharia law for better protection of women in relation to her rights of custody, guardianship and adoption. The impact of legal practice is exposed by the cases, from which the views of the judiciary about the application of the laws for the empowerment of women of Bangladesh and Malaysia can be analysed. This study also focuses on the question whether women in Bangladesh and Malaysia stand to benefit from judicial activism. Along with the trend for more modern legislation in Bangladesh and Malaysia, this indicates an apparent sensitivity in issues involving the welfare of women, particularly protecting them from abuse.10 Bangladeshi Legal System The legal status of the Muslim women in Bangladesh is defined by the principles of Sharia through Muslim Personal Law along with the general law which is non- religious and secular in its character. The Muslim Family law covers the field of marriage, divorce, maintenance, guardianship of children and inheritance whereas the general law covers the rights under the Constitution, Penal Code, the Civil and Criminal Procedure Code and Evidence Act. There are quite a few statutes dealing with family matters in Bangladesh the 1929 Child Marriage Restraint Act, the 1939 Dissolution of Muslim Marriage Act, the 1961 Muslim Family Laws Ordinance (hereinafter, MFLO), the 1985 Family Courts Ordinance, the 1980 Dowry Prohibition Act, the 1974 Muslim Marriage and Divorce Act. This article is focused on the main areas of concern as the right to custody, guardianship and adoption as understood in the prevalent Hanafi School in Bangladesh. In modern national legislation of Muslim states, the traditional approach is dominant. However, various procedural measures are often introduced with the aim to mitigate possible negative consequences for women. It is necessary to examine the legal status of the Muslim women in Bangladesh in the context of these two sets of law as in both cases women are supposedly fortified with thematic legal rights, but there is a gulf of difference existing between theory and its actual application. Most important of all, it must be seen that some of these laws though excellent in theory prove largely elusive in practice. The main hurdle that lies in the way of the practical application of the legal rights of women in
10 Shahdeen Malik, 'Saga of Divorce Women: Once again Shah Banu, Maintenance and Scope for Marriage Contracts' (1990) 42 Dhaka Law Report Journal, 34-40, at 39. 4 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Bangladesh is obviously the inherent contradiction of attitude that permeates the male oriented society considerably supported by religious beliefs. In this discussion, however, I shall mainly refer to those statutes or those provisions of a statute which treat men and women differently in the matters of custody, guardianship and adoption. In the matter of guardianship of children, a Muslim woman is definitely at odds.11 Under Muslim Law, the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian either of the person or property of the child; the father alone, or if he is dead, his executor is the legal guardian. Salma Sobhan points out that in Islam a careful distinction is made between being entitled to the custody of one's children and being their guardian and one would be tempted to compare the difference between these two concepts to the difference between possession and ownership.12 Article 28(4) of the Constitution permits favourable laws to be enacted regarding children even though it might be otherwise discriminatory. Article 28(4) provides as follows: “Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.” The Children Act, 1974 has promulgated succinct provisions aimed at giving special treatment for children. The UNCRC goes further to provide more beneficial provisions dealing with children. It is stated in the preamble of the UNCRC that the child for the good and harmonious development of his or her personality should grow up in a family environment, in an atmosphere of happiness, love and understanding. It is also stated in the UNCRC, quoting from the Declaration of Rights of the Child, “the child by reason of his physical and mental immaturity needs special safeguards and care including appropriate legal protection before as well as after birth.” In Article 3(1) it is stated as follows: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” [emphasis added]. Under normal circumstances any child ordered by the Court to be enlarged on bail would go to the parents; normally the best interests of any child would demand that
11 Sultana Kamal, Law for Muslim Women in Bangladesh (Publication Author, 1988).
it be kept in the custody of the parents.13 In this regard we get some guidelines from the United Nations Convention on the Rights of the Child (UNCRC). Bangladesh was one of the first signatories to the Convention but has not yet incorporated all the provisions of the UNCRC into its national laws i.e., The Children’s Act of 1974. On the other hand, our domestic laws do not contain the beneficial provisions of the UNCRC and they also are not in conflict with our domestic laws, save and except Article 21 regarding adoption. They may, therefore, be considered if it would be in the best interests of the child. Article 20.1 of the UNCRC provides as follows: “20.1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, Kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.” In any event, in Muslim Law, the mother is never entitled to the guardianship of her children. However, a mother is always entitled in the first instance to the care and custody of her young children. Her sons she may keep till they are seven, and her daughter’s till puberty. The father is responsible for their maintenance during that period. A mother may lose custody of her children, particularity her daughters, if she re-marries a stranger, someone that is, who is not barred to the children by the rule of consanguinity. These are the basic rules, but they have been modified, not only by the Guardian and Wards Act, but there is also a fairly substantial amount of case-law on the subject, which overall has been very sane. It is laid down by the Guardian and Wards Act, 1890 that these provisions are for the benefit and protection of the child, and that it is the courts paramount duty to consider the welfare of the children over the rights of the parents.14 According to Salma Sobhan again, "Thus, remarriage of the mother outside the permitted degrees has not been held an absolute reason for depriving her of the custody of her children.”15 Were the children having been all along in the custody
13 State v Metropolitan Police Commissioner, Khulna and others (2008) 37 CLC (HCD) 5264. 14 20 Dhaka Law Report (1968) 1. 15 Salma Sobhan, Legal Status of Women in Bangladesh (Bangladesh Institute of Law and International Affairs, Dhaka 1978) 20. 6 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 ceased, it was still considered advisable to let them continue in her care and control, as the father had re-married and it was felt that the children's interests would not be so well looked after by their step-mother. The father is only free from the burden of maintaining his children where they are being withheld from him illegally. The mother's poverty is never a sufficient reason to deprive her of her right to the custody of her children.16 Under the Guardian and Wards Act, 1890 further, a mother can always apply to the court to be appoint as the guardian of her children. Malaysian Legal System In Malaysia like Bangladesh Islamic Law was regarded as the law of the land before the British invasion. There is no single family law system that applied to the whole country. There exist two different family law systems: one is for Muslims and the other for non-Muslims. The Law Reform (Marriage and Divorce) Act 1976, which was enforced throughout Malaysia from 1st March 1982, governs the Chinese, as well as Hindus and other religions. Muslims, on the other hand, are governed by the Islamic Family Law system. For Muslims, family affairs are closely related to their way of life. This is due to its connection to areas like marriage and divorce, and matters arising there from, such as maintenance, matrimonial property, custody and the relationship between children and parents. This aspect of life is always given great attention and draws the interest of researchers who seek answers to many questions that arise from the implementation and practice of Islamic Family Law.17 The Shafi’i school of law is predominantly followed in Malaysia but in Bangladesh the majority of the population follows the Hanafi school of thought. Malaysia is a unique country in that its political, sociological and legal systems reflect quite clearly the country’s multi-racial and multi-religious culture. By virtue of Article 3 of the Malaysian Federal Constitution: “Islam is the religion of the Federation of Malaysia but other religions may be practiced in peace and harmony in any part of the Federation”. Further, Article 11 Federal Constitution states that: “(1) Every person has the right to profess and practice his religion, and subject to Clause (4) [regarding propagation of religions other than Islam amongst Muslims], to propagate it.” The Civil High Courts (secular courts) have jurisdiction over family matters relating to non-Muslims in Malaysia, whereas Syariah Courts (so named under Islamic Law) have jurisdiction over family matters relating to Muslims. By an amendment to the
16 ibid. 17 Raihana Abdullah, ‘A Study of Islamic Family Law in Malaysia: A Select Bibliography’ (2007) Issue 3 Winter, Volume 35 International Journal of Legal Information, 514-536, at p.514. Gender and Adoption: A Comparative Study of Bangladesh and Malaysia 7
FC, that is Article 121(1A), which came into force on 10th June1988, the Civil High Courts in Malaysia have no jurisdiction in respect of any matter that falls within the jurisdiction of the Syariah Courts. This dual system of laws works perfectly well when lines are clearly demarcated and families stay within those lines; indeed, members of one family who practise the same religion would therefore be governed by one set of laws and come under the jurisdiction of one court. In Malaysia, the Federal Territory Islamic Family Law Act 1984 provides ten parts. The parts are dealing with different issues of family law and penalties for not applying the statute.18 The Islamic Family Law 2000s has included two additional provisions to the previous ones. Similar provisions regarding procedures and processes still stand in the application for polygamy. The husband must fulfil certain conditions before the court grants permission for contracting another marriage. However, significant amendments in the new laws relating to polygamy are seen in the summoning of the prospective wife and her guardian (Wali) to be present during the hearing. The promulgation of the detailed Islamic Family Laws received support from society as well as women’s groups. Adoption and Muslim Law The word “adoption” comes from the old French word “adopt are”, meaning “to choose for oneself.” Today, adoption refers to the act of legally taking another person’s child into your family to raise as your own. Adoptive parents may decide to adopt for many different reasons: some adopt due to infertility, some to help a specific child and others for social justice. Whatever the reasons, adoption should be done lawfully and legally. This is to protect the best interests of the adopted child. Under the Shari’ah, adoption (tabanni) in its real sense is prohibited.27 This is based on the Quranic ruling which states to the effect; Allah has not made your adopted sons your real sons. That is but your saying with your mouths. But Allah says the truth, and He guides to the (right) way. Call them (adopted sons) by (the names of) their fathers; that is more just with Allah. But if you know not their father’s (names, call them) your brothers in faith and Mawalikum (your freed slaves).28 Adoption is prohibited since it destroys the Islamic family system. Adoption
18 In Part I – Preliminary; Part II – Marriage; Part III – Registration of Marriage; Part IV – Penalties and Miscellaneous Provisions Relating to the Solemnization and Registration of Marriages; Part V – Dissolution of Marriages; Part VI – Maintenance of Wife, Children and Others; Part VII – Guardianship; Part VIII – Miscellaneous; Part IX – Penalties; and Part X – General. 27 Mahmud Shaltut, al-Fatawa 2001; Atiyyah Saqar, al-Fatawa n.d. 28 Qur’an, Al-Ahzab: 4–5. 8 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 in its real sense contradicts with many rules in the Quran such as rules relating to prohibited degree of marriage.29 It also contradicts with the truth30 since adoption changes the status of the adopted child from being the child to his natural parents to the child of the adopter, whilst the truth is that he is not the child of anybody except his natural father and mother. Adoption also severs the relationship between the adoptee and his natural parents and families. This clearly contradicts the teaching of Islam which forbids the Muslim from severing relationship among them. The Qur’an states to the effect: Would you then, if you were given the authority, do mischief in the land, and sever your ties of kinship?31 On the other hand, Islam reminds its followers to help one another in doing righteousness and piety. Lending a helping hand in bringing up others children is a way to help a Muslim brother. The Quran states to the effect; Help you one another in Al-Birr and At-Taqwa (virtue, righteousness and piety); but do not help one another in sin and transgression.32 Whilst the Prophet tradition states to the effect: He who helped in alleviating suffering of a believer from the distress of the world, Allah would relief him from distress of the day of Resurrection. He who makes things easy for one who is hard pressed, Allah will make things easy for him in both in this world and the hereafter, and he who covers (the failing of) a Muslim, Allah would provide him covering in this world and in the hereafter. Allah would come to help of a servant as the servant had been coming to help his brother. 33 The above verse of the Quran and tradition of the Prophet (pbuh) reflect that Islam encourages its believers to help one another in doing righteousness where the benefits will return to themselves whether in this world or in the hereafter. Allah says: And whoever strives, he strives only for himself. Verily, Allah stands not in need of any of the ‘Alamin (mankind, jinn, and all that exists).34 Therefore, prohibition of adoption (tabanni) in Islam does not in itself prohibit
29 Islam prohibits marriage e.g. among those who are related to one another through blood but not those who are in adoptive relationship. See for e.g. the Qur’an, an-Nisa’; 4: 23 and al-Maidah: 87 30 Wahbah Al-Zuhayli, Tafsir al-Munir, Dar al-Fikr, 1998, vol. 21 at 240. 31 Muhammad, 47:22. 32 Qur’an, Al-Maidah: 2. 33 Muslim, Sahih Muslim, kitab al-zikr wa al-du’a wa al-tawbah, bab fadhl al-ijtima’ ‘ala tilawat al-Qur’an wa al-zikr. Dar al-Fikr, vol. 4, at 233. 34 Qur’an, Al-‘Ankabut: 6. Gender and Adoption: A Comparative Study of Bangladesh and Malaysia 9
us from helping children or family who are in need of help. Islam has laid down clear rules as to anyone who wishes to help a child in adoption, i.e. one of the rules is that the adopter should not change the adoptee’s natural status, e.g. his paternal and maternal lineage. Furthermore, both the adoptive family and the adoptee should interact within the limitation prescribed by the Shari’ah, especially when the adoptee reaches the age of puberty.35 With regard to the Islamic Family Law (Federal Territories) Act 1984 (IFLA), even though it deals directly with personal laws of a Muslim, there is no specific provision for adoption. The Islamic Family Law (Federal Territories) Act 1984 (IFLA) seems to provide general provisions for protection of the rights of ordinary children to custody, guardianship36 and maintenance37. With the availability of the Registration of Adoptions Act 1952 (the RAA) that is in line with Islamic principle, it might have been felt unnecessary to have a pure Islamic law of adoption. On the other hand, this assumption should be replaced as Islamic principles need to be clearly provided in written legislation so that it can be applied and practised to the fullest and without any doubt. Firstly, Islam requires that the child’s original identity and the identity of his birth parents be kept on record for disclosure to the child at a suitable age. In practice of “open adoption”, the adopted child is eventually told that he or she was adopted. The purpose is to ensure that the adopted child does not enter into non- permissible (Muhrim) relationships with blood relatives. Secondly, Islam does not recognize any change to a child’s inheritance rights despite the adoption. The rules of Islamic inheritance law (Fareid / Faraiz) apply to Muslims but the adoption can be applied for life without disturbing inheritance. Adoption in Bangladesh- Tabani or Kafala? Adoption in Bangladesh is a taboo as it is not permitted in Islam. But there is another concept of Islamic Adoption for life or Kafala. Where a child is adopted without any change of status or inheritance is not provided to him but he is maintained for life and can be given gift or Hibah. The style of Islamic adoption is similar to a guardianship. If the guardian considers, the child may get ownership of the property through Hibah /donation/ gift/ will etc, but no adopted/orphan child under the Muslim law can claim inheritance in Bangladesh like Hindus. So, adoption is prohibited/not allowed under Muslim Laws of Bangladesh but it is practically not impossible as any person can apply to the
35 Qur’an, an-Nur: 31. 36 See Islamic Family Law (Federal Territories Act 1984) Act 303, ss. 81 – 105. 37 See Islamic Family Law (Federal Territories Act) 1984, ss. 72 – 80. 10 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Court or by Law (Guardianship Act 1890) may become guardian of the body and property of a child. There are various reverse opinions of the writers of Muslim law about the question whether Adoption is permissible or not.38 Some authors have the view that adoption is unknown to Mohammedan law.39 In Mullas Principles of Mohammadan Law it was observed that the Muslim law does not recognize adoption as a mode of filiations.40 But some of them have the view that where custom is given priority by legislation over general Mohammadan law as in India in the states of Punjab, Oudh and some other places a special family or tribal custom of adoption will, if proved, prevail over that law. B.R. Verma in his commentary on Mohammadan Law has stated that Adoption shall not confer upon any person the status of a child except in the cases where subject to the provisions of the Shariat Act (XXVI) of 1957 there is valid custom of adoption and where it is permitted by the provisions of any law for the time being in force.41 The Muslim Personal Law (Shariat) Application Act, 1937 to make Provision for the application of Muslim Personal Law (Shariat) to Muslims Section 2 of this Act Provides as under –“ Notwithstanding any Customs of usage to the contrary in all questions (save question relating to agricultural Land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of personal Law, marriage, dissolution of marriage, including Talaq, Ila, Zihar, Lian, Khula and Mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties and Wakfs (other than Charities and Charitable institutions and Charitable and religions endowments) the rule of decision in cases when the parties are Muslim shall be the Muslim personal Law (Shariat).” Thus, these are to be governed by Muslim Personal Law notwithstanding any custom or usage to the contrary. However, the matters enumerated in this section do not include adoption. Interestingly, a significant number of guardianship cases are filed in the Family Courts, especially in Dhaka, for guardianship of children abandoned by their biological parents. Couples not having any issue of their own generally file this type of case, as an alternative to adoption. It appears that the scope for such applications has opened due to the manner in which Section 7 of the Guardian and Wards Act, 1890 is being construed. Liberal interpretation and application of this provision has allowed individuals within a broad category to file such guardianship applications.
