Topics

1

Law of Bangladesh / ‘You’re under arrest!’

« on: August 06, 2015, 09:17:39 AM »

You may have heard this many times in movies and TV series. However, if you hear a police officer saying this to you in real life, do not panic. Even though the law gives the police extensive power to arrest someone with or without a warrant, you have your rights too. In an event where the police wants to arrest you, you have certain things to do.

a) You may ask the police whether they have a warrant against you or not. You may also ask for reason behind your being arrested and the concerned police officer is bound to answer your queries. Article 33 of Bangladesh Constitution says “no person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.”

b) If you feel that the police is apprehending you out of a mistake, do present your proper identity (your name, address, occupation etc.) to the police. Produce your photo ID card in support of your claim.
 
c) Try to inform your family, friends or a lawyer about the arrest.
 
d) If you could not inform anybody about the arrest, tell this fact in front of the magistrate. He may help you contact your friends, family or a lawyer. Article 33 of our Constitution also says “every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
 
e) The police may take you to a lockup and ask you to give your mobile phone, money or any other belongings that you have. Then the police will prepare a list of seizure stating the items they receive from you. Do carefully check the list and then sign it.
 
f) Once you get arrested by the police, you are not obliged to answer any question asked by them. However, if you give any statement and the police write it down and ask you to sign it, make sure that the statement is properly written before you put your signature on it.
 
g) If you feel unwell at any stage of the arrest, you may ask for a medical treatment or a medical checkup through the court. If you go through any such medical treatment or checkup, carefully store the medical reports and other related documents. These documents will be treated as evidences in the trial stage.

Moreover, in the case of Bangladesh Legal Aid and Services Trust (blast) vs. Bangladesh, the High Court Division of the Supreme Court of Bangladesh has provided elaborate guidelines in the form of fifteen directives on arrest without warrant, detention, remand and treatment of suspects to be followed by law enforcement agencies and magistrates. These directives are your safeguard against a wrongful arrest. Here are some important points that the HCD has outlined in this case.

 
a) No police officer shall arrest anyone under Section 54 for the purpose of detention under Section 3 of the Special Powers Act, 1974.
 
b) A police officer shall disclose  his/her identity and show his/her ID card on demand to the person arrested or those present at the time of arrest.

c) A record of reasons of arrest and other particulars shall be maintained in a separate register till a special diary is prescribed.

d) The concerned officer shall record reasons for marks of injury, if any, on the person arrested and  take him/her to nearest hospital or government doctor.
 
e) The person arrested shall be furnished with reasons of arrest within three hours of bringing him/her to the police station.
If the person is not arrested from his/her residence or place of business, the relatives should be informed over the phone or through messenger within one hour of bringing him/her to police station.
 
f) The person concerned must be allowed to consult a lawyer of choice or meet nearest relations.

Source: http://www.dhakatribune.com/law-amp-rights/2013/jul/25/%E2%80%98you%E2%80%99re-under-arrest%E2%80%99#sthash.WhlHzsI3.dpuf

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Law of Bangladesh / Know your right to defend yourself

« on: August 06, 2015, 09:12:42 AM »

If anyone comes and hurts you intentionally, what would you do at that moment? Will you wait for the police to come and rescue you? Will you go to the court next morning and sue that offender? Under the law of our country, you need not to endure the harm and redress it afterwards.

You may resist and hurt the offender back right away with a view to defending yourself. You are legally entitled to do so without breaking any law because the law is on your side.

One thing to note is that the Penal Code terms the action private defence, not self defence. Here is a brief explanation of the laws relating to private defence.

1. Nothing is an offence which is done in the exercise of the right of private defence, says Section 96 of the Penal Code.

2. Section 97 of the same code further clarifies the provision and says, every person has a right to defend (i) his own body, and the body of any other person against any offence affecting the human body and (ii) the property, whether moveable or immovable, of himself or of any other person, against any act of theft, robbery, mischief or criminal trespass. The right to self defence remains the same aganist an attempt to commit theft, robbery, mischief or criminal trespass.

3. Section 100 of the Penal Code further broadens the right and maintains that one may actually go to the extent of killing someone in exercising his/her private defence. The section says, the right of private defence of the body ex-tends to the voluntary causing of death or of any other harm to the assailant, if the offence which gives rise the exercise of the right against any of the assaults mentioned below:
a) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault
b) Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault
c) an assault with the intention of committing rape
d) an assault with the intention of gratifying unnatural lust
e) an assault with the intention of kidnapping or abducting
f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
   
4.  Section 103 talks of right to defend one's property. According to this section, the right of private defence of property extends to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which gives rise the exercise of the right, be an offence of any of the descriptions given below:


a) robbery
b) house-breaking by night
c) mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property
d) theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
   
5.  Finally, section 102 talks of the commencement and continuation of the right of private defence. It says, the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues.

Conditions

a) Section 99 of the Penal Code deals with conditions to be fulfilled while exercising one's right of private defence.

b) There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

c) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Source: http://www.dhakatribune.com/law-amp-rights/2013/aug/29/know-your-right-defend-yourself#sthash.99ezllV1.dpuf

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Books / Juris: A layman's guide to the law

« on: August 06, 2015, 08:58:19 AM »

"Juris: A layman's guide to the law" has been published in July 2015 from Palal publication.