38 See Amir Ali, Wilson, Abdur Rahman etc. 39 Dr. Md.Fayaz Khan, Adoption under Muslim Law (Dept. of Law, Patna University, Patna) 2009, 1. 40 Justice M. Hidayat-ullah and Arshad, Mullah’s Principles of Mohamedan Law (Tripathi Pvt. Ltd. 19th ed, 1990), 220. 41 B.R. Verma, The Mohammadan Law in India & Pakistan (Allahabad: Law Book Co., 3rd ed, 1962) 228. Gender and Adoption: A Comparative Study of Bangladesh and Malaysia 11
Such practices can be seen as an example of creative application and extension of existing legal provisions to cover real needs, in the absence of express provisions to deal with such matters. However, it needs to be mentioned that these processes do not amount to adoption per se, because they do not provide the child with the same legal security or rights. Muslim personal law as applied in Bangladesh does not yet permit adoption. We consider that a lasting solution to this issue would be to enact a separate secular law on adoption to fill up the gap that currently exists in this area.42 The Specific Law on Adoption in Malaysia Malaysia is practising a dual legal system, one of which is the Civil law and the other is Islamic law. This is to accommodate its people the majority of which are Muslims and non-Muslims. The Civil law on many occasions is also applicable to Muslims but the Islamic law is exclusively applicable to Muslims. The matters in which Islamic law is totally applied are matters relating to personal law of Muslims, for example Islamic Family law. Therefore, the personal law of the people in Malaysia is basically governed by Civil law for non-Muslims and Islamic law for Muslims. Adoption falls under personal law of the people. Basically, there are two kinds of adoption that are recognized in Malaysia; namely, adoption that affects the status of adopted child44 and adoption that does not affect the status of adopted child. It follows that the first kind of adoption can be defined as to take a child of another as one’s own child. Meanwhile, the second kind of adoption can be defined as to take the child of another in one’s care and custody without affecting the status of the child. As regards the nature of adoption, it involves new placement of a child where the child will be placed with a new family permanently. The responsibilities of the biological parents will also shift to the adoptive parents. These two kinds of adoption are manifested in two statutes governing adoption in Malaysia, namely The Adoption Act 1952 (the AA)45 and The Registration of Adoptions Act 1952 (the RAA).46 These two statutes are applicable in West Malaysia,47 while in Sabah, adoption is governed by the Adoption Ordinance 196048and in Sarawak, Adoption Ordinance 9149 is applied. The status of the child adopted under the Adoption Act
42 Nowrin Tamanna, et.al, ‘Muslim Women’s Rights under Bangladesh Law: Provisions, Practices and Policies Related to Custody and Guardianship’ (2011) The South Asian Institute of Advanced Legal and Human Rights Studies (Sails) 14. 44 For example, the adopted child paternity status that changes and transfer from the birth parents to the adoptive parents See Nigel Lowe and Gillian Douglas, Bromley’s Family Law (London: Butterworth’s, 9th ed, 1998) 611. 45 Act 257. 46 Act 253. 47 See Adoption Act 1952 s. 1(2) and Registration of Adoptions Act 1952, s. 1(2). 48 No. 23 of 1960 49 Ed. 1958 of the Laws of Sarawak 12 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
1952 as well as under the Sabah Adoption Ordinance 1960 and the Sarawak Adoption Ordinance 91 are basically similar. Adoption under these Act and Ordinances reflect the first type of adoption while adoption under the Registration of Adoptions Act 1952 reflects the second type of adoption. For the purpose of this article, discussion will concern only with the adoption under AA and the adoption under the RAA. Statutory Law of Adoption in Malaysia50 There are two separate but concurrent legislative schemes in Malaysia for the adoption of children: 1. Adoption Act 1952 (“Adoption Act”); and 2. Registration of Adoptions Act 1952 (“Registration of Adoptions Act”). The Adoption Act is applicable to non-Muslims only while the Registration of Adoptions Act caters for adoption by Muslims (although its application is not restricted to Muslims only). Registration of Adoptions Act 195251
Registration of Adoptions Act 1952 (the RAA) came into operation on 1stJanuary 1955. Like the AA, the RAA is applicable only to West Malaysia. On the other hand, it is different to the AA as it is of general application and is applicable to both Muslims and non-Muslims.52 The RAA basically provides for registration of a de facto53 adoption, including customary adoptions.54 However, failure to register the adoption shall not affect the validity of the adoption after all the necessary requirements are fulfilled. 55 In general, a de facto adoption denotes an informal adoption which is done personally, or an adoption which is done through the DOSW before registration. It can also include fostering. Although fostering is not an adoption, it shall give the foster parent a de facto control over the foster child.56 The
50 Raymond Mah & Liow Pei Xia, Adoption in Malaysia 51 Azizah Mohd, ‘Adoption as a Means of Child Protection: The Law and Practice in Malaysia’ (2012) Asia Pacific Journal of Social Work and Development. 52 See Registration of Adoptions Act 1952, s. 1. 53 The whole objective of the enactment seems to cater for de facto adoptions. See comment by James Foong J in Tang Kong Meng v Zainon bte Md Zain [1995] 3 MLJ 408 at 414. 54 Customary adoptions refer to adoptions which have been practiced since a long time ago especially before introduction of the law on adoption. For further details, see Shamsuddin Suhor, Anak angkat dan undang-undang (Kuala Lumpur, MY: DBP, 2008) 1 – 7. 55 Registration of Adoptions Act 1952, s. 11. See also Mimi Kamariah Majid, ‘ Family Law in Malaysia’ (1999) Malayan Law Journal: Kuala Lumpur 222. 56 O.S. Khoo, Parent– Child Law in Singapore (Singapore: Butterworths. 984). Gender and Adoption: A Comparative Study of Bangladesh and Malaysia 13
RAA describes a de facto adoption as a situation where a child is in the custody of a person, being brought up, maintained and educated by him as his own child for a period of not less than two years continuously.57 The fact that an adopted child is under the custody, care and control of adoptive parents reflect a de facto control over the child and this becomes the first condition to be fulfilled for adoption to be registered under the RAA.58 In order to prove this, the adoptive parents have to produce evidence, either oral or documentary, that the adoption really took place.59 Accordingly, consent from the biological parents or the child’s guardian is a must for the validity of the adoption. The RAA requires that the parents or one of the parents or in absence of the parents, the guardian of the child, to appear before the Registrar and express his consent to the adoption.60 Nevertheless, the Registrar may dispense with parental consent or the adopted child custodian if it is just and equitable to do so and for the welfare of the child, for example, in the case where the parents of the child are not known or cannot be found or in the case of illegitimate child.61 In the case of Sean O’Casey Patterson vs. Chan Hoon Poh & Ors,62 the consent of the father who was not known to be the father of the child at the time of adoption was irrelevant. In giving the evidence upon adoption, the parties and witnesses are bound to speak the truth or otherwise they will be liable to a punishment under Chapter XI of the Penal Code.63 The RAA further requires that the adopted child is less than 18 – years-old, and the adoptive parents must be over 25 years of age or at least 18 years older than the adopted child in a case where they are strangers to the adopted child. If one of the adoptive parents is the child’s relative, such as a brother, sister, uncle or aunt, whether by consanguinity or affinity, of the child, or if the child is illegitimate, a person who would be so related if the child were legitimate; they must be at least 21-years-old. Nevertheless, if one of the adoptive parents is either the mother or father of the adopted child, then no age requirement is imposed.64
57 Registration of Adoptions Act 1952, s. 6. 58 Registration of Adoptions Act 1952, s. 6(1). 59 Registration of Adoptions Act 1952, s. 6(1) (a). Example of the evidence includes the letter of consent from the natural parents of the child or from its mother in the case of an illegitimate child, or a letter on the custodial right of the child from the court or the DOSW in the case of an abandoned child. See also Kamaruddin Abd Ghafar, Prosedur pengambilan anak angkat dan realitinya di Malaysia (Bah. 3) 11. 60 Registration of Adoptions Act 1952, s. 6(b). 61 Registration of Adoptions Act 1952, s. 6(1)(b). 62 [2011] 3 CLJ 722. 63 Registration of Adoptions Act 1952, s. 8(1) & (2). 64 Registration of Adoptions Act 1952, s. 10 (2)(a)(b)&(c). 14 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Similar to the AA, the RAA also requires that the adopted child and parent must be ordinarily resident in West Malaysia.65 Therefore, the RAA seems to negate the practice of inter country adoption. This is further emphasized by the fact that the applicant has to enclose the birth certificate of the child, if he is born in Malaysia or his traveling document if he is born outside Malaysia, for the purpose of registration66. And finally, the adopted child must not be a subject of an adoption order made under the AA.67 In order to determine whether the adoptive parent is qualified to adopt the child, the National Registration Department of Malaysia (NRD) will conduct an interview session. This is to examine the suitability of the applicant with the adopted child, the interest and welfare of the child as well as the ability of the applicant to bring up the adopted child. For this occasion, both applicant and the adopted child are required to attend the session.68 The Registrar would approve the application if he is satisfied with the application where the applicant is required to pay a registration fee of 30 ringgit.69 Different from the AA, adoption under the RAA is a mere registration for a legal adoption so as to prove that an adoption has taken place. The adoption would indirectly give the right of custody to the adoptive parents over the adopted child. Nevertheless, adoption would not render parental status over the adopted children. A child who is adopted under the RAA shall not gain the same status as the natural child of the adoptive parents in terms of his parentage and right to succession of the adoptive parent’s property after their death as given by the AA etc. Rights of adopted children are fully protected under the AA, but to a certain extent are limited under the RAA. For example, the registration of adoption under the RAA will be limited among others to provide benefits to the adopted children in education, application for identity card and passport70 and more importantly, the nationality or citizenship. The registration may also reduce the income tax of the adoptive parents as similar to adoption under the AA.71 The effect of the adoption under the RAA seems to comply with the concept of adoption recognized under Islamic Law which regards it as a means
65 Registration of Adoptions Act 1952, s. 10(3). 66 Kamaruddin Abd Ghafar, Prosedur Pengambilan Anak Angkat Dan Realitinya Di Malaysia (2002). 67 Registration of Adoptions Act 1952 s. 10(4). 68 See Registration of Adoptions Act 1952, s. 6(1)(a). 69 Registration of Adoptions Act 1952, s. 6(1). 70 Puan Sri Nurzan Mohd Wahie, Pemeliharaan Anak Angkat, Satu Panduan, MKKM, Kuala Lumpur (1997). 71 Kamaruddin Abd Ghafar. (2002) 167. Gender and Adoption: A Comparative Study of Bangladesh and Malaysia 15
of helping a child in need of family or protection72. As it is not in conflict with Islamic law, it is made applicable to and governs the Muslims who wish to adopt children in Malaysia. At the same time, the RAA extends its application to non-Muslims who wish to adopt children with limited rights. Perhaps, due to the above reasons also, public demand for adoption under the RAA is more compared to the AA. Based on statistics by National Registration Department (NRD), in 2006, about 4355 children were adopted under the RAA and 2192 children were adopted under the AA.73 In 2007, 4517 were adopted under the RAA and 2369 under the AA.74 While statistic in 2010 demonstrates that about 5626 children were registered for adoption through the RAA and 1,901 children were adopted through the AA.75 Meanwhile, in 2011, 6259 children were adopted under the RAA and 731 adoptions under the AA. These number of adoptions shows that adoption through the RAA is more compared to the adoption through the AA. The existence of the AA and the RAA as specific laws on adoption actually describes the importance of adoption in Malaysia as one of the means to protect children. In order to make sure that children are fully protected through adoption, government of Malaysia has come out with different law and policy with a view to balance with the need and preference of the adopters. This seems to make adoption a more effective means of child protection. This is proven especially by the effect of adoption under the AA that guaranteed full protection to adopted children and the number of adopters which is increasing under the RAA. Even though the RAA is specially framed to cater the Muslim parents who wish to adopt children in line with Islamic law, non-Muslims parents are also allowed to adopt children under the RAA. Law cases seem to prove that non-Muslims do adopt children under the RAA for example in the case of Re Loh Toh Met, (Decd), Kong Lai Fong & Ors vs. Loh Peng Heng76 and Yeap Chan Aik vs. Yeap Chan Hoe & Ors,77 where in both cases, a child was adopted under the RAA by Chinese family. Similarly, statistic by NRD shows that in 2008 about 3460 children were adopted under the RAA by Malays (commonly Muslims) and 215 children by Chinese, 250 children by Indian and 1047 by races other than Malays with the total of 4972.78
72 Puan Sri Nurzan Mohd Wahie. ( 1997) 171. 73 Jabatan Pendaftaran Negara, Laporan Tahunan (2006) 2. 74 Jabatan Pendaftaran Negara, Laporan Tahunan (2007) 31. 75 Jabatan Pendaftaran Negara, Laporan Tahunan (2010) 136. 76 [1961] MLJ 234. 77 [2000] 1MLJ 78. 78 Jabatan Pendaftaran Negara, Laporan Tahunan (2008) 32. 16 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Nevertheless, as regards the RAA, even though it complies with Islamic law (the Shari’ah),79 the provisions are not extensive to provide protection to Muslim adopted children to the fullest. This is because the RAA simply provides provisions on procedures and conditions of adoption. Instead, for a full protection of adopted children under the RAA, the RAA requires more detailed provisions for example on rights of adopted children adopted under the RAA and duties of the adoptive parents among others to custody and maintenance. Furthermore, Islamic rules and guidelines on adoption were not clearly outlined by the RAA. For example, Islamic principles that enjoin help, kindness and good treatment to adopted children.80 Failure to provide detailed provisions on effect of adoption under the RAA might also lead to misinterpretation and misunderstanding. Therefore, it is believed that Muslim children can be better protected if a new Muslim Adoption Act is introduced incorporating the provisions of the RAA and the Islamic principles and recommendation for adoption. Furthermore, this is in line with the constitution of Malaysia that provides that Islam is the religion of the Federation of Malaysia.81 Other Laws that Govern Muslims Other than the RAA, the law that governs Muslims in adoption, is the Shari’ah, the Islamic law (Hukum Syarak)82 in its ordinary form and the law that is embodied in the Islamic Enactments of various States in Malaysia or Parliamentary Act that legislates Islamic Family Law for example the Islamic Family Law (Federal Territories) Act 1984 (the IFLA).83 Effect of Registration of Adoption in Malaysia The Registration of Adoptions Act considers Islamic law to make it possible for Muslims to legally adopt children. The Adoption Act does not apply to Muslims for two main reasons: Accordingly, under the Registration of Adoptions Act, the fact that the child is adopted is not hidden. Although an adoption under the Registration of Adoptions Act does require the surrender of the original birth certificate, the original birth
79 ibid. 80 ibid. 81 See Federal Constitution of Malaysia, art. 3(1). 82 Hukum Syarak is defined under the Islamic Family Law (Federal Territories) Act as Hukum Syarak according to the Shafie Mazhab, or according to one of the Mazhab Maliki, Hanafi or Hanbali. See s.2, Act A1261. 83 Act 303. In general, personal and family law relating to Muslims in Malaysia is governed by Islamic law which is administered in the Syariah Courts. See Ahmad Ibrahim, The Administration of Islamic Law in Malaysia, (2000, IKIM, Kuala Lumpur) 227. See also Farid Sufian Shuib, ‘Powers and Jurisdiction of Syariah Courts in Malaysia’ (2003, Kuala Lumpur) Malayan Law Journal 20 – 26. Gender and Adoption: A Comparative Study of Bangladesh and Malaysia 17
certificate is replaced with a certificate of adoption. This contrasts with the Adoption Act where the birth certificate is re-issued to the adoptive parents. Accordingly, the Registration of Adoptions Act is silent on the rights of inheritance. The result is that a child adopted under the Registration of Adoptions Act inherits from the birth parents and not the adoptive parents. Muslim adoptive parents can however use their discretion to write up 1/3 of their estate as a gift (Hibah) for their adopted child. In contrast, a child adopted under the Adoption Act inherits from the adoptive parents and not the birth parents. The Registration of Adoptions Act is noticeably silent on the legal effect of the registration, especially when compared with section 9 of the Adoption Act, which provides that a court order for adoption deems the child to be born of the adoptive parents in lawful wedlock. It is, however, arguable that save for the issue of inheritance and the child’s birth identity, a child adopted under the Registration of Adoptions Act enjoys the same rights as a birth child. After all, the intention of the Registration of Adoptions Act is to allow the adoptive parents to take care of the adopted child as their own. Application for Registration of Adoption in Malaysia The process of adoption under the Registration of Adoptions Act is commonly referred to as “departmental adoption” as the application is made to and processed by the National Registration Department. According to Section 6 of the Registration of Adoptions Act, the child must be in the custody of the adoptive parents for at least two years and express consent from the birth parents is required (although the Registrar of Adoptions has the discretion to dispense with consent in the best interests of the child). The Registrar of Adoptions has the power to summon and examine witnesses for the purpose of deciding whether to register an adoption. Typically, the Registrar will interview the adoptive parents and require the parents to obtain a report from the welfare department on the adoption. In the event the application is allowed, an entry will be made in the Registration of Adoptions Register and a certificate of adoption will be issued. Citizenship of Adopted Children in Malaysia Both the Adoption Act and the Registration of Adoptions Act are silent on the issue of citizenship for adopted children. The unfortunate result is that where the child’s original immigration status is uncertain or unknown, the National Registration Department will declare the child as a “permanent resident” or “non-citizen” on the re-issued birth certificate or the certificate of adoption. The National Registration 18 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Department will disregard the fact that the adoptive parents may be Malaysian citizens. In such circumstances, a judicial review application may be filed to challenge the decision of the National Registration Department for failing to recognise the adopted child’s citizenship as Malaysian. The article on the case of Lee Chin Pon & Anor vs. Registrar-General of Births and Deaths, Malaysia [2010] (unreported) reports how such a judicial review application was allowed and the adopted child given Malaysian citizenship.84 Reform of the law on custody and guardianship must take into account contemporary societal phenomena and thus reflect suitable solutions. Many rules on the issues of custody and guardianship are not provisions that are stipulated directly from the Qur’an, but are derived through Islamic scholarly processes. Thus, contemporary Muslim jurists must not be apprehensive about modifying these rules and should not feel hindered from creating alternative rules that are applicable to modern-day situations through similar intellectual methods. They must feel encouraged, for instance, to use the source methodologies of deriving legal rulings of Fiqh in the Syariah. One way is through Ijtihad, which may be described as a “creative but disciplined intellectual effort to derive legal rulings from [the Qur’an and Hadith] while taking into consideration the variables imposed by the fluctuating circumstances of Muslim society” [emphasis added].85 Concluding Analysis with Regard to Adoption in Malaysia The above discussion shows that adoption serves as a means of child protection especially for children who are deprived of the right to live in a family environment or at least a good and conducive family life. Basically, the law and policy on adoption in Malaysia are adequate as they are able to accommodate both Muslims and non-Muslims in adoption. Nevertheless, since adoption may promise a happy family life to the adopted child, it is suggested that provision governing adoption especially that is done under the RAA, should extend to detailed outline of the adopted child rights and duties of the adoptive parents once an adoption is affected or registered. For example, rights to custody, maintenance and good treatment from the adoptive family. Similarly, more assistance to adoption should be provided. As regards adoption among the Muslims in Malaysia, it is further suggested that a new statute that specially governs the Muslims is enacted. This is due to the fact that, to guarantee full protection to adopted children, several Islamic rules under the Shari’ah should
84 Please see: http://www.mahwengkwai.com/citizenship-for-adopted-children-a-malaysian- perspective/. 85 Taha Jabir al Alwani (1993). Gender and Adoption: A Comparative Study of Bangladesh and Malaysia 19
be included in the new statute. Proposal for having a Muslim Adoption Act should be seriously considered.108 As adoption amongst Malaysians has been practiced for a long time, it is now timely to introduce a specific Act that governs adoption among Muslims. This Act will provide details on proper guidelines for a Muslim to adopt a child in line with the Islamic teaching (Shari’ah). The rules will include provision on adoptive parent duties to care and maintain the adopted child and provide him with a good treatment as well as rules on socialization and inter action among the members of adoptive families. These rules were not provided by the RAA, furthermore, even though they are part of the Shari’ah, they are not clearly written and stated in such statutes on adoption. It is believed that this new Act will better protect children in Malaysia through adoption. Parents who are considering adopting a child are advised to carefully consider the options available, always keeping in mind the best interests of the child. If possible, we generally advise parents to obtain an order for adoption under the Adoption Act. It cannot be said that the Holy Quran Prohibit adoption amongst Muslims in absolute terms. And the Custom of adoption amongst Muslims has been held also the Valid Muslim Personal Law (Shariat) Application Act, 1937 does not abrogate the custom of adoption prevailing amongst Muslims. It is evident that the role of custom amongst the Muslims, unlike the Hindus, is practically non-Consequential. A custom where is in derogation of Muslim Personal Law, is of no effect. Accordingly, the status of an adopted son, even when it is fully established under a custom, is no better than Stranger, because he does not become ipso facto an heir of his deceased adoptive father. Realizing the relevance of the institution of adoption, especially in the case of Childless Couples, the customarily adopted son needs a better deal in the realm of Muslim Personal Law, which can be remedied and improved only through statutory intervention. Concluding Analysis with Regard to Adoption in Bangladesh Adoption in Bangladesh is a taboo as it is not permitted in Islam. But there is another concept of Islamic Adoption for life or Kafala. Where the child is adopted without any change of status or inheritance is not provided to him but he is maintained for life and can be given gift or Hibah. The style of Islamic adoption is similar to a guardianship. If the guardian considers, the child may get ownership of the property through Hibah/ donation/ gift/ will etc,
108 This proposal was made in Bengkel Hak Dan Kedudukan Anak Angkat Mengikut Syariah Dan Perundangan Malaysia, 2002, organized by Hawa Negeri Selangor, Nazri & Nazri Associates Sdn. Bhd., Massa magazine and YADIM. 20 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 but no adopted or orphan child under the Muslim law can claim inheritance in Bangladesh like Hindus. So, adoption is prohibited or not allowed under Muslim Laws of Bangladesh but it is practically not impossible as any person can apply to the Court or by Law (Guardianship Act 1890) may become guardian of the body and property of a child. Interestingly, a significant number of guardianship cases are filed in the Family Courts, especially in Dhaka, for guardianship of children abandoned by their biological parents. Couples not having any issue of their own generally file this type of case, as an alternative to adoption. It appears that the scope for such applications has opened due to the manner in which Section 7 of the Guardian and Wards Act, 1890 is being construed. Liberal interpretation and application of this provision has allowed individuals within a broad category to file such guardianship applications. Such practices can be seen as an example of creative application and extension of existing legal provisions to cover real needs, in the absence of express provisions to deal with such matters. However, it needs to be mentioned that these processes do not amount to adoption per se, because they do not provide the child with the same legal security or rights. Muslim personal law as applied in Bangladesh does not yet permit adoption as in Malaysia. We consider that a lasting solution to this issue would be to enact a separate secular law on adoption to fill up the gap that currently exists in this area.109 This issue of adoption can be solved by making people aware about Kafala i.e. adoption for life as provided in Muslim law without the rights of inheritance and name of the adopted parents and provide good life to plenty of children who are in need.
109 Nowrin Tamanna, et.al, Muslim Women’s Rights under Bangladesh Law: Provisions, Practices and Policies Related to Custody and Guardianship (2011) The South Asian Institute of Advanced Legal and Human Rights Studies (Sails) 14. Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence and Diversity in Corporate Governance Regulations
Md. Khurshid Alam
1. Introduction A financial reporting system supported by good governance, high quality standards and sound regulatory framework is the key to economic development of a country. Financial reporting system, providing essential financial information about the company to its shareholders and other stakeholders, needs to be reliable, free from bias and should enable comparison on the basis of common benchmarks. This, in turn, necessitates an appropriate financial reporting system that incorporates sound accounting principles and reflects a true and fair view of the financial health of the company while ensuring legally enforceable accountability. In a globalized world, such a system should also be uniform across borders so that there is comparability on the basis of common benchmarks. This article talks about the reporting and disclosure of companies in the United Kingdom and Bangladesh. The UK reporting and disclosure includes auditor‟s report, director‟s report, auditor‟s report, on director‟s report and statement in the prospectus etc. Likewise, Bangladesh does have a reporting system only limited to auditor‟s report which is made available at the members‟ meeting annually. Such comparative analysis leads the article to make certain points as policy recommendations for framing better corporate governance regulations. 2. Reporting and Disclosures Disclosure means the act of releasing all relevant information pertaining to a company that may influence an investment decision. It also means reporting of all positive and negative information about the corporate organization. Its objective is to enable creditors and investors to draw an informed conclusion about the firm's financial position. However, reporting and Disclosures system varies from company to company. Given its usefulness, the OECD suggests for provision for disclosing and communicating all material facts (financial and non-financial) about the corporate bodies. It requires the corporate governance framework to ensure timely and accurate disclosures on all matters regarding the organization. Annual audits by independent auditors are also required in this context.
Professor, Department of Law, University of Dhaka. 22 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
3. Reporting and Disclosure in the UK 3.1. Scope and rationale of the annual reporting requirement On the basis that “forewarned is forearmed” the fundamental principle underlying the Companies Act has been that of disclosure. If the public and the members were enabled to find out all relevant information about the company, this, thought the founding fathers of our company law, would be a sure shield. The shield may not have proved quite strong as they had expected and in more recent times it has been supported by offensive weapons. Basically, however, disclosure still remains the basic safeguards on which the Companies Act pins their faith, and every succeeding Act since 1862 has added to the extent of the publicity required, although, not unreasonably, what is required varies according to the type of company concerned. Not only may disclosure by itself promote efficient conduct of the company‟s business, because the company‟s controllers (whether directors or large shareholders) may fear the reputational losses associated with the revelation of incompetence or self-dealing, but the more interventionist legal strategies, going beyond well-informed about the company‟s position. For example, those in a position to enforce the company‟s rights against directors for breach of duty or to bring claims of unfair prejudice or shareholders holding rights to remove directors, if rational persons, will not turn their minds to the exercise of those rights unless they thing there are grounds for so doing. This, disclosure is the bed-rock of company law. Those who introduced this annual reporting obligation in the nineteenth century probably saw it as aimed at informing two groups of people: the shareholders of the company, so that they could assess whether the company‟s management was doing an acceptable job; and the creditors of the company, whose claims are confined to the company‟s assets (except in the rare case of an unlimited company) and o have a natural interest in the state of those assets. However, in modern view would probably include two further groups as having interest in this matter. First, at least with companies whose securities are traded on a public market (usually a “stock exchange”), investors will be interested in the company‟s reports and accounts. The term “investor” certainly includes those who are already shareholders in the company, but it goes more broadly than that so as to embrace those who are contemplating investment in it but are not yet shareholders further, the term encourages us to distinguish between the two types of decision an existing shareholder might make after reading the account reports: seeking to exercise governance rights (for example, by removing directors) or selling (or buying) shares in the company. Finally, an investor might be a person who has lent or is contemplating a loan or someone contemplating buying or selling debentures (debt securities) issued by the company. Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 23
One can conclude that, where there is a public market in the company‟s equity or debt securities, the company‟s annual reports and accounts will be avidly read, not only by existing shareholders and creditors, but by a wider investing public. In fact, a major event in the annual cycle of a publicly traded company is the point at which it makes a preliminary announcement of its financial results for the previous year, the full details of which will be included in its annual statutory accounts. Such announcements—and the later full accounts and reports, though they are somewhat stale news by then—are pored over by analysts, whose task it is to generate advice for investors. Thus, the statutory accounts and reports are used by a wider investment community than just the shareholders, in the case of publicly traded companies. As we shall see, the issue of corporate or auditor liability where the company‟s annual statements are negligently misleading but are relied upon for the purpose of taking investment decisions has been a contentious one. In this way, the annual reports and accounts have moved beyond company law to become part of securities or capital markets law as well. Since this is a development which concerns only the relatively small number of companies whose securities are traded on public markets, it is not surprising that further developments in the disclosure requirements applying to those companies have taken the form of rule targeted explicitly at such companies. In some cases, such additional rules are to be found in the Companies Act. For example, the directors‟ remuneration report, which is part of the annual reporting obligation of the board, is confined to “quoted” companies, but the rules governing it are to be found in the Companies Act 2006. We shall see a similar development in relation to the “enhanced” business review later in this Chapter. Small companies Just as there has been differentiation in the disclosure rules applying at the “top” end of the spectrum of companies, so also that phenomenon can be observed at the “bottom” end of the spectrum. There are carve outs from the full Companies Act disclosure requirements for “small” companies, both in terms of what has to be reported and, as we shall see in the next Chapter, whether it has to be verified by audit. A company which qualifies as small and is not excluded by the provisions discussed below is subject to the “small companies regime” for the accounts and reports, which is less stringent than that for larger companies. The tests for small companies relate to the economic size of the company, as makes sense for reporting purposes, rather than to the number of shareholders, which is a better test for governance purposes. The criteria concern the company‟s turnover (not more than £6.5 million), balance sheet total, i.e. its assets (not more than £3.62 million), and number of employees 24 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
(not more than 50).1 To qualify as small the company must meet two of the criteria; it does not need to meet all three of them. However, the company does not qualify as small unless it meets two of the three criteria in the financial year in question and in the previous financial year (unless the financial year in question is the first one). By way of amelioration of the two-year requirement it is provided that, having qualified as small, the company does not lose that status if it fails to meet the criteria in the first year after it last met the criteria; and it will also hang on to its status if in the following year it again meets the criteria.2 The purpose of these rather complex rules is to stop the company drifting in and out of the status for successive financial years. A company which meets the criteria nevertheless cannot count as a small company if it is a public company or carries on insurance, banking or fund management activities or is a member of a group which contains an “ineligible” member.3 The thought here appears to be that such companies are engaged in sufficiently sensitive activities that full disclosure is required, especially for the benefit of the relevant regulators, and, in the case of public companies, the fact that they are free to offer their shares to the public suggests that a full financial record should be available. Medium-sized companies Somewhat misleadingly placed some eighty sections away from the provisions on small companies are to be found in the “supplementary provisions” to Part 15 the provisions defining a medium-sized company. The same type of criteria are used as in the case of small companies but they have a higher value: turnover not more than £25.9 million, balance sheet total of not more than £12.9 million and not more than 250 employees.4 The same two-year rule applies, with its ameliorations, as in the case of small companies,5 and there are similarly-motivated, but not identical, exclusions, amongst which, crucially, are public companies.6 There is a similar definition of a medium-sized group to that used for a small group, though, of course, with higher values attached to the criteria.7 3.2. The Annual Accounts Accounting records The statutory provisions relating to the annual accounts begin by imposing on the company a continuing obligation to maintain accounting records.8 This is logical enough, because, although these records are not open to inspection by members or
1 [UK] Companies Act 2006 S. 382(3)-(6) 2 Ibid. S. 382(1), (2). 3 Ibid S. 384(1). 4 Ibid S. 465(3). 5 Ibid S. 465(1). 6 Ibid S. 467(1). 7 Ibid S. 466. 8 Ibid Ss. 386-389. Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 25
the public, unless they are kept it will be impossible for the company to produce verifiable annual accounts. Hence, s. 386 provides that every company shall keep records sufficient to show and explain the company‟s transactions, to disclose with reasonable accuracy at any time its financial position and to enable its directors to ensure that any balance sheet and profit and loss account will comply with the provisions of the Act or the IAS Regulation. These general obligations are added certain specific requirements. The records must contain day-to-day entries of all money received or expended and of the matters to which that related and a record of the company‟s assets and liabilities.9 If the company‟s business involves dealing in goods, the records must also contain a statement of stock held at the end of the financial year statements of stock-takings from which that was prepared, and, except in the case of goods sold in the ordinary course of retail trade, statements of all goods sold or purchased, in sufficient detail to enable the other party to be identified.10 None of these specific requirements seems to envisage any particularly sophisticated form of business activity. For any but the most basic business probably the more important requirement are the general ones. 3.3. The Directors’ Report The director‟s report, to accompany both the individual and group accounts, has long been a statutory requirement in the United Kingdom, and it is now a requirement of the Fourth and Seventh Directives.11 In recent years, it has been the subject of important legislative expansion, in two years. First, the directors of quoted companies are required to produce a directors‟ remuneration report (DRR). Secondly, the directors‟ report (DR) has become the focus of a new requirement for the company‟s annual statements to include forward-looking “soft” data to accompany the backward-looking, “hard” financial data contained in the accounts. This section of the report is termed the “business review” and is sometimes referred to as “narrative” reporting, to distinguish it from the numbers-based accounts. The introduction of this requirement12 was accompanied by moments of high farce, as the Government first introduced, then repealed, then partially re-introduced the more far-reaching recommend which the CLR had made for an “operating and financial review.” Content of the directors’ report other than the business review First, however, we turn to the requirements for the DR other than the business review. The statute requires the report to list those who were directors of the company at any time during the year and the company‟s principal activities in the
9 Ibid S. 386(3). 10 Ibid S. 384(4). 11 Ibid s. 145 12 Ibid S. 417 26 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 course of the year.13 It must also state the amount the directors recommend to be paid by way of dividend to the shareholders.14 However, this latter requirement does not apply to companies entitled to the “small company exemption.” Presumably, this because in small companies public disclosure of dividend recommendations may reveal the income of easily identifiable individuals, for example, where the directors are the only shareholders. This exemption is available not only to small companies falling within the small companies regime for the accounts but also to small companies which would so fall but for the fact that they are members of a group of companies which contains an ineligible member.15 Thus the relaxations for small companies in relation to the DR go somewhat wider than in relation to the accounts. None of the above is very demanding. However, the directors‟ report is subject to further requirements as to its contents, those requirements very much reflecting the policies underlying the notes to the accounts which we examined above. Thus, the policy of using disclosure in the accounts to further strategies developed elsewhere in the legislation, either as a result of domestic or Community reform impulses, is well to the fore. The DR must contain a statement by the directors about information provided to the company‟s auditors, as a way of furthering the effectiveness of the audit. As a result of amendments to the Fourth Directive in 2006, a company whose securities are admitted to trading on a regulated market must include a corporate governance statement in its annual report. That corporate governance statement must deal, amongst other things, with the company‟s control structures, compliance with the relevant corporate governance code, and contain a description of the company‟s internal control and risk management systems in relation to financial reporting. Many further requirements for the DR are to be found in Schedule 7 to the Accounts Regulations 2008, which is divided into a number of parts, some of which require information which goes far beyond the purely financial. Thus Part 3 requires information to be given about the employment, training and promotion of disabled persons. 3.4. The business review Rationale and history Section 417 requires the DR of all companies, other than those benefiting from the small companies regime, to contain a business review (BR). The requirement for a BR reflects the perception that shareholders and investors need more than financial data to understand fully the prospects of the company. They need also to be able to gauge the quality of the company‟s relationships with those upon whose
13 Ibid S. 416 (1), (2) 14 Ibid S. 416(3) 15 Ibid S. 416(3) Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 27
contributions or cooperation the success of the company depends (sometimes called “stakeholders”). For stakeholders, as well, this information may be useful, even if company law itself gives them no particular platform from which to take action on the basis of the information. The BR required by section 417 varies in its intensity according to whether the company producing it is quoted or not. If it is not, the section‟s requirements track those of Article 46(1) of the Fourth Directive and 36(1) of the Seventh Directive, as amended in 2003. If it is, the requirements for the BR go further, but not as far as recommended by the CLR in its proposals for an Operating and Financial Review (OFR) and as initially implemented by the Government. The sequence of events whereby the OFR arrived, but then disappeared, and was ultimately replaced by an “enhanced” BR is a dramatic one in an area where drama is normally in short supply. It is possible to detect in the reports of the CLR two main reasons underlying the proposal for the requirement that major companies produce an OFR. The first was based on a re-evaluation of the information needed to assess the position and prospects of many companies by adding to the historical, financial information, already required to be reported. The second, less clearly articulated, was the need to provide a check on the discharge by directors of their “inclusive” duty to promote the success of the company for the benefit of its members but on the basis of taking into account the company‟s need to foster its relationships with stakeholders, its impact upon communities affected and environment and reputational concerns. Thus, there was a close link between the shareholder-centered statement of directors‟ duties recommended by the CLR and the desire to provide some mechanism whereby its “enlightened” elements meant something significant in practice and were not self- serving. That mechanism was to be disclosure via OFR. Operating and Financial Review and Business Review compared The central question about the section is, how much of the OFR does it reinstate for quoted companies, which are subject to the enhanced requirements? It is suggested that a good deal, but fat from all, of the substance of the OFR requirements is applied to quoted companies, and that the quality of what is disclosed under the BR may be less than would have been the case with the OFR. To establish this one needs to analyze the section, to which we now turn. Section 417(2) states that the purpose of the BR is to “inform members of the company” and to help them assess whether the directors have performed their duty under section 172 of the Act to promote the success of the company for the benefit of its members. Although placing the emphasis on the members ties in well with the shareholder-centered focus of section 172, we have seen that the CLR proposed that 28 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 the OFR should not be so narrowly targeted, though the OFR as implemented did not reflect this suggestion. Section 417 requires all companies (other than those able to benefit from the small company exemption) to produce a business review containing a fair review of the company‟s business and a description of the principal risks and uncertainties facing it—or them in the case of group accounts.16 The review required is “a balanced and comprehensive” analysis of the development and performance of the company‟s business during the financial year and of its position at the end of the year.17 To the extent that it is necessary for an understanding of the business the review must make use of “key performance indicators,” both financial and non-financial. This is an attempt to inject some quantitative analysis into what might otherwise be a set of generalities. These parts of the section simply tract Community law, whose requirements are indeed rather general. For quoted companies the BR must deal with further matters “to the extent necessary for an understanding” of the company‟s business,18 with KPIs where necessary. The phrase in quotes does not give the directors a discretion whether to deal with a matter: it simply recognizes that not all the additional matters will be relevant to the businesses of all companies, though few will not have to comment, for example, on the employees. The list of additional matters potentially to be commented on is: (a) “the main trends and factors” likely to affect the future of the company‟s business; (b) The impact of the company‟s business on the environment; (c) The employees; (d) Social and community issues; (e) Persons with whom the company has contractual or other arrangements which are essential to the company‟s business, unless in the opinion of the directors such disclosure would be seriously prejudicial to those persons or to the public interest.19 None of these provisions requires disclosure of impending developments or matters in the course of negotiation if, in the directors‟ opinion, disclosure would be seriously prejudicial to the interests of the company.20 This list in fact covers most of what was in the OFR, with the exceptions of capital structure, treasury policies and liquidity, though a small part of even this will be covered by the corporate governance statement which is now required. What is most noticeable in a comparison of the OFR Regulations and section 417 is the greater
16 Ibid S. 417 (3), (9). 17 Ibid s. 417(4) 18 Ibid S. 417(5) 19 Ibid S. 417(5)(c) 20 Ibid S. 417(10) Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 29
generality (and thus lesser detail) with which the BR requirements are set out. This is the case even though in relation to items (b) to (d) above the statute requires information about any policies the company has on these matters and their effectiveness.21 This raises the risk that the BR will be productive of self-serving and vacuous narrative rather than analytical material which is of genuine use to those who read the report. There are two traditional ways of dealing with this issue. One is to require the BR to be audited. The risk with this approach is that it will take away from the desirability of the OFR/BR constituting the directors‟ view of the business rather than that of its auditors. Consequently, the audit requirement for the directors‟ report is simply that the auditors certify that the DR is consistent with the accounts.22 Liability of misstatements in the directors’ reports This is not a matter with which the Act has previously dealt specifically. There are two areas of potential liability which need to be considered. First, there is liability on the part of the directors to the company. Secondly, there is liability on the part of the directors or the company to third parties, including investors in the market. The issue was previously left to the law of directors‟ duties or the general law on misstatements, whether negligent or fraudulent. However, the introduction of the BR prompted the introduction of specific provisions, now to be found in section 463, whose aim is either to remove these potential liabilities or to confine them to fraud. There is a case for providing a “safe harbor” in relation to directors‟ forward-looking statements, on the grounds that no one can predict the future with certainty and if directors were to be exposed to litigation, or the threat of it, whenever their forward- looking statements turned out to be untrue, they would be very cautious in the statements they made, which caution might undermine the value of the BR to its users. In fact, the OFR Regulations contained no such provision, whilst section 463, by contrast, goes well beyond forward-looking statements, apparently on the grounds that it would be difficult to distinguish them from other types of statement. The section applies to the entire content of the DR and of the DRR. Without section 463, the directors‟ liability to the company in respect of statements in the DR or DRR would most obviously be based on the general duty of directors to take care and exercise skill in the performance of their duties. As we have seen above, that duty is now put on an objective basis, which creates at least the possibility of suit for damages based on negligent preparation of the DR or DRR on the part of the directors. The effect of section 463 is to exclude directors‟ liability in negligence to the company entirely. The director is so liable in respect of untrue or misleading statements in the reports or omissions from them only if the director has
21 Ibid S. 417(5)(b) 22 Ibid S. 496 30 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 been fraudulent.23 Fraud is defined in the way it is in the common law of deceit: the maker of the statement must know it is untrue or misleading or be reckless as to whether this is the case. Thus, a genuine belief in the truth of the statement, no matter how unreasonable, will save the director from liability. If the directors‟ liability to the company is preserved in the case of fraud, their liability to other persons is excluded entirely, even in the case of fraud.24 Moreover, the liability which is excluded is the liability of “any person,” not just of the directors, provided it is not a liability to the company. Thus, investors cannot impose liability on the company in respect of unsuccessful investment decisions which are based on inaccurate information in the DR or DRR. It is in fact very unclear whether, without the section, liability in negligence towards investors on the part of the company or the directors would exist under the general law. The issue has been tested at the highest level only in respect of auditors, where, as we shall see, the starting point of the courts is one of non-liability. The exclusion of liability towards third parties in the case of fraud is more questionable, since the common law does impose liability in principle for fraud and it is unclear why fraud should be condoned. In fact, however, the exclusion of liability to third parties is qualified by the provisions of section 90A of FSMA 2000, applying to companies with securities traded on a regulated market, which imposes liability in fraud in relation to certain statements required of the company by the Transparency Directive, which include the DR. Section 463 excludes the third-party liability of “any person,” but it is not clear who might be liable beyond the directors and the company in respect of errors in the DR or DRR. A number of professionals may be consulted and have a hand in the compilation of the DR and DRR but they are not normally identified in those reports as responsible for particular parts of it and thus as having particular statements attributed to them, since both reports are the reports of the directors. However, if this did occur, section 463 would protect these persons. The auditors are required to report on the consistency of the DR with the accounts and to audit parts of the DRR, as we have seen, but the auditor‟s report is a separate document and so would not be covered by section 463. 3.5. Approval of the Accounts and Reports by the Directors That the DR and DRR are the reports of the directors is clear from their names, let alone the provisions of the Act.25 The accounts as well are the product of the directors: the directors must draw them up,26 although in this case, because of the role played by the auditors in verifying the accounts and, in practice, in drawing them up, they are often misconceived as the auditors‟ accounts. With the collapse of
23 Ibid S. 463(2), (3) 24 Ibid S. 463(4),(5) 25 Ibid Ss. 415 & 420 26 Ibid Ss. 394 and 399 Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 31
the Enron Company and others reviewed emphasis was placed on the directors‟ responsibility for the accounts. At Community level the Fourth and Seventh Directives were amended so as to require directors to “have the collective duty to ensure that the annual accounts, the annual report…are drawn up” in accordance with the Directive or the IAS Regulation. The Government took the view that this requirement was met by the existing domestic provision that the annual accounts must be approved by the directors and signed on behalf of the board by a director.27 If the directors approve accounts that do not comply with the Act or the IAS Regulation, every director who knows that they do not comply or is reckless as to whether or not they comply and who fails to take reasonable steps to secure compliance or to prevent the accounts being approved is guilty of an offence.28 The duty on the directors to produce the DR and DRR is likewise backed by criminal sanctions: failure to take reasonable steps to secure compliance with the duty to produce the reports is a criminal offence on the part of each of the directors.29 The Member States are also required to ensure that their “laws, regulations and administrative provisions on liability” to the company apply to the directors who breach their collective duty. This provision does not require the Member States to have any particular liability regime in place. In the case of the United Kingdom this requirement is met presumably through the general law on directors‟ duties and, in the case of the DR and DRR, by the preservation of the directors‟ liability in fraud to the company. 3.6. The Auditor’s Report The final document that has to accompany the annual accounts is the auditors‟ report thereon—assuming the company is one which is required to have its accounts audited or has chosen to do so. This has to be addressed to the company‟s members30 and to state whether in the auditors‟ opinion the annual accounts have been properly prepared in accordance with the Act or the IAS Regulation, as appropriate and, in particular, whether they give a true and fair value.31 The report must also state whether the auditors consider that the information given in the DR is consistent with that in the annual accounts32 and, in the case of the auditable part of the DRR, state whether it has been properly prepared.33 The auditors‟ report must state the names of the auditors and be signed by them.34 However, those names need not appear on the