About the book

This book is a collection of articles that have been published in the weekly Juris section of the Dhaka Tribune during the months between July 2013 and April 2015. Articles in this book are on diverse topics that have some bearing on law. However, despite being a book containing articles on legal topics, Juris is not designed only for the people with a background in law; rather the aim of the book is to enlighten ordinary readers about the legal issues that come up on a daily basis.

In this book we have included articles on contemporary legal issues, e.g. women’s rights, rights of the third gender, rights of the indigenous people, freedom of expression in the cyber world, labour rights and workplace safety, vesting of power of impeachment of Supreme Court Judges to the parliament, right to information, prison and police reform and many more.

Articles on some of the most renowned law schools in Bangladesh, e.g. Dhaka University Law Faculty, Rajshahi University Law Department and Jagannath University Law Department are also included in the book. These articles will provide a clear picture of legal education in Bangladesh.

Some of the articles will offer useful legal information that the ordinary citizen needs to know on a day to day basis, e.g. laws relating to registration of deeds, how to execute an affidavit, how to notarise a document, how to open a company, etc.

About the editor

Abdullah Al Arif is an academic, a legal researcher and a journalist. He was born and brought up in Khulna and attended Khulna Zilla School for his secondary education and Government MM City College, Khulna for higher secondary education.

He has completed his LLB (Honours) and LLM from University of Dhaka, Bangladesh in 2008 and 2009 respectively. He has also completed a second LLM from South Asian University, New Delhi, India in 2013. During his study at SAU, he received the esteemed SAARC-India Silver Jubilee Scholarship. Furthermore, he was awarded the prestigious SAU Gold Medal for securing the first position in LLM.

Presently, he is working as a Lecturer at the Department of Law, Daffodil International University. His teaching areas include legal history, international law, intellectual property rights law, human rights law, humanitarian law, and law of the sea.

Along with these, he was the editor of Juris, the erstwhile weekly law page of Dhaka Tribune from July 2013 to April 2015. He has written numerous articles on diverse issues in all the leading newspapers of Bangladesh. One of his research papers has recently been published in Macquarie Journal of International and Comparative Environmental Law (MqJICEL), which is published by Macquarie School of Law, Australia.

The book is available on Rokomari.com: http://rokomari.com/book/101966;jsessionid=CD5310F225A96891F345AEDF42A501C2

4

Law / Teesta water rights and International Law

« on: August 04, 2015, 08:59:29 AM »

Md. Kamrul Hasan Arif

It has been argued that water shall become a major source of conflict in the 21st century. The world's most utilised trans-boundary watercourses are located in Asia. More than 400 treaties apply to various aspects or forms of trans-boundary water sources. The most important legal rule of this body of law is the principle of “equitable and reasonable use” which encompasses both a right and a duty to use an international watercourse in an equitable and reasonable manner.

The Teesta River is a non-navigable and trans-boundary water resource. Teesta River flows through three states in two countries, originating in Sikkim, and flowing through West Bengal and finally merging with Brahmaputra River in Bangladesh. Teesta is one of the important rivers in Bangladesh and also the major source of water for agriculture. In Bangladesh, directly and indirectly more than 20 million people who are highly dependent on its use for domestic and agricultural consumptions.

The Joint River Commission (JRC) was a bilateral working group established by India and Bangladesh in the Indo-Bangladesh Treaty of Friendship, Cooperation and Peace that was established in 1972. As per the treaty, the two nation's works for the common interests and sharing of water resources. The JRC contributed directly to the efforts of both nations to resolve the dispute over the Sharing of Ganges Water, facilitating bilateral agreements in 1996.

The Trail Smelter Arbitration stated that, “no State has right to use or permit the use of its territory in such a manner as to cause injury to other territory”. In 1949 ICJ decision in the Corfu Channel case, confirmed the principle of State responsibility for acts contrary to international law that occur within the territory of a State and result in injury to the other party. The ICJ's decisions on Gabcikovo Nagymaros Case and Pulp Mills case have given the important decisions for trans-boundary watercourse.

Article 5 of the UN water sharing convention 1997 stated that, “watercourse States shall in their respective territories utilise an international watercourse in an equitable and reasonable manner. And States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner.” Article 7 clearly stated that, “Watercourse States shall, in utilising an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.”

Watercourse States shall, individually and where appropriate, jointly, protect and preserve the ecosystems of international watercourses. And prevent, reduce and control the pollution of an international watercourse that may cause significant harm to other watercourse States or to their environment, including harm to human health or safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse.

The Teesta has been negotiated for several times, and along the way different arrangements have been proposed. In July 1983, India and Bangladesh entered into an ad hoc agreement which stipulated that 36 per cent of the Teesta water would go to Bangladesh while 39 percent would be India's share. However, the agreement was not implemented. In 2010, the JRC at the ministerial level of the two countries decided to sign an agreement on Teesta water sharing by 2011 and for that purpose, a draft agreement was exchanged between the parties. The draft stipulates that India and Bangladesh would each get 40 percent of the actual flow; keeping 20 percent reserved as environmental flow. However, the CM of West Bengal opposed the agreement and argued that the state needed to give its consent to the central government prior to any agreement with Bangladesh.