27 Ibid S. 414 (1) 28 Ibid S. 414 (4),(5) 29 Ibid s. 415(4), 420 (2) 30 Ibid S. 495(1) 31 Ibid S. 495(3) 32 Ibid S. 496 33 Ibid S. 497 34 Ibid S. 503 32 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 published copies of the report or on the copy filed with the Registrar if the company has resolved that the names should not be stated on basis that there are reasonable grounds for thinking that publication would create a serious risk of violence to or intimidation of the auditor or any other person, and has provided that information instead to the Secretary of State.35 3.7. Revision of Defective Accounts and Reports Despite the requirements for director and auditor approval, noted above, it is not impossible that accounts and reports will be produced by the company which are later discovered to be incorrect. Until the passing of the Companies Act 1989 there were no statutory provisions for revising incorrect accounts and reports. However, it has never been doubted that if directors discover such defects, they can and should, correct them. Section 454 makes it clear that the directors may revise the accounts and reports on a voluntary basis. Where the accounts have not yet been sent to the Registrar or the members, the directors have a pretty free hand as to revisions, but is either of those events has occurred, as is likely, the corrections must be confined to what is necessary to bring the accounts and reports into line with the requirements of the Act or the IAS Regulation.36 Regulations made under the section provide that the revised accounts or reports become, as nearly as possible, the reports and accounts of the company for the relevant financial year, to which the other provisions of the Act apply. For example they will be subject to audit. More significant are the statutory powers to compel revision of defective accounts. The Secretary of State has power to apply to the court for a declaration that the accounts or directors‟ report (but not, it seems, the DRR) does not comply with the Act or the IAS Regulation and for an order that it be brought into line, with consequential directions.37 The court may order the costs of the application and of the production of the revised accounts to be borne by the directors in place at the time of the approval of the accounts or report, unless a director can show that he or she took all reasonable steps to prevent approval, though the court also has power to exclude from liability a director who did not know and ought not to have known of the defects.38 Notice of the application and of its result must be given to the Registrar.39 However, in practice this is not an activity the Secretary of State undertakes. There is power under section 457 for authorization to make applications to the court to be conferred upon persons appearing to the Secretary of State “to have an interest in,
35 Ibid S. 506 36 Ibid S. 454(2) 37 Ibid S. 456 (1)-(3) 38 Ibid S. 456 (5), (6) 39 Ibid S. 456 (2), (7) Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 33
and to have satisfactory procedures directed to securing, compliance by companies” with the Act and the IAS Regulation and “to have satisfactory procedures for receiving and investigating complaints” about annual accounts and directors‟ reports and otherwise to be “fit and proper.” Such authorization has been conferred on the Financial Reporting Review Panel (“FRRP”),40 an operating body of the Financial Reporting Council (“FRC”). In practice, the task of dealing with defective reports is discharged by FRRP, rather than by the Department, except in relation to small companies. The FRRP has statutory authority to require the production of documents, information and explanations if it thinks there is a question-mark over the compliance of a company‟s accounts or report with the Act or IAS Regulation.41 It must keep the information received confidential, except for disclosure to a list of approved recipients (relevant Government Departments and Regulators).42 The FRRP has been criticized in the past for being reactive, i.e. acting only on complaints or media revelations that a particular set of accounts is defective rather than checking or investigating on its own motion. Partly because of EU pressure to produce equivalent mechanisms in the Member States for the enforcement of international accounting standards, the FRRP agreed in 2002 to adopt a proactive review policy, though it has not had to resort to a court order to secure the necessary changes, a threat of an application being enough. With regard to companies with securities traded on a regulated market, the obligation to secure compliance with the reporting requirements of such companies (which include but extend beyond the annual reports and accounts) is apparently allocated by Community law to the Financial Services Authority, but the relevant Directive permits the FSA to delegate the tasks conferred upon it. Accordingly, the FRRP has been authorized by the Secretary of State to keep under review not only the accounts and reports required by the Act but also those required to be produced by companies whose securities are traded on regulated markets under the provisions of Part 6 of the Financial Services and Markets Act 2000. In this case there is an obvious need for close liaison with the Financial Services Authority. The FRRP‟s under a duty to report its findings to the FSA in appropriate cases and the FSA may expand the FRRP‟s remit. 3.8. Filing Accounts and Reports with the Registrar The statutory requirement to produce accounts and reports would be of little use if there were no provisions for the information so generated to reach the hands of those
40 Companies (Defective Accounts and Directors‟ Reports) (Authorized Person) and Supervision of Accounts and Reports (Prescribed Body) Order 2008 623. 41 [UK] Companies Act 2006 S. 459 42 Ibid Ss. 460-462 34 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 who might make use of it. This is done in two ways under the Act: circulation to members (discussed below) and delivery of the accounts to the Registrar.43 By delivery to the Registrar, the accounts and reports become public documents. Speed of filing A source of complaint in the past has been the length of the gap between the end of the financial year and the date laid down for filing the accounts and reports with the Registrar. The CLR thought that modern technology permitted speedier filing than had been required in the past and recommended that the period be reduced from seven to six months for public companies and ten to seven for private companies. Section 442 implements the former reform but only marginally reduces the private company period (to nine months) with is a pity.44 For public companies whose securities are traded on a regulated market the period for publication of the annual accounts and reports is four months from the end of the financial year, though the core elements in the accounts may have been made available earlier through a preliminary public announcement of the results. A linked source of complaint has been non-compliance with the filing requirement, though the UK‟s record in this area is superior to that of some Member States of the Community. The formal sanctions are criminal liabilities on the directors and civil penalties on the company. If the filing requirements are not complied with on time, any person who was a director immediately before the end of the time allowed is liable to a fine and, for continued contravention, to a daily default fine, unless the director can prove that he took all reasonable steps for securing that the accounts were delivered in time.45 Furthermore, if the directors fail to make good the default within 14 days after the service of a notice requiring compliance, the court, on the application of the Registrar or any member or creditor of the company, may make an order directing the directors or any of them to make good the default within such time as may be specified and may order them to pay the costs of and incidental to the application.46 To these criminal sanctions against directors, the Act adds civil penalties against the company.47 The amount of the penalty is set by regulation. The amount of the penalty, recoverable by the Registrar, varies according to whether the company is private or public and to the length of time that the default continues; the minimum being £150 for a private company and £750 for a public company when the default is for not more than one month, and the maximum £1,500 for a private and £7,500
43 Ibid S. 441 44 Ibid S. 442 deals with some exceptional cases as well. 45 Ibid S. 451 46 Ibid S. 452 47 Ibid S. 453 Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 35
for a public company when the default exceeds six months. There are obvious attractions in affording the Registrar an additional weapon in the form of a penalty recoverable by civil suit to which there is no defense once it is shown that accounts have not been delivered on time. Presumably, the thought is that civil sanctions on the company will put pressure on shareholders to intervene and secure compliance on the part of the directors, but it is not clear how effective this mechanism is. It may be that the shareholders simply lose profits as well as suffer from a failure on the part of the directors to perform a duty intended to protect them. In recent years the rate of compliance with the filing deadlines at Companies House has been around the 95 per cent mark and just over a million pounds was raised in late filing penalties in 2005-2006. Modifications of the full filing requirements Filing with the Registrar is such a sensitive issue precisely because the information in the accounts and reports thus becomes generally available. The Act itself makes some concessions to the fear of publicity in the case of small, medium-sized and unlimited companies, by way of derogations from the full filing regime. That regime requires filing of the annual accounts, the director‟ report and (in the case of a quoted company) the directors‟ remuneration report, and the auditor‟s report on those accounts and reports.48 If the company has been required to produce group accounts, then the full regime applies to both the group and individual accounts.49 The balance sheet must contain the name of the person who signed it on behalf of the board. Unlimited companies are in principle exempt from filing any accounts and reports, provided the unlimited company is not part of insurance company.50 This is a good example of the link between limited liability and public financial disclosure, i.e. the latter is dispensed with if the former is not present. Of course, the unlimited liability company still has to produce and circulate accounts to the members, who have perhaps an even bigger interest in the proper running of the company if their liability is unlimited. Small companies subject to the small company regime are not required to produce group accounts, nor are they required to file a directors‟ report with their individual accounts. In relation to their individual accounts, which they are required to produce, they are required to file with the Registrar only the balance sheet (though they may file a profit and loss account if they wish)51
48 Ibid Ss. 446-447 49 Ibid S. 471 50 Ibid S. 448 51 Ibid S. 444(1) 36 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Further, the filed copy of the balance sheet is permitted to be less detailed than the balance sheet made available to the members, at least where the company produces Companies Act accounts. These are the so-called “abbreviated” accounts.52 There may also be omitted from the notes to the abbreviated accounts the information which unquoted companies are required to produce about directors‟ remuneration. This applies to both Companies Act and IAS accounts of small companies. The CLR took the view that the filed accounts of small companies were, in the result, “not meaningful”, and proposed to remove the facility for filing abbreviated accounts. Although the Government initially accepted this recommendation, it did not make its way into the Act. The general conclusion is that little insight into the financial position of a company subject to the small company regime will normally be obtained from consulting its filed accounts. A medium-sized company must file both the full annual accounts (individual and group, if necessary) and the directors‟ report, but may file the profit and loss account (but not the balance sheet) in abbreviated form.53 Information available from the Registrar The annual accounts and reports are probably the most important documents filed with the Registrar and thus made public, because they give reasonably current (though by no means completely up-t-date) information about the company‟s financial position. However, the accounts and reports do not constitute the whole of the information about the company which is publicly available from the Registrar, as we see at various points in this work. The next most important document thus made available is probably the company‟s constitution, mainly its articles of association. Perhaps after that in importance is the list of the company‟s directors, which must be updated as changes occur. Amongst the other information available in this why are the address of its registered office, the amount of its issued share capital and details of charges on its property. “Any person” has the right to inspect the register maintained by the Registrar, subject to certain limited types of information not being publicly available.54 There is also a right to obtain a copy of material on the register, subject to a fee,55 and a copy duly certified by the Registrar is evidence in legal proceedings of equal validity to the original.56 The applicant has the choice in relation to the most central items of
52 Ibid S. 444(3) 53 Ibid S. 445(1), (3). 54 Ibid Ss. 1085 and 1087 55 Ibid S. 1086 56 Ibid S. 1091 (3) Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 37
information to make the request for inspection or copy electronically or in hard copy, and to receive the information in either way.57 Annual return This is a document delivered annually to the Registrar by the company.58 Unlike the accounts and reports considered above, it is not a document sent by the directors to the members, a copy of which is filed with the Registrar. The Registrar is the principal addressee of the annual return (though, of course, any member may access it under the provisions discussed in the previous paragraph). Nevertheless it is convenient to consider it here. Moreover it is a document required to be submitted by every company, whatever its obligations as to the accounts and reports. To some significant extent the annual return simply makes the searcher‟s task easier: it collates much that should have been delivered for registration when the relevant transactions occurred, so that a searcher may find it unnecessary to search back beyond the latest annual return on the file. However, it also contains some information not otherwise required to be sent to the Registrar. This is particularly true of information about the members of the company,59 in particular the number of shares in each class held by each member and the number of shares transferred by each member since the last return. It is easy to see many situations in which information about members and their shareholdings may be of relevance. However, the annual return suffers from two defects in this respect. First, it reports the position only once a year and, in some companies, the shareholders may be a fluctuating body. Consequently, the share register maintained by the company is likely to be a better source of information than the annual return. In fact, this is a point which is more generally true about information in the annual return. Much of it is also kept on registers required to be maintained by the company, and the company‟s registers will be more up-to-date- and as equally available, at least to members of the company but not always to members of the public. Secondly, both the annual return and the company‟s share register contain information about only the shareholder who holds that legal title to the share (the “registered” member), who may be a mere nominee for someone else. Obtaining information easily about beneficial owners is provided for only in relation to companies whose securities are traded on regulated markets. Despite the criminal sanctions60 for non-compliance with the obligation to make an annual return and facilitation by the Registrar of electronic means for submitting the annual return, companies are not always prompt in making their annual returns. In
57 Ibid Ss. 1089 and 1090 58 Ibid S. 854 59 Ibid Ss 856A and 856Bs 60 Ibid S. 858 38 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 fact, failure to file the annual return alerts the Registrar and may lead to the taking of steps which culminate in the company‟s removal from the register. Other publication of the accounts and reports Although the Act requires only filing with the Registrar by way of making the accounts and reports available to the public, in fact large companies often, and other companies sometimes, make their annual statements available more generally; and quoted companies are now required to provide website publication.61 Where a company chooses to make its annual statements available in a way which is calculated to invite members of the pubic generally, or a class of them, to read it, then the Act requires the name of the person who signed the balance sheet or the DR or DRR on behalf of the company to be stated.62 If a company publishes its accounts in this way, they must be accompanied by the auditor‟s report (if there is one) and a company preparing group accounts cannot publish only its individual accounts.63 In short, a non-quoted company is not required to publish its annual accounts generally, but if it does so, it must do so in full. The accounts described above are known as the company‟s “statutory accounts”. A company is not prohibited from publishing other accounts dealing with the relevant financial year, thought this is in fact rare. If the company does so, it must include with them a statement that these accounts are not the statutory accounts and disclose whether the statutory accounts have been filed and whether the auditors have reported on them and, if so, whether the auditors‟ report was qualified. Nor may an auditors‟ report on the statutory accounts be published with the non-statutory accounts.64 If the company is listed, it will be required under the Lifting Rules to produce six-monthly accounts as well as annual ones, though such accounts do not fall into the category of “non-statutory accounts” because they do not cover an entire financial year. 3.9. Consideration of the Accounts and Reports by the Members Circulation to the members Since the accounts and reports are communications from the directors to the members, it is not surprising that the Act requires their circulation to the members.65 However, not only the members but also the company‟s debenture-holders (i.e. its long-term lenders holding the company‟s debt securities) must receive copies, since their chances of being repaid depend upon the financial health of the company. Thirdly, so must anyone who is entitled to receive notice of general meetings of the company be sent the accounts and reports, a category which includes the directors
61 Ibid S. 430 62 Ibid S. 433 63 Ibid S. 434 64 Ibid S. 445 65 Ibid S. 423(1) Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 39
themselves (hardly a necessary requirement) and anyone else entitled to notice under the particular company‟s articles.66 This obligation arises only if the company has a current address for the person in question.67 Finally, those nominated to enjoy information rights will receive copies of the accounts and reports.68 Just to make sure, the Act also provides that shareholders and debenture-holders can at any time demand copies of the most recent annual accounts and reports and the company must comply with the request within seven days.69 Summary financial statements There are two linked problems with the circulation requirements. First, the full accounts and reports may be grist to the mills of the analysts, but lots of individual shareholders find the full set more daunting than useful. Secondly, the circulation requirement is an expensive one for the company to meet. Both these concerns are addressed by the provisions as to summary financial statements, which replace the full accounts and reports otherwise required to be circulated. This facility was previously available only to companies whose securities were traded on certain public markets, but now it is in principle open to all companies.70 Moreover, the burden is on the recipient to ask to continue to receive the full accounts and report. If after being sent an appropriate notice from the company, the recipient does into respond with a contrary statement within 28 days, he or she will be deemed to have opted for the summary, though that “choice” can be reversed at any time.71 The summary statement provisions are, however, default rules, in the sense that the company in its constitution or the instrument creating the debentures may deprive itself of this facility. The right to make use of the summary is also dependent on the company observing the relevant provisions of the Act relating to the audit, filing and approval of the full accounts and reports. The detailed rules for the format of the summary financial statements, as far as derived from the accounts, are set out in Schedules to the Regulations. In addition, certain parts of the directors‟ reports are required to be included or summarized in the summary financial statement, in particular those parts dealing with the directors‟ remuneration. Further, the summary must contain, or there must be sent separately, the information the Takeovers Directive requires to be provided annually about the company‟s control structures. Finally, as far as content is concerned, the summary must contain statements warning the reader that it is only a summary and informing
66 Ibid S. 307 67 Ibid S. 423 (2), (3) 68 Ibid S. 146 69 Ibid S. 431 70 Ibid S. 426 71 Ibid S. 426(2) 40 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 the reader how to obtain full copies.72 The auditor is required to form a view whether the summary is consistent with the accounts and reports and complies with the provisions of the Act and the Regulations, and that view must be included in the summary.73 The auditor must also state in the summary whether any of the reports required to be given by an auditor were adverse to the company and, if so, to include them.74 An alternative, or additional way, of addressing circulation costs is to encourage members to receive communications (whether full accounts and reports or a summary) from the company in electronic form or via the company‟s website. A quoted company is in any event required to put its current annual accounts and reports on its website and to maintain it there throughout the following financial year. Laying the accounts and reports before the members Circulating the accounts and reports to the members and others allows them to consider them on an individual basis, but such consideration is not likely to lead to significant action in the case of companies with larger bodies of shareholders, unless there is some facility for collective consideration of the accounts and reports. As far as private companies are concerned, there is no longer any statutory requirement for such collective consideration, no matter how large a shareholding body that company may have. A private company is required by the statute to circulate its annual accounts and reports at the time it delivers them to the Registrar,75 and any further action is a matter for the shareholders or the company‟s articles. The shareholders might seek to convene a meeting or the articles might require annual consideration of the accounts and reports at a meeting, which the directors would be obliged to convene. 4. Reporting and Disclosure in Bangladesh Sections 210-220 of the Companies Act of 1994 deal with audit, auditors and auditor‟s report. According to section 210, an auditor shall be appointed at the annual general meeting with his previous consent and the company shall give intimation to the auditor within seven days of his appointment. Section 213 lays down powers and duties of auditors. This section corresponds to section 145 of the Act of 1913. An auditor shall have right to access at all times to the books and accounts of the company and may require any information or explanation from officers of the company. This section lays down certain responsibilities the auditors must perform, namely, enquiry whether loans and advances made by the company on the basis of the security have been properly secured and whether the terms on which they have been made are not prejudicial to the interests of the company or its
72 Ibid S. 427(4)(a)-(c), 428(4)(a)-(c) 73 Ibid S. 427(4)(d), 428(4)(d) 74 Ibid S. 427(e)-(g), 428(4)(e)-(g) 75 Ibid S. 424(2) Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 41
members. This alone seems to be a formidable task as even the most experienced auditor or lawyer will not be able to comment on the adequacy of the security. Only obvious lapses may be detected. Such enquiry shall also take into account several other matters, e.g., whether transactions of the company represented merely as book entries are prejudicial to the interests of the company or whether in the case of a company not being a banking or investment company assets represented by shares and securities have been sold at a loss or whether personal expenses have been changed to revenue account and whether cash has been actually received by the company where shares have been allocated for cash. The auditor is to make a report to be presented in the annual general meeting on the accounts examined by him and on every balance sheet and profit and loss account and whether these give a true and fair view of the company‟s affair at the end of the financial year. The stress on having a „true and fair view‟ is new and is in conformity of the standard to be sad in preparing a balance sheet and profit and loss account. Section 213(3) clearly states that the auditor shall make a report to be presented in the annual general meeting of the company on the accounts, examined by him, and on every balance sheet and profit and loss account and on every other document declared by this Act to be part of or annexed to the balance sheet or profit and loss accounts which are laid before the company in general meeting during his tenure of office and the report shall state whether, in his opinion and to the best of his information and according to the explanation given to him, the said accounts give the information required by this Act in the manner so required and give a true and fair view- a) in the case of the balance sheet, of the state of the company's affairs as at the end of its financial year; b) in the case of the profit and loss account, of the profit or loss for its financial year. The auditor‟s report shall also state- a) whether he has obtained all the information and explanation which to the best of his knowledge and belief were necessary for the purposes of his audit; b) whether, in his opinion, proper books of account as required by law have been kept by the company so far as appears from his examination of those books and proper returns adequate for the purposes of his audit have been received from branches not visited by him; c) whether the company's balance sheet and profit and loss account dealt with by the report are in agreement with the books of account and returns. The Government may, be general or special order, direct that in the case of such class or description of companies as may be specified in the order, the auditor‟s report shall also include a statement on such matters as may be specified therein. The power to call for information and explanation from the officers of the company 42 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 gives the auditor the power to call for information and explanations from managing and other directors because the definition of an “officer” in section 2(o) of the Act includes a “director”. Section 214 applies the rights of an auditor to inspect the accounts of the company to its branch offices. Section 215 requires that the auditor‟s report shall be signed only by the auditor so appointed or if the auditor is a firm then by its partners. The auditor‟s report is to be read before the company in annual general meeting and an auditor has a right to attend the general meeting.76 The preference shareholders and debenture holders have the same rights to receive and examine the balance sheets, profit and loss account, and the auditor‟s report as are enjoyed by ordinary shareholders.77 4.1. Reports to be set out in Prospectus The auditors of the company shall prepare a report on the following, namely: (a) Profits and losses, and assets and liabilities, in accordance with sub-clause (2) or (3), as the case may be; (b) The rates of dividends, if any, paid by the company in respect of each class of shares in the company for each of the five financial years immediately preceding the issue of the prospectus, giving particulars of each such class of shares on which the dividends have been paid and also particulars of the cases in which no dividend has been paid on any of those classes of shares for any of those years; (c) If no account have been made-up in respect of nay of the said financial years, or part thereof ending on a date immediately preceding three months prior to the issue of the prospectus (hereinafter referred to as the said period), then the following matters: (i) A statement that such accounts have not been made up; (ii) An account of the profit and loss of the company up to a date prior to the issue of the prospectus which date is not beyond one hundred and eighty days including the said period (three months); (iii) The accounts referred to in sub-clause (ii) may indicate as to whether any adjustment has been made or yet to be made and the nature of the adjustment; (iv) A certificate that the profit and loss account and the assets and liabilities of the company have been examined by the auditors and found to be correct by them. If a company has no subsidiaries, then the report shall be as regards.-
76 Companies Act of 1994 Ss 216 and 217 77 Ibid S. 221 Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 43
a) Profit and losses, deal with the profits or losses of the company distinguishing it of a items of a non-recurring nature, in respect of each of the five financial years immediately preceding the issue of the prospectus; and b) Assets and liabilities, deal with the assets and liabilities of the company at the last date to which the accounts of the company were made up. If the company has subsidiaries, the report shall as regards- a) Profits and losses, deal separately with the company‟s profits or losses as provided by sub-clause (2) and in addition, deal either- i) As a whole with combined profits or losses of its subsidiaries, so far as they concern members of the company; or ii) Individually with the profits of losses of each subsidiary, so far as they concern members of the company; or, iii) Instead of dealing separately with the company‟s profits or losses, deal as a whole with the profits or losses of the company and, so far as they concern members of the company, with the combined profits or losses of its subsidiaries; and b) Assets and liabilities, deal separately with the company‟s assets and liabilities as provided by sub-clause (2) and, in addition, deal either- i) As a whole with combined assets and liabilities of its subsidiaries, with or without the company‟s assets and liabilities; or ii) Individually with the assets and liabilities of each subsidiary; c) The assets and liabilities of the subsidiaries indicate the allowance to be made for persons other than members of the company. 4.2. Statutory Report Every company limited by shares and every company limited by guarantee and having a share capital shall, within a period of not less than one month and not more than six months from the date at which the company is entitled to commence business, hold a general meeting of the members of the company which is referred to as "the statuary meeting". The Board of Directors shall, in accordance with the other provision of this Act, prepare a report, in this Act referred to as 'statutory report" and shall at least 21 days before the day on which the statutory meeting is not be held, forward the report to very member of the company: However, if the report is forwarded later than the time as is required above, it shall notwithstanding that fact, be deemed to have been duly forwarded if any member entitled to attend and vote at the meeting does not object to such forwarding. The statutory reports shall set out the following namely-- 44 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
(a) the total number of shares allotted, distinguishing the shares allotted as fully or partly paid-up, otherwise than in cash, and stating in the case of shares partly paid-up, the extent to which they are so paid up, and in either case, the consideration for which they have been allotted; (b) the total amount of cash received by the company in respect of all the shares allotted, distinguished as aforesaid; (c) showing under separate proper headings— (i) an abstract of receipts of the company and of the payments made thereout up to a date within seven days prior to the date of the report; (ii) the receipts of the company from the shares and debentures and other sources, the payments made thereout and particulars of the concerning balance remaining in hand; (iii) any commission or discount paid or to be paid on the issue or sale of shares or debentures; and (iv) an account or estimate of the preliminary expenses of the company; (d) the names, addresses and occupations of the directors of the company and of its auditors; and also, if there be any, of its managing agent, manager and secretary. and the change, if any which have occurred in such names addresses in and occupations since the date of the incorporation of the company; (e) the particulars of any contract which, or the modification or the proposed modification of which is to be submitted to the meeting for its approval, together with the particulars of the modification or proposed modification of such contract; (f) the extent, if any, due on calls from every director, from managing agent, every partner of the managing agent, every firm in which the managing agent is a partner, and where the managing agent is a private company, every director thereof; (g) the arrears, if any, due on calls from every director, from managing agent, every partner of the managing agent, every firm in which the managing agent is a partner, and where the managing agent is a private company, every director thereof; (h) the particulars of any commission or brokerage paid or to be paid in connection with the issue or sale of shares or sale of shares or debentures to any director, or to the managing agent, any partner of the managing agent, any firm in which the managing agent is a partner and, where the managing agent is a private company, to any director thereof. The statutory report shall be certified as correct by not less than two directors of the company, one of whom shall be the managing director where there is one. After the Reporting and Disclosure in Bangladesh and the United Kingdom: Convergence 45
statutory report has been certified, the Board of Directors the company shall, in so far as the report relates to the shares allotted by the company, the cash received in respect of such shares and the receipts and payments of the company, get it certified as correct by the auditors of the company. The Board of Director shall cause a copy of the statutory report certified as if required by this section to be delivered to the Registrar for registration forthwith, after copies thereof have been sent to the members of the company. The members of the company present at the meeting shall be at liberty to discuss any matter relating to the formation of the company or arising out of the statutory report, whether previous notice has been given or not; but no resolution may be passed of which notice has not been given in accordance with the provisions of this Act. If default is made in complying with the provisions of this section, every director or other officer of the company who is in default shall be punishable with fine which may extend to five thousand taka. 5. Convergences and Divergences Directors’ Report: According to section 415 of the UK Companies Act of 2006, the directors of a company is under obligation to prepare a “directors‟ report” for each financial year of the company. Sections 416 described the general contents of directors‟ report. Section 419 stipulates that the directors‟ report must be approved by the board of directors and signed on behalf of the board by a director or the secretary of the company. In Bangladeshi Company Act of 1994, there is no such obligation on directors to prepare a report in every financial year. Though Regulation 51 of Schedule I indicates that there may be an “ordinary report of the directors,” but any further discussion is absent. Directors’ Remuneration Report: Section 420 of the Companies Act, 2006 of UK clearly states that the directors of a quoted company must prepare a “directors‟ remuneration report” for each financial year of the company. Section 421 deals with the contents of that report. In Bangladesh, there is no provision for such report. Auditor’s Report: Section 495 of the Companies Act, 2006 of UK says that company‟s auditor must make a report to the company‟s members on all annual accounts of the company. The auditor‟s report must include—(a) an introduction identifying the annual accounts that are the subject of the audit and the financial reporting framework that has been applied in their preparation, and (b) a description of the scope of the audit identifying the auditing standards in accordance with which the audit was conducted. Section 213(3) of the Companies Act, 1994 clearly dictates that the auditor shall make a report to be presented in the annual general meeting of the company on the 46 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 accounts, examined by him, and on every balance sheet and profit and loss account and on every other document declared by this Act to be part of or annexed to the balance sheet or profit and loss accounts which are laid before the company in general meeting during his tenure of office. Auditor’s Report on Directors’ Report: Section 496 of the Companies Act, 2006 of UK stipulates that the auditor must state in his report on the company‟s annual accounts whether in his opinion the information given in the directors‟ report for the financial year for which the accounts are prepared is consistent with those accounts. There is no such provision in Bangladesh. 6. Recommendations o Bangladeshi law should clearly provide for directors‟ report and other relevant provisions. o Like UK law, Bangladeshi law should provide for Directors‟ Remuneration Report for publicly traded companies. o The auditors in Bangladesh should get power to make a report of said directors‟ report. o Auditors in Bangladeshi law should also have the power to make investigation and report on auditable part of directors‟ remuneration report. 7. Conclusion Reporting is a substantial part of the company legislation. The UK Companies Act, 2006 deals with annual accounts and reports in Part 15 which contains nearly one hundred sections, and this is an indication of the central role played by annual reporting in the structure of the company legislation. Though Bangladeshi company legislation has incorporated the idea of auditor‟s report, it seems to have lagged behind in introducing strong provisions on directors‟ report. Thus, Bangladeshi legislators should concentrate on providing a workable and comprehensive regulatory framework for financial reporting which is considered as an invaluable mechanism to strengthen the corporate governance and to protect the financial health of a country.
Rediscovering the Rules for Communication of Contract Law in Bangladesh: Legal and Philosophical Perspective
Dalia Pervin
Abstract The governing law for the rules of contracts in our land Bangladesh was enacted with a view to defining and amending certain parts of the law relating to contracts. Due to rapid modernization in the method of communication, in this modern age, we really need to know what should be the appropriate rules for communication of contract in case of communication using digital technologies e.g. E-mail. The modern modes of communication can be said to be the modernized form of the available methods of communication. The fundamental aim of this article is to shed some lights on the available methods of communication and find out the rules with regard to the digital technologies e.g. E-mail. Introduction After the enactment of the Contract Act,1872 for defining and amending certain parts of the law relating to contract1, almost 150 years have passed. In this drawn out stretch of time, innovation has been produced and it has gone far. In this 150 years span of time, technology has given us speeder modes of communication e.g. Telephone, telegraph, e-mail etc. But it is a matter of fact that any precise rule for the method of communication using digital technologies e.g. E-mail is yet to be discovered. There is a genuine level headed discussion among the researchers of the law of contract whether the established rules governing instantaneous and postal communications are adequate enough for modern use. Researchers of this branch of law has not turned out with a specific choice yet. The objective of this article is to find out the appropriate rule of communications taking guide lines from the advanced legal systems like England, Canada, India, Singapore and Australia and being influenced by the competing philosophy of the rules of contract law. Here it will likewise be demonstrated that communication utilizing cutting edge advances can be said to be the modernized form of either instantaneous or postal method of communication. Moreover, some lights will be shed on the existing rules for communication in the Contract Act,1872.
Associate Professor of Law, Department of Law, University of Dhaka. Md. Azhar Uddin Bhuiyan, currently a second year student at the Department of Law, University of Dhaka worked as my research assistant during this study. 1 This is said in the preamble of the Contract Act,1872.
48 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
In the modern world, there are many modern contractual doctrines which govern the rules regarding contract law. They are- (i)Market- individualism (ii)Consumer- welfarism The Market Philosophy demonstrates the function of the law of contract as the facilitation of competitive exchange, which demands clear contractual ground rules and transactional security.2 As per this philosophy, it is important for those who enter into market to know where they stand. This means the ground rules of contract should be made clear. So these two things, i.e. The ground rules and transactional security are inter-related. The Postal Acceptance Rule of communication is an exception to the general rule of contract law that acceptance of an offer takes place when it is communicated. Under this rule, the acceptance takes effect when the letter of acceptance is posted. It is not necessary for the offeror to know that his offer is been accepted. The Postal Acceptance Rule (PAR) is a model for market individualism in the sense that it is clear and simple. Moreover, according to this rule, both the parties of the contract know where they stand.3 Contract‟s concern to avoid market inconveniences is a measure of its commitment to the market- individualist policy of facilitating market dealing.4 Consumer-welfarism attempts to feed reasonableness and sensibility into the contractual rules. It is a policy of consumer protection and for the principles of fairness and reasonableness in contract. As per this philosophy, the welfare of the consumer is the top most priority in case of making rules. Apart from the above two ideologies, the utilitarian approach of the rule makers around the world also play a vital role in the creation of the contractual rules and principles. As per this utilitarian philosophy, the prime object is to ensure maximum benefit for the maximum number of people. This ideology is dependably in the psyche of the administrators all around the globe as the officials need to make those tenets which can come into advantage for the most extreme number of individuals. In our triumph to discover the appropriate rules in case of communication via modern technologies e.g. E-mail, Telephone or Telegraph, we will keep these ideologies in our mind.
2 Linda Mulcahy, Contract Law in Perspective, Routledge Publication, 5th Edition,p.34; Here ground rules mean the rules for the thin dividing line of offer and invitation to treat, the rules for contracts made by the minors or the rules in restraint of trade, the rules related to contingent contracts or the rules of quasi contracts. The main theme of the term „transactional security‟ is that both the parties should know where they stand in the contract. The market nonconformist rationality manages these two essential components. 3 There is also a fallacy here. In case of postal acceptance rule, the contract is concluded even before the offeror knows about the acceptance. There may be one justification that while offering, the offeror knows that the contract will be concluded even before his knowledge of the acceptance of offer. 4 Ewan McKendrick, Contract Law: Text, Cases, and Materials, Oxford University Press, 5th Edition, p.12
Rediscovering the Rules for Communication of Contract Law in Bangladesh 49
Communication in Contract Law Communication plays the central role in the formation of a contract. The effectivity of proposal, acceptance and revocation is impractical without communication. The rules of communication in contract law can be divided into there main classes: (i) The General Rule (ii) The Postal Acceptance Rule (iii)The Instantaneous method of communication (i) The General Rule of communication The General Rules regarding communication have been enumerated in the section 3 of the Contract Act,1872, the governing law of contract in Bangladesh. According to this section communication of proposal, acceptance and revocation can be made by two ways5: (i) By the act or omission of the concerned party which intended it, (ii) By the act or omission of the party which though didn‟t intend it clearly, but it has the effect of such communication of proposal, acceptance or revocation. One important point is that communication has to have certain level of magnitude or certain level of intensity. Over the years legal system influenced by the English Common Law have been influenced by the decision given by famous jurist Lord Denning. In the case of Entores vs. Miles Far East Corporation6, Lord Denning decided the required level of intensity or magnitude of communication and held that “if an oral acceptance is drowned out by an overflying aircraft, such that the offeror cannot hear the acceptance, then there is no contract unless the acceptor repeats his acceptance and aircraft has passed over.”7 (ii)The Postal Acceptance Rule The Postal Acceptance Rule is an exception to the general rule of communication. It is a rule of contract law that says if an offer is made in such a manner that it would be reasonable to assume that another person would accept the offer by placing a letter or other writing in the mail, then acceptance is deemed to have occurred when the writing was placed in the mail, not when it was received by the person making the offer.8
5 Dr. Muhammad Ekramul Haque, Law of Contract, Law Lyceum, 2nd Edition, p.79 6 Entores Ltd v Miles Far East Corporation [1955] EWCA Civ 3 7 Ibid. 8 „Mailbox Rule‟,
50 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
The Postal Method of Communication was initially articulated in the famous case of Adams vs. Lindsell9. In this case, The defendant wrote to the claimant and offered to sell them some wool and asked for a reply 'in the course of post'. The letter was being delayed in the post. After receiving the letter the claimant posted a letter of acceptance the same day. Later on, because of the delay the defendants assumed that the claimant was not interested in the wool and sold it on to a third party. The claimant sued for breach of contract. Whether there was any binding contract between the claimant and the defendant was the issue of the contract. If the acceptance was effective when it arrived at the address or when the defendant saw it, then no contract would have been made and the sale to the third party would amount to revocation of the offer. However, the court held that the offer had been accepted as soon as the letter had been posted. Thus, in Adams v Lindsell10 there was indeed a contract in existence before the sale of the wool to the third party, even though the letter had not actually been received by the defendant. In the case of Household Fire Insurance Co. Vs. Grant (1879)11, it was held that the rule of postal method of acceptance will also work even though the letter of acceptance is never received. Then in Henthorn vs. Fraser (1892)12, it was observed that this postal rule of acceptance even applies where the letter of acceptance is received after notice of revocation of the offer is being sent. Even after all these flaws, Adams v Lindsell has been reinforced recently by Brinkibon Ltd v Stahag Stahl and Stahlwarenhandelsgesellschaft GmbH [1983]13where it was held that acceptance is effective when it is placed in the control of the Post Office, ie. placed in a post box or handed to an officer of the post. This judgment is also in line with section 4 of The Contract Act,1872. In Bangladesh, the rules regarding communication via post can be divided into two parts: a. Communication of Proposal b. Communication of Acceptance Communication of proposal is complete when it comes to the knowledge of the person to whom it is made. So, here the criterion is only one, i.e., it must come to the knowledge of the person to whom it is addressed. For example, if A makes an offer to B via post and B has received the offer, then we can say that the communication of offer is complete. In case of face to face to transaction the rule is simple, i.e., when the words constituting the acceptance are uttered, the communication of acceptance will be complete as soon as the other party listens to it. In case of any postal communication following instances happen simultaneously: A letter of acceptance is first posted; it arrives some times later; and later again, it is actually read by the recipient. The
9 Adams v Lindsell (1818) 1 B & Ald 681 10 Ibid. 11 Household Fire Insurance Co. Vs. Grant (1879) LR 4 Ex D 216 12 Henthorn vs. Fraser (1897) 2 Ch 27 13 Brinkibon Ltd v Stahag Stahl and Stahlwarenhandelsgesellschaft GmbH [1983] 2 AC 34
Rediscovering the Rules for Communication of Contract Law in Bangladesh 51
question arises: When does it actually take effect? Therefore, in case of postal transactions problem arises. In Bangladesh the postal method of communication with regard to „acceptance‟ is completed in two phases. The communication of acceptance becomes complete as against the proposer when it is put in a course of transmission to him, so as to be out of the power of the acceptor14. Then again communication of acceptance will be complete as against the acceptor when it comes to the knowledge of the proposer. In a Bangladeshi case Sahana Chowdhury and another vs. Md Ibrahim Khan and others15 it was decided that, without the communication of acceptance, there can be no contract at all.16 For example, A makes an offer to B via post and B wants to accept it. Therefore, B sends the letter of acceptance. The communication of acceptance is completed against A when B puts that letter in the mail box so as to be out of the power of the acceptor.17 So, A is bound by the terms of the contract from that moment and he cannot revoke that offer anymore. But B can still revoke his acceptance. He can revoke his acceptance till A receives the letter of acceptance18. From the mother case law of Postal Acceptance Rule19, it can be observed that the communication of acceptance becomes complete as soon as the letter of acceptance is posted and the contract is concluded at the same moment, even if the letter does not reach the destination ever. In case of English Law, there is no option for revocation of acceptance. This is the point where English Postal Acceptance Rule of communication is fundamentally different from the Bangladeshi one. In Bangladesh, a contract is concluded in the first phase of the communication of acceptance,i.e., when the letter of acceptance is posted. Revocation of acceptance can be done by a speedier means of communication in Bangladesh and India. This rule of communication leaves open some loop holes. There are usually three consequences as identified by Mindy Chen-Wishart in his Contract Law20. Firstly, Postal Rule of communication binds the offeror even before and even without the knowledge of the acceptance. It is effective, even if its arrival is delayed, and even if the letter is lost so that he never actually receives the acceptance.21 The risk lies solely with the offeror.