Teesta water is an absolute right of Bangladesh, which is recognised by many international instruments and customary international law. Earlier, Indo-Pakistan Krishenganga water sharing disputes was settled under the World Bank as a third party. Now it is high time for Bangladesh to seek remedy by such kinds of international Organizations and International courts.


The writer is a Student of LLM at South Asian University, New Delhi, India.

Source: http://www.thedailystar.net/law-our-rights/teesta-water-rights-and-international-law-117907

5

Law / How to do mutation of land

« on: August 04, 2015, 08:57:33 AM »

Raisul Islam Sourav

Mutation means insertion of the name of the new owner in the Khatiyan (Record of Rights) instead of the former owner after transferring the ownership of a land. Mutation is indispensable to establish the proprietary rights over the property. Moreover, it is essential to create new holding for the purpose of payment of rent in own name which will avert further complicacy in terms of possession and enjoyment of that land.

Ownership may be transferred through kabala/sell, gift, exchange, will, waqf, inheritance or by the Govt. through settlement of khas land to the landless. However, one cannot claim ownership of a piece of land officially without presenting the document of mutation. Additionally, without mutating the name of the new owner there is high possibility to transfer the property again by the former owner. Because he/she is the documentary owner of that land until the necessary changes took place in the Khatiyan. In addition, mutation is essential to transfer, register or payment of tax. Hence it is the duty of the new owner to mutate his/her name in the record of rights properly and cautiously.

Concerned authority to mutate land

Assistant Commissioner (AC) (Land) is the authority where an owner of a land can apply to mutate his/her name in the official record. However, there is an assistant mutation officer in the AC (Land) office who will deal the matter primarily and an officer equivalent to Najir will take the relevant fees for mutation. Nevertheless, an inquiry will be conducted by the Tahshilder (assistant settlement officer) to confirm the real ownership of the property before such mutation.

How to apply

To mutate a piece of land, the owner or his/her duly nominated representative has to apply to the AC (Land) in prescribed form collected from the AC (Land) office or on white paper along with court fees worth Tk 100 and mutation fee Tk 25 (after getting approval) accompanied by other required documents.

Additional Tk 1.50 will be required to create and transfer first three divisions from the existing undivided plot/dag. Further Tk .50 will be needed to make every subsequent division. However, the concerned officer will serve notice to the parties and the applicant is obliged to pay the process fee of Tk 1.50 for each. There is no other requirement to pay any further money for mutation.

In the application form the applicant must clearly mention the name and address of the applicant and the transferor, detail description of the land and its surrounding boundary, size, nature and identification of the land, registered deed number and date of such registration.

Moreover, the applicant ought to affix copy of main deed, via deed, copy of Khatiyan, receipt of payment of land development tax, proof of means to acquire the ownership i.e partition deed, copy of the decree or judgment obtained from competent court (if any), passport size photograph of the applicant etc. with the application.

It is noteworthy to state that no middleman or extra money is necessary to do mutation of land. Applicant himself/herself can do it by paying only prescribed fees to the Govt. exchequer. However, now 60 days is fixed to finish the whole process of mutation in metropolitan area and 45 days for any other region.

Relief against refusal

If the AC (Land) refuses to mutate the name of the applicant for default of document or for any other reason whatsoever, the aggrieved applicant can apply to the Additional Deputy Commissioner (Revenue) within 30 days from the date of such refusal. However, anyone can apply further to the Additional Divisional Commissioner (Revenue) within next 30 days against the impugned decision of the Additional Deputy Commissioner. Finally the complainant has another forum to appeal to Land Appeal Board within 90 days against an impugned order given by its immediate inferior authority.

Nevertheless, apart from appeal there is alternative option of revision against the alleged decision and any authorise superior officer can alter such order promulgated by the subordinate official after call for the pertinent records. In addition, one can apply for review to the same decision making officer to reconsider his/her decision within 30 days from the date of first decision. However, it should bear in mind that in that circumstance the petitioner will drop his/her right to file appeal.

THE WRITER IS AN ASSISTANT PROFESSOR OF LAW AT DHAKA INTERNATIONAL UNIVERSITY (DIU).