14 Section 4 of the Contract Act,1872 15 Sahana Chowdhury and another vs. Md Ibrahim Khan and others 21 BLD (AD) 79 16 Chitty also expressed the same view in his book „Chitty on Contracts‟, 28th Edition, at p. , para 2-041. Similar view was seen to be held in the case of Bangladesh Muktijoddah Kalyan Trust represented by the Managing Director vs. Kamal Trading Agency & others 18 BLD (AD) 99; Holwell Securities Ltd. Vs. Hughes(1974) 1 All ER 161 (CA); Bhagwandas Goverdhandas Kedia vs. Girdharlal Parshottamdas AIR 1966 SC 543 17 Section 4 of the Contract Act,1872 18 Section 5 of the Contract Act,1872 19 The case of Adams vs. Lindsell is said to be the mother case law of the postal acceptance rule. 20 Mindy Chen-Wishart, Contract Law, Oxford University Press, 1st Edition, p.89 21 See for example, Household Fire & Carriage Accident Insurance Co Ltd. Vs. Grant (1879)
52 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Secondly, The offeror cannot revoke his offer after the offeree‟s acceptance is posted even though the offeror has not yet received it, i.e., he has no knowledge of the acceptance. In Byrne vs. Van Tienhoven (1880), On October 1st Van Tienhoven mailed a proposal to sell 100 boxes of tin plates to Byrne at a fixed price. On October 8th, Van Tienhoven mailed a revocation of offer, however that revocation was not received until the 20th. In the interim, on October 11th, Byrne received the original offer and accepted by telegram and turned around and resold the merchandise to a third party on the 15th. Byrne brought an action for non- performance. Some questions of Law arose: Was a valid contract formed? Does a withdrawal of an offer have any effect before it is communicated to the person to whom the offer was sent? It was held that the mailbox rule does not apply to revocation; revocation sent by post does not take effect until received by offeree. An offer cannot be revoked after it has been accepted. Thirdly, Where a postal acceptance is lost in the post, the offeror may believe that, since no reply has been received, the offeree does not wish to accept. He may refrain from performing the contract and later on make another contract with another person even before the arrival of the letter of acceptance. So, it creates the chance or opportunity for injustice which a rule of law should not do. Even after all these loop-holes the postal rule has been justified by reference to implied authorization22,control23, business expediency24 and agency25. Treitel in his The Law of Contract pointed out several justifications for the application of Postal Acceptance Rule.26 Firstly, It is said that the Post Office is the agent of the offeror so that communication to the agent is as good as communication to the offeror. However, it has also been argued that, the post office is an agent to transmit the message not to receive its contents. Secondly, It is said that the offeror who initiates negotiations through the post should assume the risk that the acceptance letter may be delayed or lost. However, postal negotiations may as likely be initiated by the offeree. Use of the post is not unusual and may be the most sensible method of communications in the circumstances. But it is unclear why the offeror should assume the risk of any delay or loss. Thirdly, It is said that the offeree is less likely to detect that his acceptance letter has gone astray because he expects his letter to arrive in the normal course of time and expects no further communication to conclude the contract. In contract, the offeror is expecting a response and so is more likely to make enquiries if he does not hear
22 Household Fire & Carriage Accident Insurance Co v Grant(1879} 4 Ex D 216 (Grant). 23 Dunlop v Higgins (1848) 1 HLC 381 (Dunlop). 24 Household Fire & Carriage Accident Insurance Co v Grant(1879} 4 Ex D 216 (Grant) 25 Stocken v Collins (1848) 7 M & W 515; Henthron v Fraser [1892] 2 Ch 27 (Henthron) 26 See generally, Treitel,The Law of Contract, Sweet and Maxwell, 24-5
Rediscovering the Rules for Communication of Contract Law in Bangladesh 53
from the offeree. That is, the offeror is the best risk-avoider. However, the offeror may equally interpret the absence of a response as a rejection of his offer. Fourthly, It is said that the offeror can always contract out of the postal acceptance rule by stipulating that acceptance only takes effect when it is „actually‟ communicated to the offeror. However, all the above reasons are not convincing enough for the proper justifications of Postal Acceptance Rule. In this regard we can quote Mindy Chen- Wishard, “In truth, no convincing reasons support the weight of the postal acceptance rule. Nevertheless, while there is no particular reason for preferring the offeree or the offeror, the law must come down on one side or the other in the interest of certainty, rather like the decision about which side of the road cars should drive on. However, a rigid application of the postal acceptance rule can yield a binding contract although the parties were never objectively in agreement.”27 Bramwell LJ in Household Fire and Carriage Accident Insurance Co Ltd. Vs Grant(1874)28said that he would prefer the ordinary rule of communication to apply equally to acceptance by post. In his powerful dissenting judgment he says that, the harm he perceives in the postal rule will be obviated only by the rule being nugatory by every prudent man saying, “Your answer by post is only to bind if it reaches me.” But Bramwell LJ‟s dissenting opinion clearly creates a chance of injustice to the offeree. In case the accepting mail is lost or delayed, the offeree will be in clear disadvantage though mails via post rarely get lost or get delayed. This is an exceptional situation. But in case of normal situation, Bramwell LJ‟s guideline can be a way-out for the offeror. (iii) Instantaneous Mode of Communication The term „instantaneous‟ means rapid, direct, in a flash and quick. Instantaneous mode of communication is that mode of communication where contract is done as if the parties were completing it face to face. In this method of communication, the contract is only complete when the acceptance is „actually‟ received by the offeror and contract is made at the place where the acceptance is received. It has also been affirmed by the majority of the judgment in the Indian case of Bhagwandas Goverdhandas Kedia vs. Girdharilal Parshottamdash29. But in the same case there was a dissenting judgment by J. Hidayatullah. The dissenting judge, stressing on literary interpretation of Indian Contract Act observed that the laws in the
27 Mindy Chen-Wishart, Contract Law, Oxford University Press, 1st Edition, p.90 28 Household fire and carriage Accident Insurance Co Ltd. Vs Grant(1874) 4 ExD 216 29 Bhagwandas Goverdhandas Kedia vs. Girdharilal Parshottamdash 1966 AIR 543
54 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 subcontinent should not be moulded by English dicta whereas we have our own law, held that “when acceptor put his acceptance in transmission (in form of telephonic conversation) to proposer as to be out of his power to recall (According to section 4 of the Indian Contract Act 1872), communication of acceptance was complete and proposer was bound by contract so formed, however quick the transmission.”30 Then again, In the famous English case Entores Ltd. Vs. Miles Far East Corporation, Lord Denning held that “it is the duty of the acceptor to ensure acceptance to be audible, heard and understood by the offeror.”31 Most of the new means of communication may be said to be the modernized form of instantaneous method of communication. On the basis of the simultaneity, instantaneous method of communication, Mindy Chen Wishart32 classified into 2 different types. They are- i. Two way instantaneous ii. One way instantaneous In case of two way instantaneous method of communication,e.g. Telephone conversation or face-to-face conversation, both the parties are present and conditions for simultaneity are met and the general rule applies here. Acceptance takes place when and where it „actually‟ comes to the knowledge of the offeror. In this case, No delay is seen to be happened in between sending and „actual‟ receiving of the acceptance. Lord Denning gave three different illustrations in his famous judgment of Entores Ltd. Vs. Miles Far East Corporation(1955)33- a. If a face-to-face oral acceptance is drowned out by a noisy aircraft flying overhead, the offeree must repeat his acceptance once the aircraft has passed; b. If the telephone goes „dead‟ before the acceptance is completed, the offeree must telephone back to complete the acceptance; c. If the offeror does not catch the clear and audible words of an acceptance or the printer receiving a telex runs out of ink, but the offeror does not bother to ask for the message to be repeated, it is the offeror‟s own fault that he did not get the acceptance and he will be bound.
30 Ibid. 31 Entores Ltd. Vs. Miles Far East Corporation. 32 Mindy Chen-Wishart, Contract Law, Oxford University Press, 1st Edition, p.87 33 Entores Ltd v Miles Far East Corporation [1955] EWCA Civ 3, cited from Contract Law by Mindy Chen Wishart.
Rediscovering the Rules for Communication of Contract Law in Bangladesh 55
As we can see, Lord Denning always favored the offeror where neither party of the contract can be blamed.. He commented: “...the offeror without any fault on his part does not receive the message of acceptance - yet the sender of it reasonably believes it has got home when it has not - then I think there is no contract.” In case of one way instantaneous method of communication, e.g. Telex, Telegram etc. the condition of simultaneity is not met. Here both the parties are not present at the same time. Here the message arrives instantaneously. But the recipient is not necessarily at the other end ready to receive the message. Question may arise when and where the acceptance has taken place. Three possibilities arising here can be mooted: a. Acceptance takes place when the message is sent. This is an injustice to the offeror since he may not know about it at that time. This creates a similarity with Postal Acceptance Rule. b. Acceptance takes place when the message „actually‟ comes to the knowledge of the offeror. This is an injustice to the offeree as it gives the offeror too much control over whether and when the contract is been concluded. Moreover, the offeror may try to revoke the offer even after the acceptance without even opening the message of acceptance. This is an example of sheer injustice. c. Acceptance takes place when in all circumstances a reasonable offeror would access the message received. From these 3 possibilities, third one seems the best as a rule as it balances both the parties‟ interest. But this raises another question: When a reasonable offeror would access the message. For this reason, communication using instantaneous means of communication can be divided into two classes: a. Communication to a business during the office hours b. Communication to a business outside the office hours There are judicial authorities with regard to the communication to a business during office hours and outside the office hours. In the case of Brinkibon Ltd vs. Stahag Stahl GMBH [1983]34, it was decided that except by post, notice of acceptance received in working hours are deemed to be read immediately. Then, in the case of
34 Brinkibon Ltd vs. Stahag Stahl GMBH [1983] 2 AC 34
56 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Mondial Shipping and Chartering B.V. Vs. Astarte Shipping Ltd. (1996)35, it was held that the receipt of a contractual notice should be deemed to take place at the start of the next working day if it was received and stored outside normal working hours. Rules for Website Communication Websites are the electronic equivalent of displays, advertisements or catalogues of products for sale.36 In the English law, as well as according to Bangladeshi Law, a website, in general, constitutes an „invitation to treat.‟37 It gives the site provider to retain „freedom of contract‟ as the offer will come from the customer. There is an opportunity for the site provider to avoid the contract with online buyers in excluded jurisdictions. Moreover, the stock of the site provider may be limited. This is why websites are in general considered as invitation to treat as the offer would come from the customer himself and the site provider may accept it or not as per his ability. As websites are, in general, treated as an invitation to treat, the communication of the offer will be done by the offeror when the customer at the check out state will click on the relevant instruction to place the order according to the general rule of communication from section 3 of the Contract Act, 1872. As per this section, communication of offer are deemed to be made by any act(here clicking on the check out state link) of the party proposing it, by which he intends to communicate such proposal or which has the effect of communicating it. Then again, following section 3 of the Contract Act, 1872, the acceptance of the proposal will take place as soon as the website authority, after due processing, confirms the orders. The contract will be concluded when the credit card of customer is being charged. Now whether the acceptance can be revoked is an „open- ended question‟. Nothing is said about it any where in the Contract Act. There are no case laws available in this matter in Bangladesh. Therefore, a particular problem may arise because of the inadvertent mispricing of goods in the online. But there are instances which involves offers which are “too good to be true”. One receiving such offer cannot cannot just „snap it up‟. Even if he does, the offeror may revoke his offer in spite of the fact that the offer has been accepted.38
35 Mondial Shipping and Chartering B.V. Vs. Astarte Shipping Ltd. (1996) [1995] C.L.C. 1011 36 For details, see Jill Poole, Text Book on Contract Law, Oxford University Press, 12th Edition, p.43 37 Products offered on websites are considered as offers under French and Dutch Law. For details see, Jan M Smits, Contract Law: A Comparative Introduction, Edward Elgar Publishing Limited, 2014 Edition, p. 49 38 See for details, Donald A. Wittman, Economic Analysis of the Law: Selected Readings, John Wiley & Sons, 2008 Edition, p.73
Rediscovering the Rules for Communication of Contract Law in Bangladesh 57
For example, in the Chwee Kin Keong vs. Digilandmall.com Pte. Ltd39, Defendant was selling IT products over internet in Singapore. The HP laser printer was advertised on the Defendant‟s website and on the website of HP for $3,854. Due to the mistake on part of one of the employee of a related company, the price of printer was altered to $66 on the website, which was not noticed by any of the employee. The Appellants (there were six appellants) discovered this price and ordered more than 100 printers each. After discovering the Company rectified the mistake and sent an e-mail stating that it will not complete this order. The Court held that (also considering the background of the appellants) that they had a constructive knowledge about the mistake in the pricing of the product. As this is one instance of „snap it up‟, therefore, even after the acceptance by the defendant had the right to revoke his offer. So, in case of unilateral mistakes in websites, if it involves instances of „snap it up‟, an offer can be revoked even after the acceptance of the offeree. Rules for all other modern technologies In the Twenty-First Century, modern technology dominates and prevails in this modern world. After the enactment of the Contract Act in 1872, the world has had the opportunity of using modern technology in case of communication and it has been developed at a tremendous speed. Lord Wilberforce J. agreed that modern technology is developing so fast that it is not possible for law to set any fixed rule for regulating the communication via modern technologies. In the dicta of the famous case Brinkibon Ltd vs. Stahag Stahl GMBH40, Lord Wilberforce recognized this difficulty in modern methods of communication saying, “No universal rule can cover all such cases; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment where the risks should lie ....” Law can never be as fast as the modern technology. Modern technologies change within a second. But it takes a long period of time to enunciate any rule of law. This is why in case of making rules with regard to all other modern technology, the guide line provided by Lord Wilberforce may be followed, i.e., deciding the time of completion of contract by reference to the intention of the parties. The Debate of E-mail: Which method should be followed There has been a long debate on whether e-mail is a form of instantaneous mode of communication or a form of postal method of communication . But in this question our stand point is that e-mail is unique form of communication. It has similarities and dissimilarities with both instantaneous mode of communication and postal method of communication. But as we have stated earlier that rules of contract law
39 Chwee Kin Keong vs. Digilandmall.com Pte. Ltd [2005] 1 SLR 502: [2005] SGCA 2 40 Brinkibon Ltd vs. Stahag Stahl GMBH [1983] 2 AC 34
58 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 should satisfy two fundamental policies or doctrines, i.e., the doctrine of Market Individualism and the doctrine of Consumer Welfarism. Apart from these two doctrines, all the rules of every branch of law is generally drafted taking the Utilitarian Approach. For these three policies of law, it is to be stated that in case of E-mail communication, instantaneous method of communication should be followed. It will be discussed here under: Around the world, in several jurisdictions, E-mail is been considered at times as a means of Postal Method of Communication and at times as a means of Instantaneous Method of Communication. The communication of acceptance via E-mail is neither completely a form of postal method of communication nor completely a form of instantaneous method of communication. It can be proved by showing the similarities and judicial decisions from several jurisdictions, with E-mail in favor of both postal method of communication and instantaneous method of communication. The main similar feature of E-mail with postal method of communication is that in both the cases there is intervention of third parties and there is inability to foresee the pathway of the message once it is sent or posted. Internet Service Provider (ISP) acts as a bridge as like as post master or clerk of the post office. In both the cases messages are usually returned to the sender if the end address is incorrect. There is possibility of losing the e-mail and the mail via post due to uncertainty of acceptance of the acceptor. Then again, if speed is the reason for which, postal method of communication should not applied, then it can be definitely said that it can take days for the persons to read the e-mail. It was even pointed out in the Singaporean case Chwee Kin Keong vs. Digilandmall.com Pte. Ltd.41 that, “as like as the postal mails, there can be gap in time between dispatch and deemed receipt in case of E-mail.” In a recent Indian Case P.R. Transport Agency vs. Union of India & Others42 it was held that postal acceptance rule is not completely outdated; it can still apply to the modern non-instantaneous methods of communication.43 Till any amendment to the Contract Act,1872 or any new law with regard to communication of contract via e- mail comes into force, the fact that parliament have not legislated on the subject may suggest that it is their intention for the traditional postal rule to apply. E-mail also has got similarities with Instantaneous Method of Communication. Like other instantaneous method of communication, e-mail is also a very fast way of communication and where the effect is almost instant, the same rules should apply.44 It was held in the case of Thomas vs. BPE Solicitors45. In the Entores’ Case, Lord Denning held that a telex should be considered to be a form of instantaneous form of communication resulting in acceptance by telex being effective only once it was
41 Chwee Kin Keong vs. Digilandmall.com Pte. Ltd. [2005] 1 SLR(R) 502 42 P.R. Transport Agency vs. Union of India & Others AIR 2006 AII 23 43 Ibid. 44 Thomas vs. BPE Solicitors [2010] All ER (D) 306 (Feb) 45 Ibid.
Rediscovering the Rules for Communication of Contract Law in Bangladesh 59
received by the offeror and postal rule is not applicable in this point.46 Later on recently in a Canadian Case Inukshuk Wireless Partnership v. NextWave Holdco LLC (2013)47 the Superior Court of Justice, Ontario has held that “An e-mail is no different than a fax. Both are instantaneous communications.” So, from the above reasoning it can be observed that E-mail as a modern form of communication is very similar to both the Postal Method of Communication and Instantaneous Mode of Communication and there are authoritative texts on the sides both of these two. An English Authority regarding the matter is available. It is in the case of Bernuth Lines Ltd. Vs. High Seas Shipping Ltd. (2005)48 which is popularly known as the Eastern Navigator Case. In this case it was decided that E-mail is „virtually instantaneous‟ and so it is not subjected to Postal Acceptance Rule.49 In the case of Thomas and another vs. BPE Solicitors (2010)50, it was held that e-mail acceptances are effective only when received by the offeror. It is one of the characteristics of instantaneous method of communication. In the case of Chwee Kin Keong vs. Digilandmall.com Pte. Ltd.51 decision was based on the fact that the receipt rule has greater global acceptance and e-mail is very different to postal method of communication. In an Australian Case, Olivaylle Pte. Ltd. Vs. Flottweg GMBH and Co.(2009)52 it was decided that e-mail is often a form of near instantaneous communication. Apart from all these judicial authorities, people use e- mail as a speedier means of communication and they expect it to have an immediate effect. If we take the utilitarian approach, i.e., if we want to ensure maximum benefit for maximum number of people, we should take the side of the instantaneous method of communication. Because people who use e-mail as a means for communicating terms of contract, uses it only for its instant work-ability or instant effectivity. Again, the leading competing theory for the rules of law of contract „consumer welfarism‟ wants to feed reasonableness in all the rules of contract law and it highly values the expectations of the people in general. People in general wants e-mail to work immediately. Moreover, E-mail was invented for the purpose of communicating with other people immediately. So, in case of contractual communication via e-mail, it should take immediate effect. For all these reasons, though E-mail has got several similarities with Postal Method of Communication and no authority ever regarded e-mail as a completely instantaneous method of communication, rules of instantaneous method of communication should be followed. The level of the intensity of communication must be kept in mind. The required level of intensity of communication of acceptance, as mentioned earlier in
46 Entores Ltd v Miles Far East Corporation [1955] EWCA Civ 3 47 Inukshuk Wireless Partnership v. NextWave Holdco LLC et al, 2013 ONSC 5631 48 Bernuth Lines Ltd. Vs. High Seas Shipping Ltd. (2005) ( 1 Lloyds Rep 537) 49 Ibid. 50 Thomas and another vs. BPE Solicitors (2010) EWHC 306 (Ch) 51 Chwee Kin Keong vs. Digilandmall.com Pte. Ltd. [2005] 1 SLR(R) 502 52 Olivaylle Pte. Ltd. Vs. Flottweg GMBH and Co.(2009) KGAA (No 4) (2009) 255 ALR 632
60 Dhaka University Law Journal, Vol. 26 No. 2 December 2015
Entores Case53, is that the acceptance is to be audible, heard and understood by the offeror. So, It is the duty of the offeree to check whether the e-mail is been properly sent to the offeror. Taking the reasonable approach, if we dissect the whole process of E-mail communication, it can be seen that after the sender of the e-mail presses „send‟ and the message reaches the other computer almost immediately like the instantaneous methods of communication. The receiver of the message may or may not be there. But the message was received in the receiver‟s mailbox almost immediately. As the receiver may not be present there, the message may not come to the knowledge of the offeror. This is the characteristic of one way instantaneous method of communication. If we apply rules of instantaneous method of communication in case of e-mail, several problems still may arise. For example, a party to the business transaction may send an e-mail outside the office time of a company. If we follow instantaneous form of communication, contract will be binding after that e-mail is been sent. But actually none of that company will know about that acceptance. It can be a major problem in case of business transactions. To solve this problem, rules for one way instantaneous method of communication must be followed as it balances both the parties‟ interest. Impact of this study in Bangladesh There has been no research works on the communication of contracts using modern technologies in the Bangladeshi perspective. The available texts on this issue are all foreign materials and none of them are from Bangladeshi perspective. The analysis made in this work is basically based on the rules followed in the mature legal systems around the world like UK, Singapore, Australia and Canada. As we do not have any particular law in this area of contract law, if there is any dispute, we can certainly follow the approach taken in this article. Conclusion Most of the available research works on „communication of contracts‟ typically explains similarities of digital modes of communication with the existing modes of communication,i.e., postal rule of communication or instantaneous mode of communication. Most importantly, none of the research article, even the foreign articles, gave importance to the philosophical doctrines behind the rules of contract law. They totally ignored the competing ideologies while discovering the appropriate rules for communication of contract using digital technologies. In this work, we have tried to bridge this intellectual gap using philosophical doctrines with foreign persuasive authoritative texts pronounced in foreign disputes and tried to bridge this gap. So, it is recommended that the approach taken in this article should be followed while adjudicating any contractual dispute.
53 Entores Ltd v Miles Far East Corporation [1955] EWCA Civ 3
The Role of the Human Rights Committee in Standardizing the Right to Legal Aid
Dr. Farzana Akter*
1. Introduction Law aspires to administer fair judgments in disputes between parties who are unequal in respect of money, power and status.1 Yet the formal legal system is inaccessible to the poor due to a variety of factors including the exorbitant cost of engaging a lawyer coupled with other costs for travelling long distances, paying court fees and collecting evidence and judgments,inability to recognize a claim to pursue or defend, reluctance to use law and legal institutions, corruption in the judiciary and others.2 This eventually creates a justice gap between the rich and poor in the society. Legal aid is considered a ‗classic corrective‘ to such fundamental contradiction of the legal system and brings the poor into contact with it.3 According to Knaul, the purpose of legal aid is the elimination of obstacles and barriers which impair or restrict access to justice by providing assistance to those who are unable to afford legal representation and access to the court system.4More precisely, the right to legal aid can be described as both a right and an essential guarantee for the effective exercise of other human rights including the right to an effective remedy, the right to equality before the courts and tribunals, the right to counsel and the right to a fair trial.5 The International Covenant on Civil and Political Rights (ICCPR)6 has obligated States to establish the right of ‗a minimum guarantee‘ in the form of equality before
* Assistant Professor, Department of Law, University of Dhaka. 1 Vivek Maru,―Allies Unknown: Social Accountability and Legal Empowerment,‖12 (1)Health and Human Rights (2010) 84. 2 Magdalena Sepúlveda Carmona, Report of the Special Rapporteur on Extreme Poverty and Human rights, General Assembly Resolution A/67/278(9 August 2012), paras. 17-84
7. Article 14(3) reads, ―In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. The person is also entitled to choose the lawyer under this provision.‖ 8. HRC, General Comment 32, Article 14, Right to equality before courts and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32, para.10
its State Parties. Therefore, the HRC is called the guardian of the ICCPR.11As a treaty body, the functions of the Committee include three main tasks: it (1) develops General Comments, (2) formulates concluding observations on State reports, and (3) adopts views on individual communications.12 General Comments are, as Alston says, ―means by which a UN human rights expert committee distils its considered views on an issue which arises out of the provisions of the treaty whose implementation it supervises and presents those views in the context of a formal statement of its understanding to which it attaches major importance.‖13 General Comments deal with thematic or cross-cutting issues and provide detailed interpretation of generally worded provisions of the ICCPR. In its General Comment 33, the HRC states that the views of the Committee provide an authoritative interpretation of the ICCPR by a body entrusted by State Parties.14 However, General comments are not legally binding.15 Yet they possess ‗practical authority‘since they are publishedby an important body of experience that interprets matters from the perspective of the respective treaty16 and the State Parties often adopt them while submitting their reports to the HRC.17 As far as the concluding observations are concerned, State Parties to the ICCPR are obliged to submit regular reports to the HRC on how they are implementing the rights. The Committee examines each report and expresses its concerns and recommendations to the State Party in ‗concluding observations‘. Thus, the HRC
11 UN Doc. CCPR/C/SR.702 (26 March 1987), para. 4, cited in Yogesh Tyagi, The UN Human Rights Committee: Practice and Procedure (Cambridge, Cambridge University Press, 2011)109. 12 Office of the United Nations High Commissioner for Human Rights,Monitoring the core international human rights treaties
18 Supra note 15 at p. 639. 19 Christine Chinkin, ‗Sources‘, in Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, David Harris (eds.), International Human Rights Law (Oxford, Oxford University Press, 2013) 89. 20 Kerstin Mechlem, supra note 16 at p. 924. 21 Supra note 19 at pp. 89-90. 22 HRC, General Comment 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, CCPR/C/GC/33, 5 November 2008, para.11
3. Developing the Normative Contents of the Right to Legal Aid 3.1. Legal Aid for both Civil and Criminal Proceedings Paragraph 3(d) of Article 14 of the ICCPR guarantees the right to have legal assistance in criminal cases to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. Thus, the conditions to be met for getting free legal assistance under Article 14 are two-fold-first, the absence of sufficient means to pay for legal assistance and second, if the interests of justice require it. As far as the condition of ‗the absence of sufficient means‘ is concerned, existing human rights treaties do not provide the definition of ‗sufficient means‘, and the case law suggesting the level or kind of private means that may be taken into account while deciding whether or not to award legal aid is lacking.27 However, the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems28 have taken into account the applicant‘s income level and the distribution of the wealth in the household in order to determine the financial eligibility criterion for the legal aid beneficiaries. With regard to the condition of ‗in the interest of justice‘, a number of factors is taken into consideration, such as, what is at stake for the applicant based on the seriousness of the offence and the possible sentence that might result from it. In the case of Lindon v. Australia,29 the HRC has considered the gravity of the offence in order to determine whether counsel should be assigned in the proceedings. In O.F. v. Norway, the HRC decided that in relation to a defendant who had been charged with two minor offences that could only result in a small fine, the State was not required to provide State-funded legal assistance.30 On the other hand, the HRC on various occasions has held that in cases involving capital punishment, the accused must be effectively assisted by a lawyer at all stages of the proceedings.31 In Z.P. v. Canada, the HRC has even considered the existence of
27 David Harris, Michael O‘Boyle and Colin Warbrick, Harris,O'Boyle and Warbrick:Law of the European Convention on Human Rights(New York, Oxford University Press, 2009) 317; Supra note 4 at para. 39. 28 General Assembly Resolution A/RES/67/187(28 March 2013)
CCPR/C/81/D/964/2001 (2004),para. 6.8
The above expositions show that the right to free legal assistance is guaranteed to persons charged with a criminal offence under Article 14 of the ICCPR. However, Article14 sets out a series of rights and procedural guarantees which are required both in civil and criminal proceedings to ensure the proper administration of justice.37 As a result, the HRC clarifies that the right to free legal assistance can be considered to be applicable to the right of access to court and a fair hearing in the determination of civil rights and obligations or ‗in a suit of law‘ as well.The term ‗in a suit at law‘ (de caractèrecivil/de carácter civil) is more complex and it involves a set of civil and administrative matters. For example, the concept embraces (a) judicial procedures for the purpose of determining rights and obligations concerning the areas of contract, property and torts in the area of private law, as well as (b) equivalent concepts in the area of administrative law such as the termination of the employment of civil servants for other than disciplinary reasons.38 Again it may (c) include other procedures which must be examined on a case-by-case basis depending on the nature of the right in question.39 More particularly, as mentioned in General Comment 32, the HRC has called on States to provide free legal aid in non- criminal cases for individuals who do not have sufficient means to pay for it to ensure their meaningful access or participation in the relevant proceedings.40 The HRC has also inquired about the availability of legal assistance in civil matters while assessing the country‘s compliance with the ICCPR on various occasions. For instance, in response to Zimbabwe‘s report in 1998, it called on States to be proactive in addressing and remedying discrimination on women‘s right to inherit their deceased husband‘s property and has acknowledged the important role that
37 HRC, Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14): 04/13/1984. General Comment 13, para. 1. In general, the reports of State Parties fail to recognize that Art.14 applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine their rights and obligations in a suit at law. Laws and practices dealing with these matters vary widely from State to State. This diversity makes it all the more necessary for State Parties to provide all relevant information and to explain in greater detail how the concepts of "criminal charge" and "rights and obligations in a suit at law" are interpreted in relation to their respective legal systems. Para.2
41 "While welcoming the Deceased Estate Succession Act of 1997, under which a widow may inherit part of her deceased husband's estate, the Committee would appreciate further information on the steps taken to ensure that widows are madeaware of this right and that legal assistance be provided for their benefit." Report of the Human Rights Committee, U.N. Doc.A/53/40, vol.I (15 September 1998), para. 215
in a child custody case. In 2002, Germany‘s report to the HRC also demonstrated its commitment to render legal aid to both the plaintiffs and respondents.47 In sum, the development of the jurisprudence of Article 14 of the ICCPR as contributed by the HRC indicates that the international human rights law supports a right to legal aid not only in criminal cases but also in civil matters. The governments are, therefore, required to establish a national legal aid system that covers both criminal and non-criminal proceedings. 3.1.1. Ensuring Early Access to Legal Aid in Criminal Proceedings As noted earlier, the government has an obligation to ensure legal aid not only in criminal matters but also in civil proceedings. As far as the criminal proceedings are concerned, the stage when legal aid is guaranteed is critical. This is because the early stages of the criminal justice process involving the first hours or days of police custody or detention are crucial for arrested48 or detained persons49 since it determines their ability to protect their rights effectively, the length of their detention or the time when they are produced before a court and as a whole their right to a fair trial.50 Again suspects and accused persons are likely to face the greatest risk of torture or other forms of degrading treatment and unlawful detention during this period.51 As a result, the early stages of criminal proceedings have a crucial role for ensuring the efficiency and fairness of the criminal justice system.52
47 U.N. Report of the Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant—Fifth Periodic Report: Germany, CCPR/C/DEU/2002/5 (4 December 2002), para. 190
It is noted that the right to legal assistance, in practice, does not often arise at the first questioning of the criminal proceedings.53 This can result in severe consequences on the outcome of a case, and a lawyer might not be in a position to rectify this at a later point after incriminating statements have already been made without a lawyer‘s presence.54 Moreover, since investigative acts are done in the early stages of a criminal justice process with a view to collecting evidence, it determines the prospects for a fair trial.55 Article 14 of the ICCPR in its paragraph 3(b) states that every person charged with a criminal offence shall have ―adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing‖. Therefore, it can be understood that the right to legal assistance and to communicate with the lawyer belongs to a person accused of a criminal offence from the preparation to all stages of the proceedings involving the pre-trial proceedings also.56 The HRC has accordingly adopted the view that the denial of representation when requested during an interrogation amounts to a violation of rights under Article 14(3) (b) of the ICCPR on various occasions.57 For example, in the case of Gridin v. Russian Federation,58 Gridin asserts that he was not allowed to have a lawyer available to him for the first 5 days after his arrest but the State Party claimed that he was represented in accordance with the law. The State Party did not, however, oppose the claim that Gridin requested a lawyer soon after he was granted detention and that his request was ignored. Furthermore, the State Party did not oppose that Gridin was interrogated without lawyer‘sconsultation despite the fact that he repeatedly requested such a consultation. The HRC, therefore, concluded that denying the access to legal counsel after the request and interrogating during that time constituted a violation of the rights under Article 14, paragraph 3(b).59 In another instance, the HRC has made it adequately clear that the failure to provide legal aid at the time of arrest or the limitation of legal aid to
53 Auke Willems, ―The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems: A Step toward Global Assurance of Legal Aid?‖ 17(2) New Criminal Law Review(2014) 192. 54 Ibid. 55 Ibid. 56 N. A. N. Muhammad, ‗Due Process of Law for Persons Accused of Crime‘ in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York, Columbia University Press, 1981) 151-152. 57 Ramirez v Uruguay, Communication No. 4/1977, U.N. Doc. CCPR/C/10/D/4/1977 (1980), para 18< http://www1.umn.edu/humanrts/undocs/session35/R1-4.htm> accessed 2 March 2016; and Sequeira v Uruguay, Communication No. 6/1977, UN Doc CCPR/C/OP/1 at 52 (1984), para 16
serious crimes violates the provision of Article 14, paragraph 3(d).60 In 2011, the Committee ruled that the right of the complainant‘s brother to a lawyer was violated because he was not allowed access to a lawyer of his choice in pre-trial detention for 13 days.61 The authority conducted both the investigative acts and the interrogation during this period of time.62 The Committee, therefore, observed that the brother‘s right to a lawyer was violated because the brother was denied access to a lawyer during police questioning in the course of pre-trial detention. Thus, the above jurisprudential analysis and views of the HRC make it clear that legal aid in criminal proceedings is a right not only at the trial stage; it has to be guaranteed in the pre-trial proceedings also. To be more particular, the normative standard established by the HRC indicates that States are under an obligation to ensure early access to legal aid for those who have been arrested, detained, suspected of or charged with a criminal offence for the protection and promotion of his rights as part of a comprehensive legal aid system. 3.2. Effective Legal Assistance from Lawyers It is understood that the right to counsel would be meaningless if it does not include the right to effective counsel.63 The HRC has established that nominal appointment of a lawyer is not enough; States have the obligation to ensure effective and substantial legal assistance in criminal or civil matters.64 Once assigned, the lawyer must serve the client effectively- in the words of the HRC, counsel must, ―once assigned, provide effective representation in the interests of justice‖.65 In Scarrone v.
60 Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding observations: Slovakia, CCPR/C/79/Add.79(1997) (4 August 1997), para. 19
Uruguay, the HRC held that where counsel is assigned but never visits the accused or informs him about the developments in the case, access to counsel is effectively denied.66 As far as effective legal assistance is concerned, the issue of choosing a lawyer becomes pertinent. When a person who cannot afford to pay a counsel receives such assistance, he cannot be deprived of the option to select his counsel.67 Article 14 of the ICCPR, hence, clearly mentions that the person seeking legal assistance must be given the right to choose his own lawyer. In death penalty cases,the HRC has ruled that preference should be given to the choice of counsel by the accused, including appeal, even when it entails a postponement of the case.68 In general terms, the Committee has also held that where the accused is offered only a limited choice of assigned counsel, and where the counsel assigned takes ―the attitude of a prosecutor‖, (para. 1.8) the accused‘s right to adequate defence is violated.69 The ICCPR further recognizes that the accused must have the opportunity to engage and communicate with counsel and such communication must be made confidentially. Therefore, during communication the elements of both privacy and access must be satisfied.70 In fact, a violation of the right to assigned counsel occurs when there is no effective access to legal assistance.71 As a result, the HRC notes that counsel must be able ―to communicate with the accused in conditions giving full respect for the confidentiality of their communications‖.72 The right to communication implicates that no interference or censorship of the communication between counsel and client can be made, and that communications between detained persons and their lawyers are not regarded as admissible evidence against them
66 Communication No. 103/1981, U.N. Doc. Supp. No. 40 (A/39/40) at 154 (1984)
unless they become evidence of the commission of an ongoing or contemplated crime.73 Moreover, governments are under an obligation not to interfere with the access to counsel and should allow lawyers to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference.74 In the case of McLeod v. Jamaica,75 the HRC found a violation of the right to effective counsel because the counsel in a capital case argued no grounds for appeal without informing his client of that decision.76 Effective counsel on appeal, according to the HRC, would include consulting with the client and informing him of the lawyer‘s intention to withdraw the appeal or argue that it had no merit.77 In the case of Campbell v. Jamaica, the complainant alleged that in spite of his instructions, the defence lawyer failed to raise objections to the confessional evidence. More particularly, the complainant had submitted that he wished to be present during the appeal hearing, but he was absent as well as could not instruct his legal representative. In light of the circumstances of the case and that the complainant was sentenced to death, the Committee decided that the State Party should have allowed the complainant any of the two options- to instruct his lawyer concerning the appeal, or to represent himself at the appeal proceedings for effective assistance.78 Thus, the ICCPR calls on States to provide legal assistance to those who are unable to afford the cost of it or where the interests of justice require so, but the interpretation of the HRC makes it adequately clear that mere perfunctory service does not suffice, the assigned lawyer is required to act in the best interests of the client and maintain confidentiality. Lawyers must represent their clients with determination and diligence in accordance with their recognized professional duties,
73 Supra note 70. 74 General Comment 13, Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994), para.9
79 Roger Smith, ―Human Rights and Access to Justice‖, 14(3) International Journal of the Legal Profession (2007) 278; Don Fleming, Legal Aid and Human Rights, Paper presented to the International Legal Aid Group Conference, Antwerp, (6-8 June 2007) 27. 80 For instance, see –HRC, General Comment 4, Article 3 (Thirteenth session, 1981), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 4 (1994)
Dr. Raushan Ara*
1. Introduction States can commit many abuses against human rights. Some of these abuses are even more serious or have worse consequences than torture. Then also it is considerable that states have to refrain from using torture as it affects the basic pillars of the legal structure of democratic states. Torture is prohibited, and its prohibition is absolute since it implies an outrage against human dignity. This is a non-negotiable value. In contrast to those rights defined by exclusion, physical and mental integrity, the main right representing human dignity, is a right of inclusion shared by every human being, superior and indivisible. The torturer destroys the victim‟s dignity, at the same time destroys his own dignity. The problem neither begins nor ends in the violation of the right to physical or mental integrity of a detainee in order to gather information: the problem begins prior to the violation and continues afterwards.1 Torture if not prohibited may contaminate the democratic structures of a state. In this way, the entire society may be implicated in torture and contribute to the rise of a culture of violence. Thus, torture occurs “within a system” that fosters it.2 Torture, however, is not merely a residue of some pre-modern and uncivilized past, or an accidental aberration. It can also be an inherent part of modern bureaucratic life. As Darius Rejali has shown, liberal democracies have been at the forefront of the development of torture techniques, institutions of inspection and accountability that are associated with liberal democracy have not eradicated it. Instead, those institutions have developed methods of torture that leave no marks and are difficult to monitor.3 However, in this article the term „practices of torture‟ indicates „all the methods of torture‟ practiced throughout the ages. These „practices of torture‟ views are absolutely essential in order to have a link of network where holistic view of the problem of torture in a broader context is necessary. Knowledge in general or specific methods of torture ensures the minimization of the possible abuses of such
* Assistant Professor, Department of Law, University of Dhaka. This article is a modified version of Chapter -3 of the author‟s Ph.D. thesis titled “Normative and Institutional Responses to Torture in Bangladesh”. 1 Carlos González Castresana, „Torture as a Greater Evil‟ (2007) 24(1) South Central Review 119, 123. 2 Paul R Kolbet, „Torture and Origen‟s Hermeneutics of Nonviolence‟ (2008) 76(3) Journal of the American Academy of Religion 545, 550-551. 3 Tobias Kelly, „The UN Committee against Torture: Human Rights Monitoring and the Legal Recognition of Cruelty‟ (2009) 31(3) Human Rights Quarterly, 777, 799. 76 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 situations. It is important to get the idea of the overall practices of torture in order to participate in the process of interviews and investigations and modify it to make an effective means of interrogation. However, historical accounts of torture methods are also necessary for monitoring the existing practices and to modify the relating guidelines accordingly. This article at first features torture devices and how these devices became the legitimate means for justice and then the other part stands for the age of enlightenment focusing the progression of humanism and customary international law. Finally it will go for the contemporary torture and the emergence of new settings with new justifications for it. Therefore article is all about torture methods, their justified use during all through the ages and reveals various purposes of torture along with new justifications, settings and manifestations. 2 Featuring Torture Devices This section provides the entire torture methods used throughout the history be it in the form of physical or psychological abuse or as punishment, inflicted by law enforcing authorities and particularly police in detention centers and labor camps. All these abuses, authorities and centers are imperative because of the historical records they embrace and the bizarre attributes of these methods used by the concerned authorities. 2.1 Physical Abuse There are several varieties of torture in general and it is plainly evident that, since the earliest times, tremendous ingenuity has been devoted to the devisal of ever more effective and mechanically simpler instruments and techniques of torture.4 Physical torture methods have been used throughout recorded history and can range from a beating with nothing more than fist and boot, through to the use of sophisticated custom designed devices. Remarkable ingenuity has been shown in the invention of instruments and techniques of physical torture, exploiting medical knowledge of the vulnerabilities of the human body. Other types of torture can include sensory or sleep deprivation, restraint or being held in awkward or damaging positions, uncomfortable extremes of heat and cold, loud noises or any other means that inflict severe physical or mental pain.5 Physical torture, however, is in most instances directed towards the musculoskeletal system, aiming at producing soft tissue lesions and pain and usually leaving no visible or non-specific findings after the acute stage. Random and systematic beatings of specific parts of the body,
4 WordIQ.com, Torture-Definition (2010)
6 The Parker Institute, The need for Reparation for Torture Survivors from a Health Perspective (2013). 7 See above n 4. 8 See above n 6. 9 Frances Farmers Revenge, Torture through the Ages (2012)
13 TORTURE replicas.com Flute of Shame (2015) < http://torturereplicas.com/home/24-flute- of-shame.html> accessed 26 November 2016. 14 Wikipedia, Mask of Infamy (22 December 2015) < https://en.wikipedia.org/wiki/ Mask_of_infamy > accessed 26 November 2016. 15 Lordsandladies.org, Branding and Burning Tortures (2016 )
„crushing, stoning, execution by burning‟, „dismemberment‟ (removing the limbs of a human being as a form of execution through cutting, pulling etc),25 „sawing‟ (slicing the body with hanging upside down. It is generally started from the top of the body i.e. the head and causing death within few seconds. This is one of the cruel execution methods used in the Medieval Europe),26 „scaphism‟ (victim was trapped between two objects and the whole body was covered with honey. He was left like this so that insects and rodents eat him slowly),27 or „necklacing‟ (a rubber tire filled with ignite liquids was placed around the victims chest and arms. In the process of execution torturer set fire on it and the victim suffered severe burns and eventual death occurs within a very short time).28 Sometimes various implements such as: „bags or plastic tubes‟ filled with sand and whips are used for beating. Indeed, with the additional possibilities made available through modern technology, forms of torture are now almost unlimited. Certain methods of interrogation may constitute torture and inhuman treatment.29 However, some of the most frequently used techniques of the "new torture" include30: „submarine‟ where victim's sexual organs are squeezed, head is immersed continuously in a tub of filthy water, urine, excrement, and petroleum; „electric shock‟ which is indefatigable and is regularly used by the torturers. There are variety of electronic devices like „electrode‟ (used in teeth cavities or other orifices), „electro-shock machine‟, „electric truncheons‟ (used in the mouth or the anus), „electrified shields and handcuffs‟, „electric cables‟, etc.; „body extension‟ where torturers fasten the knees or ankles of the victim and beat, give electric shock or abused sexually; „water pipe‟ used for continuously injecting strong stream of water into the mouth to inflate and later on pumped out; „falange‟ having prolonged beating accompanied by pouring water sometimes, and forced to run periodically with continuously beating; „extraction‟ which is the pulling of hair, nails, tongue, teeth, breasts and genitals of the victim leading to pain, tenderness and injuries; „sexual abuse‟ where women are subjected to rape, jamming of objects into vaginas, males' genitals are subjected to beatings and shock treatment; „roll-up‟ meaning tightly strap into a bed with sheets that dry out and squeeze resulting suffocation of the victim etc. There are also other methods of torture like liquids, solids and stinging powder and even hot wax poured onto pregnant women‟s bellies which