Source: http://www.thedailystar.net/law-our-rights/how-do-mutation-land-121573

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Story, Article & Poetry / "A mother in Mannville" একটি অসাধারণ ছোট গল্প

« on: August 04, 2015, 08:53:37 AM »

খুব ছোটবেলায় পড়া এই গল্পটা এখনো মনে দাগ কেটে রেখেছে। পড়ার পর অনেকদিন এই গল্পের জগতে বসবাস করেছি। যদিও গল্পের স্থান-কাল-পাত্রের সাথে আমার স্থান-কাল-পাত্রের কোন মিলই ছিল না, কিন্তু তার পরেও গল্পের মধ্যে ঢুকে যেতে কোন অসুবিধা হয়নি। এই কারনেই হয়ত গল্পটা এত ভাল লেগেছিল এবং এখনো লাগে। গল্পটি নিয়ে আর কিছু বলব না, তাতে পাঠকের আগ্রহ হারিয়ে যেতে পারে।

গল্পটা পড়তে পারবেন এক লিংক থেকে ডাউনলোড করেঃ https://rswamy.wikispaces.com/file/view/A%2BMother%2Bin%2BManville.pdf

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Law / সুপ্রিম কোর্টের নির্দেশঃ সব আদালতে ইন্টারনেট সংযোগ

« on: August 04, 2015, 08:29:00 AM »

পনেরো কার্যদিবসের মধ্যে দেশের সব আদালতে ইন্টারনেট সংযোগ স্থাপনের নির্দেশ দিয়েছেন সুপ্রিম কোর্ট। গত ২৯ জুলাই সুপ্রিম কোর্টের রেজিস্ট্রার জেনারেল সৈয়দ আমিনুল ইসলাম স্বাক্ষরিত এক সার্কুলারে এ নির্দেশ দেওয়া হয়।

‘সরকারি ব্যয়ে দপ্তরে ইন্টারনেট সংযোগ স্থাপন’ সংক্রান্ত সুপ্রিম কোর্টের ওই সার্কুলারে বলা হয়, সুপ্রিম কোর্টের সঙ্গে সকল অধস্তন আদালতের সঙ্গে যোগাযোগ তথ্য ও উপাত্ত সংগ্রহ এবং দ্রুত বার্তা আদান-প্রদান তথা বিচার প্রশাসনের দাপ্তরিক কাজকর্মের গতি আনয়নের লক্ষ্যে দেশের সকল আদালত/ট্রাইব্যুনালে ইন্টারনেট সংযোগ স্থাপন করা অপরিহার্য।
তাই জরুরি ভিত্তিতে দেশের সকল আদালত/ট্রাইব্যুনালে ইন্টারনেট সংযোগ স্থাপন করে ১৫ কার্যদিবসের মধ্যে অবহিত করার জন্য নির্দেশ দেওয়া হয়। এ ক্ষেত্রে সরকারি ব্যয়ে দাপ্তরিক ইন্টারনেট সংযোগ ব্যবহার ও নীতিমালা ২০০৪ এর বিধিবিধান যথাযথভাবে প্রতিপালন করার কথাও বলা হয়েছে।

Source: http://www.prothom-alo.com/bangladesh/article/592534/%E0%A6%B8%E0%A6%AC-%E0%A6%86%E0%A6%A6%E0%A6%BE%E0%A6%B2%E0%A6%A4%E0%A7%87-%E0%A6%87%E0%A6%A8%E0%A7%8D%E0%A6%9F%E0%A6%BE%E0%A6%B0%E0%A6%A8%E0%A7%87%E0%A6%9F-%E0%A6%B8%E0%A6%82%E0%A6%AF%E0%A7%8B%E0%A6%97%E0%A7%87%E0%A6%B0-%E0%A6%A8%E0%A6%BF%E0%A6%B0%E0%A7%8D%E0%A6%A6%E0%A7%87%E0%A6%B6

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Law / রসগোল্লার মেধাস্বত্ব নিয়ে নতুন বিতর্ক

« on: August 04, 2015, 08:24:41 AM »

রসগোল্লার উৎপত্তি পশ্চিম বাংলা নাকি ওডিশায়, তা নিয়ে ভারতে নতুন বিতর্ক শুরু হয়েছে। ওডিশা রাজ্য সরকার দাবি করছে, রসগোল্লার উৎপত্তি সেখানেই—বাংলায় নয়। এ নিয়ে পেটেন্ট করাতে চায় ওডিশা। খবর বিবিসি বাংলার।

পশ্চিমবঙ্গের রাজধানী কলকাতার ময়রা নবীনচন্দ্র দাশ ১৮৬৮ সালে প্রথম রসগোল্লা উদ্ভাবন করেন বলে অনেক ইতিহাসবিদ স্বীকৃতি দিয়েছেন। তবে ওডিশা গবেষকেরা দাবি করছেন, সেখানকার পুরী নগরে অবস্থিত জগন্নাথ দেবের মন্দিরের ভোগে রসগোল্লার ব্যবহার শত শত বছর ধরে প্রচলিত।

কিন্তু কলকাতার ময়রাসমাজ ওডিশার ওই যুক্তি মানতে নারাজ। ওডিশার গবেষকেরা বলছেন, রসগোল্লা বাংলায় গেছে উড়িয়াদের হাত ধরেই। তাই রসগোল্লার উৎপত্তি ওডিশায় হলেও তা জনপ্রিয় হয়েছে বাংলায়।