25 Wikipedia, Dismemberment (10 November 2016) < https://en.wikipedia.org/ wiki/Dismemberment > accessed 26 November 2016. 26 History Rundown, above n 20. 27 The Paranormal Guide, Scaphism (14 December 2012) < https://www. google.com.bd/? gws_rd=cr&ei=jH45WJLtMsvVvgSbv4foCg#q=scaphism > accessed 26 November 2016. 28 Wikipedia, Necklacing (10 November 2016) < https://en.wikipedia.org/wiki/Necklacing> accessed 26 November 2016. 29 Kolawole Olusola Odeku, In Search of a Regime of Responsibility and Accountability for Perpetrators of Torture with Reference to Persons with Special Responsibility for Protecting Human Rights (PhD Thesis, University of Fort Hare, 2008). 30 Matthew Lippman, „The Protection of Universal Human Rights: The Problem of Torture‟ (1979) 1(4) Universal Human Rights 25, 33-34. 80 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 would also amount to torture. Sand-filled sacks could be used for beating victims because it was well known that this method left no traces. Also, water, either boiling hot, freezing cold or salty, was most frequently used. Burns were inflicted through the use of cigarettes, as well as candles, soldering lamps, fire launchers; ovens, etc. Exposure to the sun or to freezing temperatures could also function as an indirect instrument of torture. Animals, insects and reptiles could also be used as torture instruments. Torture inflicted by animals had a broad scope. Most frequently used were dogs that had been trained to maim and rape. Snakes, especially cobras and boas, were used mostly for psychological effect; insects like ants and bed bugs were left to crawl on the victim‟s body or inserted into various bodily orifices such as the anus. Chameleons and other lizards were introduced in the victims‟ trousers so as to scratch and bite them. Mice and rats were frequently introduced into victims‟ mouths. Sometimes having their tails set on fire, such rodents were pumped through hoses inside the victim‟s larynx. Another method is the insertion of live rats inside pipes: since at one end, the pipes were burning, the rodents would have had to dig their way to salvation through the victims‟ chests. And it is surprising that music and noise can sometimes be used to serve as a means of torture. Victims would be exposed to shrill and aggressive sounds which were bound to cause deafness. This technique was called the music of terror. The victim‟s own voice sometimes acquired the paradoxical function of brainwashing the individual at sound level.31 Torture victims also may be forced to ingest chemicals or other products such as broken glass, heated water, or soaps that cause pain and internal damage. Irritating chemicals or products may be inserted into the rectum or vagina, or applied on the external genitalia. Cases of women being punished for adultery by having hot peppers inserted into their vagina were reported in many parts of the world.32 2.2 Psychological Torture The diversity, heterogeneity or universality of certain methods of torture provides no useful indication of their severity as torture consists not only in physical violence, but also and above all in the application of a whole series of methods of intimidation, humiliation and degradation designed to subjugate the victim to the point where all capacity for judgment, resistance and sometimes even survival is lost. Torture can lead to a mental breakdown stemming from a combination of psychological and physical conditions to which the victim is subjected.33 This form of psychological torture was known as the „Second Degree‟.34 In modern times, psychological torture has all but replaced the physical torture. Time in jail, for example, is often more paralyzing than many forms of physical torture.35
31 Odeku, above n 29. 32 See above n 4. 33 Laurent Nicole, „Torture: The Need for a Dialogue with its Victims and its Perpetrators‟ (1987) 24(3) Journal of Peace Research 315, 318. 34 Daniel P Mannix, The History of Torture (Dell Publishing Company, 1964) 77. 35 George Ryley Scott, The History of Torture Throughout the Ages (Luxor Press, 1939) 4. Unruly Practices: The History of Torture Throughout the Ages 81
Psychological torture, however, such as causing panic and mental anguish can be inflicted without doing any actual physical harm to the victim. In practice the distinction between physical and psychological torture is blurred. Whereas physical torture inflicts severe pain or suffering on the victim's body, psychological torture aims at violating the victim's psychological needs by the use of extreme stressors. As physical torture, psychological torture also inflicts severe pain or suffering and even if no physical traces are left, victims often suffer from post-traumatic symptoms for a long period of time.36 Examples of psychological torture techniques include37: „sensory deprivation‟ meaning placing hood on the head with no sensory stimulation accompanied by various other torture methods of sensory deprivation; „threats‟ where threat to maim, death, and rape of the victim or his families are offered and often mock executions are conducted; „declarations‟ meaning subjecting to moral compromise regarding their family, spouse, or political beliefs; „nudity‟ in which victims are forced to remain in nudity in cold, damp, often insect-infested cells or deranged mental patients; „drug abuse‟ conducted by injecting with depressant drugs causing paralysis, inhibit breathing, and many more diseases etc. Like physical wounds, psychological and emotional scars are usually the most devastating and the most difficult to repair. Many torture survivors suffer recurring nightmares and flashbacks. They withdraw from family, school and work and feel a loss of trust.38 Psychological torture uses non-physical methods that cause psychological suffering. Its effects are not immediately apparent unless they alter the behavior of the tortured person. Since there is no international political consensus on what constitutes psychological torture, it is often overlooked, denied, and referred to by different names. Psychological torture is less well known than physical torture and tends to be subtle and much easier to conceal. Torturers often inflict both types of torture in combination to compound the associated effects.39 2.3 Torture as Punishment Most of the recorded history shows the use of torture methods as „punishments‟ which were applied to prisoners, offenders or criminals. Public executions for the earlier times were nothing but applying torturous methods in another form. The peculiar power of punishment was assented through the constant mocking of whole community.40 The Indian masterpiece the Arthashastra acknowledges certain types of torture among which six are punishments, seven types of whipping, two types of water tube and suspension. It also provides a description of each form of torture
36 See above n 17. 37 Lippman, above n 30, 34-35. 38 United Nations, International Day in Support of Victims of Torture (1998)
41 India Netzone, Trial and Torture to Elicit Confession, Removal of Thorns, Arthashastra (2010)
50 It is one of the electroshock weapon designed to incapacitate the muscle functions though no significant injury is caused. Many types of electroshock devices are developed to deliver electric shock to the victim. See for detail Wikipedia, Electroshock weapon (14 November 2016) < https://en.wikipedia.org/wiki/Necklacing> accessed 26 November 2016. 51 Wikipedia, Legcuffs (01 November 2016) < https://en.wikipedia.org/wiki/Legcuffs > accessed 26 November 2016. 52 See for detail above n 10. 53 Laws, above n 47. 54 Wikipedia, above n 5. 55 A torture method to place a cover over the entire head of the victim in order to cause segregation, fear and confusion. Along with that sometimes victim‟s hands are tied by the torturer. It is generally used in interrogation and the torturer is in advantage of unidentified authority and to act with impunity. It is sometimes used with beatings to enhance the nervousness of the victim. See for detail Wikipedia, Hooding (07 November 2016) < https://en.wikipedia.org/wiki/Hooding> accessed 27 November 2016. 56 Ruth Blakeley, „Why Torture?‟ (2007) 33(3) Review of International Studies 373, 377. 57 Revenge, above n 9. 84 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 back‟, „tying the ropes‟ (one of the inhuman torture methods applied during interrogation and in forced labor camps. Victims arms are tied behind his back and only the toes are touching the ground. The victim is hung from a high place and there are sharp sticks on the rope that cut into victim‟s flesh slowly which is very painful),58 hanging up etc. Other means included „the thumbscrew‟ (is a device designed with projecting hoops on the inner faces. The fingers of the victims are put inside the device and crushed slowly. Sometimes it is used to cut the thumbs and inflicts pain in the nail beds. This can be used in larger format to crush the victim‟s feet and ears),59 „the iron collar‟ (is a form of public punishments just like stocks. The collar had spikes, studs and filled with lead causing discomfort and pain to the wearer. It may be attached to a chain or post where the victim was subjected to laughter and maltreatment by the public)60, „compressing ankles‟, „squeezing fingers‟, „breaking victims' teeth‟, „burning with fire‟, „forcing objects down into stomach‟ and „pouring water into throat‟. 3. Torture in the Middle Age: A Central Component of Judicial System Torture in the middle ages became a part and central component of the then judicial system. People at that time used torture as an option for mob justice and a legitimate means for punishment. Torture sometimes included humiliation punishment and stood deterrent in footing. 3.1 Centering in Royal Palaces and Castles of Nobility The use of torture chamber during the Middle Ages was frequent and throughout the history these chambers have been used in a multiplicity of ways. Persecution on the basis of religion, social and political led to the widespread use of torture during that time. In the past, these chambers were located in royal palaces, castles of the nobility and even in the church. Torture chambers were used as a form of intimidation and coercion. The victims were first shown the chambers and if they confessed for particular purposes they could escape from torture as designed in those chambers. Torture chambers were windowless and built in underground, with few candles and specifically designed to bring terror, fear and misery to anyone. They featured secret trap-doors which could be used to throw victims into dark dungeons to remain and eventually faced death. The skeletal were strewn on the floor of the hidden dungeons. They also constructed with thick walls so that the yelp of the victims
58 Minghui.org, Illustrations of Torture Methods used In Chinese Detention Centers and Forced Labor Camps, Part 1(24 November 2001) < http://www.clearwisdom.net/emh/articles/ 2001/11/24/16156.html > accessed 26 November 2016. 59 Wikipedia, Thumbscrew (Torture) (21 November 2016) < https://en.wikipedia.org/ wiki/Thumbscrew_(torture)> accessed 26 November 2016. 60 Royal Armouries, Iron Collar (2016) < https://royalarmouries.org/line-of-kings/line-of- kings-objects/single-object/338 > accessed 26 November 2016. Unruly Practices: The History of Torture Throughout the Ages 85 could not be heard from the outside. There were also walls in the chambers that were curved and designed in such a fashion that reflected the screams of the victims and the sounds would not be carried to the outsiders. Sometimes there were rooms hidden behind fake walls and also pictures of the slashed necks, gouged eyes and genitals blackened were located in many torture chambers at that time.61 3.2 Standing in Deterrent Footing The Middle Ages torture was regulated systematically by law for the purpose of obtaining confession or information. The law used torture for punishing offenders in major offenses62 or for real or imagined wrongs.63 Public displays of torture in the form of punishment like stoning and crucifixion where the victims suffering was maximized were used mainly to deter other criminals.64 In certain cases torture was publicly inflicted as a warning to anyone who might transgress.65 Therefore punishment through torture was the removal of criminals from society.66 However, the early European codes were usually based on the principle of Lex Talionis, the idea of an eye for an eye.67 Punishment for crimes should be similar to the offense that would form the basis of Hebrew, Greek and Roman legal systems. Religious sacrifices also were tantamount to torture in many cultures.68 3.3 Structuring Humiliation Punishment It is in the recorded history that many states put tortures into the category of punishment to justify their use. All these punishments are degrading, having cruel indignities and contempt-bearing stage offered to political, religious and other offenders through the fifteenth, sixteenth and seventeenth centuries. This type of humiliation punishments were essential in order to promote good citizenship and maintain due order and government at that time. Certain types of torture were inflicted to perform legal and restrictive duties and focused marked benefits in the community to deter others. The very idea of ignominy was embodied and made apparent. Examples of such instruments of punishment among others include:69 „ducking stool‟ (one kind of punishment specially assigned to scolding women), „pillory‟ (offences of cheating, quarrelling, slandering, threatening, treason, sedition, blasphemy, witch-craft, perjury, wife-beating, , forestalling, forging, tree-polling,
61 Wikipedia, Torture Chamber (2012)
70 Wikipedia, above n 5. 71 Tobias, above n 3, 781. 72 Odeku, above n 29. 73 Tobias, above n 3. 74 The Middle Ages Webside, Middle Ages Torture (2012)
79 Wikipedia, above n 5. 80 See above n 74. 81 Mannix, above n 62, 29. 82 Ibid, 5. 83 Scott, above n 63, 46. 84 Christopher J. Einolf, „The Fall and Rise of Torture: A Comparative and Historical Analysis‟ (2007) 25 (2) Sociological Theory 101, 109. 85 Joseph Klaits, Servants of Satan: The Age of the Witch Hunts (Indiana University Press, 1985) 153. 86 Scott, above n 63, 135. 87 Einolf, above n 84. 88 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 the guilty.88 Religious institutions also on several occasions condemned torture on the ground of opposing the divine and human laws. According to them confession should be given voluntarily, and not by force.89 Even, during the early modern period, a change was made in the standards of proof where circumstantial evidence and the testimony of one witness were made adequate to bring a conviction instead of the requirement of two witnesses or a confession.90 And all these arguments among others against torture made the enlightenment rulers abolish torture.91 Thus, criminal law was humanized with the age of enlightenment where punishments and judicial procedures had to respect the dignity of persons. Throughout this time it has been recognized that torture was a symbol of the old regime and the barbarous custom of interrogation via torture is useless and contrary to „law, reason and humanity‟.92 Since the use of torture was made legal on the reliability of confession to establish the truth, the authorities during this time made a confession conclusive only if it is made before the court and in case of extra-judicial confessions made in the police custody provisions were made to corroborate that by independent evidence.93 Authorities were entrusted to look into the aggravated danger of torture and suggested various ways for eliminating it. And accordingly among others police torture (third degree) was made a criminal offence and in case of a trail confessional statement to a police officer was made totally inadmissible as evidence.94 And consequently legal reformers started to make increasingly persuasive arguments about the ideas of rationality and value of human life. These arguments gradually gained influence, and the sovereigns of many states were progressively convinced to abolish torture.95 This was „the end of the era of harsh physical torture‟ and the door of torture was closed at last on its use though few governments sanctioned tortures besides incarceration after this time.96 5. Progression of Humanism and the Customary International Law: Prohibition in Absolute Form With the development of Humanism in the mid-19th century torture views have drastically changed and revised according to humanist principles. These principles condemned torture as a grave violation of Human Rights and focused it as contrary to respect for the person and dignity. The English Bill of Rights of 1689 denounced
88 Odeku, above n 29. 89 See above n 74. 90 Einolf, above n 84. 91 Odeku, above n 29. 92 Napoleon Bonaparte, Letters and Documents of Napoleon: The rise to power, Vol.1 (Oxford University Press, 1961) 274. 93 David Hope, „Torture‟ ( 2004) 53(4) International and Comparative Law Quarterly 807, 812-814. 94 Sheikh Hafizur Rahman Karzon, Agency of criminal justice system: A historical review (2005) < http://www.thedailystar.net/law/2005/02/02/history.htm> accessed 8th December 2012. 95 Einolf, above n 84. 96 Revenge, above n 9. Unruly Practices: The History of Torture Throughout the Ages 89 cruel and unusual punishment that further developed in the idea of universal human rights.97 However, changes in perceptions of the value of pain also results in abolition of torture during the 18th century where medical profession began to recognize pain as absolutely negative, and influence the wider culture. After the end of the eighteenth century, torture became the greatest enemy of „humanitarian jurisprudence and of liberalism‟ and the utmost threat to law and reason. There were changes in the law of evidence derived from reason, intuition and common sense of the judge. The accused had not pronounced guilty from the onset, had the right to defend and his guilt had to be proved beyond doubt along with be verified through evidence and credible witnesses. The emergence of new criminal sanctions was there and attributed to economic changes, the development and legitimating theories of the states. It was no longer deemed sensible to establish truth by testing body and was thus all the previous „vengeance, evidence and punishment‟ are now subject to rational thoughts. A number of other aspects like the „doctrine of infamy‟ (movement to separate and define more precisely legislative and judicial powers), „theories of the rule of law and natural law‟ etc. of late eighteenth-century legal thought and culture also enlighten the process of the abolition of torture.98 Moreover the adoption of the Universal Declaration of Human Rights in 1948 by the United Nations binds all the member states on a general ban of torture that ultimately became a part of customary international law. Also, legal remedies for victims of torture are provided under the general international law by determining torture „an enemy of all mankind‟. And treaty obligations obliged the state parties to incorporate anti-torture provisions into municipal law.99 Also many states have a
97 Wikipedia, above n 5. 98 Odeku, above n 29. 99 Major treaties focusing prohibition of torture in absolute form either directly or through interpretation of these statutes among others are :International Covenant on Civil and Political Rights 1966, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1975, United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 2002, Geneva Conventions of 1949and their Additional Protocols, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 1988, United Nations Standard Minimum Rules for the Treatment of Prisoners 2015, the Code of Conduct for Law Enforcement Official 1979, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 1990, Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment 1982, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1999, Rome Statute of the International Criminal Court 1998 etc. These treaties are having treaty obligations and sometimes also bind the state parties under the general international law i.e. the customary international law. 90 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 right against self-incrimination and explicitly prohibit any type of undue force while dealing with suspects. Recently controversy arises over the „torture methods‟ (which is nothing but the veiled form of torture used in historical times with certain exceptions) used in the war on terrorism. Certain regional courts declared these types of methods to be inhuman and degrading treatment. Rulers also began the process of reversing their administration policies that permitted the use of torture100 and hence, the absolute prohibition of torture without any justification for it became a central part of civilizing mission of the nineteenth and twentieth century 101 6. Torture in the Contemporary: Emergence of Different Manifestations of Torture Torture in the contemporary is nothing but reverting tortures of primitive humans. According to certain historians „torture was fully abolished in theory and nearly abolished in practice in 19th century with a vengeance only to return in the 20th‟. Depending on situations, torture has been carried on in silence or semi-silence with official denial or known but not spoken features.102 The Economist magazine proposed the reason for torture that it indeed work in some cases where the accused is indeed guilty.103 Torture now are not restricted to totalitarian and dictatorial regimes, established democracies also are using it on the basis of national security forgoing the rights of suspects.104 Other strategies like “plausible deniability, secret police, need to know, denial that certain treatments constitute torture, appeal to various laws (national or international), use of jurisdictional argument, claim of overriding need, the use of torture by proxy” are used to circumvent legal and humanitarian duties of various states. With this denial and avoidance of prosecution, people ordering or carrying out acts of torture are not having legal consequences and impunity prevails. UN Special Rapporteur for the Commission on Human Rights, Sir Nigel Rodley, believed that impunity is the principal cause of the continuation and encouragement of human rights violations including torture and continues to be so. Not only states but also non-state actors like guerrilla groups, crime syndicate, paramilitaries and sometimes kidnappers etc. are also engaging in it.105 Today, the use of torture has continued to be routine practice in many countries, even though torture and ill-treatment are prohibited absolutely under international law. Recent debates over the fight against terrorism have revealed new techniques of torture in
100 Wikipedia, above n 5. 101 Tobias, above n 3, 782-783. 102 Einolf, above n 84. 103 Wikipedia, above n 5. 104 See above n 4. 105 Wikipedia, above n 5. Unruly Practices: The History of Torture Throughout the Ages 91 the veil of „coercive interrogation‟ as stated earlier in this article together with new attempts to justify the use of torture under certain circumstances.106 However, torture in the 20th century where diversity increases the level of violence inherent in various conflicts represents a replacement of violence by non-state actors107 causing an increase in the overall human rights violations including torture. „The third degree‟ as interrogation methods which sometimes included flogging to get information just like the earlier historical periods was officially sanctioned. Violence against citizens in the name of communism, anticommunism, apartheid, secularism, moderation against extremism or fundamentalist or in the name of national unity or identity was used and officially sanctioned. Torture methods in contemporary times resemble those used by the primitive humans, with some exceptions. Water boarding, sexual assault and abuse, electric shock, injections, internal pressure, and sensory deprivation,108 imprisonment with unusual psychological torture109 seem to have been considered appropriate by some regimes to control prisoners or suspects. Also governments found more subtle and efficient means to control their subjects such as the workhouse and the penitentiary that better fit the new methods of surveillance and control, adopted to replace torture and corporal punishments.110 All the primitive torture methods are now used and justified, the circle is indeed complete in here.111 Certain governments devised new technologies and a number of new mechanical means of torture and trained military officials from other countries. Even these devices are widely sold to prison authorities around the world. 112 Furthermore purpose of torture today is no longer „truth‟ but social display of domination. Modern torture is private, not public. Torture methods are now clinical, controlling the mind rather than the body and operate on patient. Different disciplines and professions for instance medicine, engineering, psychology, physiology etc. are engaged in inventing modern methods of torture.113 Many countries have developed techniques that „ritualized‟ the use of it and distance themselves from their „victims.‟ Torture methods are internationalized and standardized by abrogating the due process and natural justice principles and accomplished through special laws and provisions used for emergency situations
106 See above n 17. 107 Ibid, 113-116. 108 Odeku, above n 29. 109 Revenge, above n 9. 110 Einolf, above n 84. 111 Revenge, above n 9. 112 Einolf, above n 84. 113 Odeku, above n 29. 92 Dhaka University Law Journal, Vol. 26 No. 2 December 2015 like martial law or internal rebellion.114 However, in the 21st century, even when states sanction their interrogation methods, torturers often work outside the law.115 There are states that used the tactic of legal or extraordinary rendition in which prisoners were extradited to foreign governments known to practice torture to be prosecuted for crimes allegedly committed.116
7. Conclusion The history of torture is nothing but the sturdy progression of barbarous tactics, leading from one social epoch to the next and developed both in severity and diversity of the methods used. These methods are like those used by savages than anything in between. Overall, the severity of torture has fluctuated, growing and receding with the passing of each new period of time, but eventually reverting to its original state. There are several varieties of torture in general and it is plainly evident that, tremendous ingenuity has been devoted to the devisal of ever more effective instruments and techniques of torture exploiting the medical knowledge and vulnerabilities of the human body. The use of torture has continued to be routine practice in many countries around the world that standardized torture under the disguise of certain special laws, and sometimes torturer works outside the laws even leading the absolute denial of torture by authorities. The fight against global terrorism also revealed new techniques of torture, together with new attempts to justify the use under certain circumstances. Therefore the ending of harsh physical torture with the progression of human rights and customary international laws cannot stop the use of torture in its entirety instead it aggravated those forms with new settings and justifications which is absolutely very undesirable and regrettable for the whole world.
114 Lippman above n 30, 31-32. 115 Wikipedia, above n 5. 116 Wikipedia, Torture and the United States (2013) < http://en.wikipedia.org/wiki/Torture and the United States> accessed 15 January 2013.