ওডিশার বিখ্যাত সাময়িকী পৌরুষ-এর সম্পাদক ও সাংস্কৃতিক বিশেষজ্ঞ অসিত মোহান্তি বলেন, ১৯ শতকের মাঝামাঝি পর্যায়ে বহু বাঙালি পরিবারে উড়িয়ারা পাচকের কাজ করতেন। তাঁদের বলা হতো ঠাকুর। সেই ঠাকুররাই রসগোল্লার রেসিপি বা প্রস্তুত প্রণালি ওডিশা থেকে বাংলায় নিয়ে গেছেন। বহু গবেষণায় এ ব্যাপারে প্রমাণ মিলেছে।
অসিত মোহান্তির ওই দাবি মানতে রাজি নন নবীনচন্দ্রের চতুর্থ প্রজন্মের উত্তরসূরি ধীমান দাশ। তিনি দাবি করেন, কলকাতার বাগবাজার থেকেই রসগোল্লার জন্ম হয়েছে।
রসগোল্লা নিয়ে এই বিতর্ক আরও বহুদূর গড়াতে যাচ্ছে। ওডিশা সরকার রসগোল্লার জন্য জিআই (জিওগ্রাফিক্যাল ইনডিকেশন) ট্যাগ দাবি করতে চলেছে। জিআই ট্যাগ হচ্ছে একটি বিশেষ অঞ্চলের পণ্যের জন্য সংবিধিবদ্ধ সুরক্ষা। এটি মঞ্জুর হলে রসগোল্লার পেটেন্ট পেয়ে যেতে পারে ওডিশা। অবশ্য এ ব্যাপারে পশ্চিমবঙ্গ সরকারও পিছিয়ে নেই। তারা রসগোল্লার পেটেন্ট নিয়ে পাল্টা আপিল করতে যাচ্ছে। এ জন্য রাজ্যের কুটিরশিল্প মন্ত্রণালয় বিস্তারিত তথ্য সংগ্রহের কাজও শুরু করে দিয়েছে।

Source: http://www.prothom-alo.com/bangladesh/article/593158/%E0%A6%B0%E0%A6%B8%E0%A6%97%E0%A7%8B%E0%A6%B2%E0%A7%8D%E0%A6%B2%E0%A6%BE%E0%A6%B0-%E0%A6%89%E0%A7%8E%E0%A6%AA%E0%A6%A4%E0%A7%8D%E0%A6%A4%E0%A6%BF-%E0%A6%A8%E0%A6%BF%E0%A6%AF%E0%A6%BC%E0%A7%87-%E0%A6%AC%E0%A6%BF%E0%A6%A4%E0%A6%B0%E0%A7%8D%E0%A6%95

9

Law / India's inter-linking of river project is devoid of legal basis

« on: August 04, 2015, 08:16:34 AM »

Dr. M. Shah Alam



Dr. M. Shah Alam
It appears from recent newspaper reportings in India and Bangladesh that India has not deviated from her decades old plan of massive inter-linking of river plan to divert substantial amount of water from Brahmaputra to her South West region. It is learnt that our Ministry of Water Resources has asked the Ministry of Foreign Affairs to contact the Indian Government to know her position and also to let India know our position on the issue. We are yet to know whether such communication has at all taken place, and what is the outcome of any communication if it has taken place.

India actually started to think of such a plan after former irrigation minister of India Dr. K.L. Rao spoke of his idea, back in 1972, of creating a national water grid for India. His proposal envisaged interlinking of rivers—Brahmaputra-Ganges and Ganges-Cauvary, for massive inter-basin diversion of water from North-East India to South-West India to make for the insufficiency of water in that region. The National Water Development Agency of India formed in 1982 took up the idea to consider it as one of her long-term water policy alternatives. In 1987, India actually included such a plan in her national water policy as a possible solvent of her water problem.

On August 19, 1994, a Dhaka based Bengali language weekly Sonar Bangla published a big front page news report giving details of India's mega project of inter-basin water diversion. The weekly referred to the then Indian Water Resource Minister Bidya Charan Shukla who admitted the existence of such a project in a press conference in Gowhati on June 6 1994. This was a time when Bangladesh had no treaty with India on sharing Ganges water, and India unilaterally withdrew water at Farakka as they wished. 30-year Ganges water sharing treaty was signed in December 1996, which gave a somewhat acceptable solution to Ganges water sharing. The provisions of the treaty unequivocally expressed resolve of both sides to solve the problems of common rivers specially water sharing issue through mutual consultations and negotiations, and not to do anything detrimental to either side, specially lower riparian. But we failed to raise or even hint at the issue of lndia's grand design which, if ever implemented, would create consequences, equal to half a dozen Farakka combined together, strangling the existence of Bangladesh.

It is only after The Daily Guardian in London had published a report on July 24, 2003, on India's grand water diversion scheme that we showed some reactions, which, inter alia, included a protest note to India on August 13. Indian President could never have enthusiastically spoken of India's water diversion plan in a ceremonial speech on the eve of her national day, which he did, nor the India Prime Minister could so nationalistically declare his resolve to take up the project on war footing, which he actually so resolved, nor the Supreme Court of India in a public litigation case on water sharing dispute between Tamil Nadu and Karnataka could instruct the Indian Government to complete the diversion project within ten years, had there been no development in the minds as well as in the practical activities of the Indian Government relating to the project. And we in Bangladesh were all kept in the darkness!

To utter surprise of every one in Bangladesh, Indian side did not even want to include it in the agenda for discussion in any meeting of the Joint Rivers Commission (JRC). India wanted by all means to avoid detailed discussion on her river linking project on the plea that it was only at 'conceptual level' and hence, there was nothing to discuss about. Bangladesh would be consulted, if its interests were affected, they kept on assuring her lower riparian. Were the project at merely conceptual level, devoid of concrete substance and distant from reality, why was India so secretive and sensitive about it, even not ready to mention and discuss the matter?

India knows the possible reactions and repercussions it would generate once the project is fully revealed. She understands the international legal implication of the practical implementation of the project. India knows the project entails massive inter-basin diversion of water of the scale and dimension unknown in history. Task force would only recommend the most optimal of the various alternatives to implement the project. If the issue of diversion of water is clear and India does not hide it, why it cannot be discussed now? The very concept of diversion of water of the common rivers by upper riparian without the consent of the lower riparian is untenable in international law and in equity. It is already a contentious issue. How can talks on it be made contingent upon completion of the work of a task force assigned to work out implementation details of the project?

Let us look back for a while. When on the basis of newspaper reports in the early fifties, the then Pakistan Government protested Indian plan of constructing Farakka barrage, India replied that it was merely a concept, and, therefore, there was nothing to talk about. The same old story. Only difference is that the story this time, if goes uninterrupted, would be many times longer and graver. While Pakistan achieved what it wanted in sharing Indus water with it India by Indus water treaty in 1960, it did not pursue its case as vigorously for Farakka in the Eastern wing. Farakka became a harsh reality and fait accompli.  Rivers are life-lines for Bangladesh. In the face of impending danger, Bangladesh is required to act and act in right earnest.

There are many international principles, norms, rules, laws, conventions and bilateral treaties on the regulation of the use of the water of international rivers and on the protection of world environment, which can provide adequate weapons to fight India's plan. Upper riparian cannot interfere with the flow of the river in a way which is substantially damaging to the interests of the lower riparian. This international norm has also been confirmed by the UN Convention on International Water Courses, 1997. Should India decide to go ahead with the project in violation of all norms, and despite the fact that her lower riparian neighbour would face grave consequences, and should there be no formidable force to resist India's environmental aggression, it is imperative for Bangladesh to think of and prepare for various alternatives as countermeasures, including, as it has been already advised by some of our experts, to build a multi-purpose Ganges barrage.

The writer is Professor of Law, University of Chittagong currently on Deputation as Member, Law Commission of Bangladesh.

Source: http://www.thedailystar.net/law-our-rights/indias-inter-linking-river-project-devoid-legal-basis-121582

10

Law / Unseen wounds of abused children

« on: August 04, 2015, 08:13:28 AM »

Khandakar Kohinur Akter

Child abuse or maltreatment constitutes all forms of physical and emotional ill-treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child's health, survival, development or dignity in the context of a relationship of responsibility, trust or power. Child abuse is the crime of harming a child in a physical, sexual or emotional ways. There are other forms of child abuse like trafficking, child labor and commercial sexual exploitation.

Research shows that child abuse is caused by abusers who suffer from dysfunctions of biological, psychological, or socio-cultural nature. Significant family dysfunction of one sort or another is almost always present in the backgrounds of repetitive abusers. These dysfunctional patterns often do not stop when abused children grow up, but continue in modified form as long as the involved parents are still living. Additionally, borderline personality traits may be characterised by explosive impulsivity and extreme mood changes that whipsaw from loving feelings to hateful feelings when frustrated or angry. Drugs and alcohol unfasten controls, which may lead to abuse.

Poverty and social disparity are common widespread international issues, and no matter the location, show a similar trend in the correlation to child abuse. Although these issues can likely contribute to child maltreatment, differences in cultural perspectives play a significant role in the treatment of children. In certain nations, son preference is also a major reason of child abuse.

It is known that a child can be abused physically, sexually and psychologically. In consequence, children who had been psychologically abused suffer from anxiety, depression, low self-esteem, symptoms of post-traumatic stress and suicidal tendency at the same rate and in some cases, at a greater rate than children who are physically or sexually abused. Among the three types of abuse, psychological maltreatment is most strongly associated with depression, general anxiety disorder, social anxiety disorder, attachment problems and substance abuse. Psychological maltreatment that occurs alongside physical or sexual abuse is associated with significantly more severe and far-ranging negative outcomes than when children were sexually and physically abused and not psychologically abused.

In reference to Bangladesh, Bangladesh Bureau of Statistics (BBS) has been conducted a survey supported by UNICEF in 2012-13. The multiple indicator cluster survey found that one in every three mothers believes that corporal punishment is needed to teach children family rules and social norms.  It is also found that to teach discipline and order two-thirds of children aged 1-14 years, are beaten by parents. The survey reported that in Bangladesh over 65% children were assaulted in any way. 4-6 % of children are suffered through physically harsh punishment and 73.6% child are beaten who are under age of 4.

Parents, family members and also teachers physically abuses children which is socially accepted but this mental set-up must be changed as the supreme court also directed rules against such physical assault inflicted to children. Moreover, in 2013 the Children Act has been enacted for the purpose of implementing the rights and obligations under the United Nations Convention on the Rights of the Child. According to section 70 of the act any person responsible for beating, torturing or abandoning a child and consequently if he suffers injury of any kind, will be punishable with five-year of imprisonment or a fine of one lac or both.

But these words seem meaningless when we see a child is killed by offenders in a broad daylight. Of course the rajon killing reminds us the importance of removing the cultural norm or mindset that 'beating children is nothing serious! While in the developed states, incidents of child abuse get utmost attention and care. So differences in these cultural beliefs demonstrate the importance of examining the legal and cultural perspectives while studying the concept of child abuse.

The writer is Lecturer in Law, School of Social Science, Humanities and Language (SSHL) Bangladesh Open University.

Source: http://www.thedailystar.net/law-our-rights/unseen-wounds-abused-children-121579

11

Law / A Research Guide on the South Asian Association for Regional Cooperation (SAARC)

« on: June 28, 2015, 04:45:01 PM »

Abdullah Al Arif, Md Ershadul Karim


Introduction
The regional organization South Asian Association for Regional Cooperation (SAARC) was established on December 8, 1985.There were initially seven member states that are mainly located in South Asia, i.e. Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. In April 2007, at the Association's 14th summit, Afghanistan became its eighth member. The Headquarter of SAARC is in Kathmandu, Nepal. His Excellency Mr. Arjun Bahadur Thapa of Bhutan is the present Secretary General of the organization (From March 1, 2014 to present).
 
History
In the late 1970's, the then Presidentof Bangladesh Ziaur Rahman proposed the creation of a trade bloc consisting of South Asian countries and with this end in view, he wrote communicated with the heads of governments of South Asian countries. The proposal was accepted by India, Pakistan and Sri Lanka during a meeting held in Colombo in 1981. In August 1983, the leaders adopted the Declaration on South Asian Regional Cooperation at a meeting which was held in New Delhi, India.
 
During the next two years the South Asian nations committed themselves to form this South Asian alliance and the process culminated in the First SAARC Summit held on 7-8 December, 1985 in Dhaka where the Heads of State or Government of the initial seven countries adopted the Charter establishing the South Asian Association for Regional Cooperation (SAARC).

 
Membership
·        Afghanistan
·        Bangladesh
·        Bhutan
·        India
·        Maldives
·        Nepal
·        Pakistan
·        Sri Lanka

 
Objectives of SAARC
According to Article I of the SAARC Charter, the Association has the following objectives:
 
·        To promote the welfare of the people of South Asia and to improve their quality of life.
·        To accelerate economic growth, social progress and cultural development in the region and to provide all individuals the opportunity to live in dignity and to realize their full potential.
·        To promote and strengthen collective self-reliance among the countries of South Asia.
·        To contribute to mutual trust, understanding and appreciations of one another problem.
·        To promote active collaboration and mutual assistance in the economic, social, cultural, technical and scientific fields.
·        To strengthen cooperation with other developing countries.
·        To strengthen cooperation among themselves in International forums on matters of common interest.
·        To cooperate with International and regional organizations with similar aims and purposes.
 
SAARC’s Principles
According to Article II of the SAARC Charter, the Association has the following principles:
 
·        Cooperation within the framework of the ASSOCIATION shall be based on respect for the principles of sovereign equality, territorial integrity, political independence, non-interference in the internal affairs of other States and mutual benefit.
·        Such cooperation shall not be a substitute for bilateral and multilateral cooperation but shall complement them.
·        Such cooperation shall not be inconsistent with bilateral and multilateral obligations.

For the full text of the research guide on SAARC, click: http://www.nyulawglobal.org/globalex/SAARC.htm

12

Law / Bangladesh’s Very Public Toilet Crisis

« on: June 04, 2015, 09:05:22 AM »

By Tahmima Anam

PEOPLE trapped in Dhaka’s notoriously gridlocked traffic have developed various coping strategies. Some take naps. Others work or catch up on social media.

My mother likes to text me to complain about the traffic. “Still stuck in Mohakhali,” she writes.

“Two hours from Gulshan to Banani!”

But one thing binds all commuters together: Make sure you use the toilet before you set off, because there won’t be anywhere to go en route.

If I could, I would write a book called “Where to Pee in Bangladesh.” It would be a useful but very short book. It would tell you, for instance, that in our capital city, there are 67 public toilets for over 15 million residents. And of those 67, many have no running water or electricity. According to a 2011 study, only five are fully functional.

The Dhaka City Corporation, which built new public toilets as part of a 2005 sanitation program, leased them to private contractors because it wanted to outsource their maintenance. But this system has not worked because the contractors often use the buildings for selling drinking water or washing cars. Sometimes, the space is rented out for people to sleep in. Some offered no sanitary facilities whatsoever.

Although the lack of public toilets in Dhaka affects both sexes, men have the distinct advantage of being able to take to the streets. They can be found squatting at roadsides, in alleyways, by railroad tracks or over ditches. When it rains, you can see a line of umbrellas next to rows of men as they crouch over a drain. And walls everywhere are treated as urinals.

The ubiquitous signs in Bengali that say “Do Not Urinate Here” are ignored. Moves to impose fines for public urination have come to nothing.

The anthropologist Mary Douglas famously defined dirt as “matter out of place”: What we consider polluted is merely a question of context. Now the Ministry of Religious Affairs has found a way to tackle the problem — by changing the context.

Its technique is to pepper the walls with Arabic script. Because, the logic runs, people won’t pee on what they consider holy.

The campaign, devised by the advertising agency Grey, features a video called “Language Matters.” It shows people painting over signs in Bengali and replacing them with Arabic. Almost no one knows what the words mean because few Bangladeshis understand Arabic. A patronizing voice-over explains, “Arabic is the sacred language of the people.”

The video shows men approaching the freshly painted walls, noticing the Arabic signage and slipping away guiltily. The men are shamed into feeling that if they were to urinate there, they would be committing an unholy act. The minister for Religious Affairs has urged men to use public toilets in the nearest mosque. I suppose he thinks he’s doing society two favors: getting men to stop urinating on the streets and getting more of them to go to mosques.

This may seem a reasonable form of behavior modification, a classic “nudge.” But the approach is deeply insensitive, because in Bangladesh, language has long been a matter of national identity.

The very seeds of our independence movement were sown when, in 1948, the government of Pakistan declared Urdu, not Bengali, the official language of East Pakistan, as Bangladesh was then known. And during the 1971 war of independence, faith and language were pitted against each other in the struggle over nationhood: The Pakistani Army would randomly stop people and ask whether they were Muslim or Bengali — as though to speak Bengali precluded being a true believer.

So the writing on the wall today contains an echo of that old conflict. It tells Bangladeshi citizens that it is acceptable to urinate on their own language, but not on Arabic. At a moment when the shadow of Islamic fundamentalism looms large, the subtext of the signage is to declare the conservative religious forces triumphant in this symbolic struggle over language.

Predictably, the ministry has been heavily censured. Critics argue that the government should spend its money on building toilets, not painting signs. And people comment sardonically that the walls of Dhaka may be covered in Arabic, but we still have nowhere to pee.

It is estimated that by 2025, Dhaka will be home to 20 million people. The government has a duty to ensure that these urban citizens — garment factory workers, rickshaw drivers, shopkeepers, truckers; in short, the people who make our city work — have access to the basic facilities they need to lead a dignified life. Researchers estimate that up to 5.5 million urban poor workers are outdoors in the city for between five and eight hours a day.

Even if the city corporation built more toilets, though, it would not begin to address the real sanitation crisis in Bangladesh: the near-total lack of access for women. In Dhaka, men can commit this private act of urinating with impunity in almost any public space. And when they do so, they are expressing their absolute freedom to do as they please — on streets where women’s basic safety is not guaranteed.

The Arabic lettering campaign focuses entirely on getting men to do their business elsewhere. Overlooked is that women can’t use the streets at all, reinforcing the social norm that public space is controlled by men and off limits to women. The invisibility of women’s needs is all too apparent in the minister’s proposal, for women are effectively barred from most mosques.

Any campaign to address the public nuisance of men urinating on the streets should also tackle the absence of facilities for women. Otherwise, we are simply saying that our streets belong to men, and our walls to Arabic.

Source: http://www.nytimes.com/2015/05/20/opinion/bangladeshs-very-public-toilet-crisis.html?smprod=nytcore-iphone&smid=nytcore-iphone-share&_r=2&utm_content=bufferda84e&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer

13

Law / Preventing street harassment

« on: June 02, 2015, 10:54:06 AM »

Kh. Kohinur Akter

Generally street harassment means and includes unwanted comments, gestures, and actions forced on a stranger in a public place and are directed at them because of their actual or perceived sex, gender, gender expression, or sexual orientation. 

Street harassment, like other forms of sexual harassment, can induce a variety negative mental health effects on victims. In research it is found that that exposure to harassment from strangers is an important factor in women's perceptions of their safety in public. Harassment from a stranger, as opposed to an acquaintance, is more likely to induce fear of sexual victimization. Another study published in 2010 reported that the experience of street harassment is directly related to a greater preoccupation with physical appearance and body shame, and is indirectly related to heightened fears of rape. Stranger harassment reduces feelings of safety while walking alone at night, using public transportation, walking alone in a parking garage, and while home alone at night.

Addressing the problem the crime prevention strategies can be applied to intervene. Crime prevention strategies attempt to reduce and deter crime and criminals. It is applied specifically to efforts made by governments to reduce crime, enforce the law, and maintain criminal justice. Criminologists have been at the forefront of analysing what work to prevent crime. Prestigious commissions and research bodies, such as the World Health Organization, United Nations have analysed their and others' research on what lowers rates of interpersonal crime.

Crime prevention strategies includes four major prevention strategies-

1. Developmental prevention refers to interventions designed to prevent the development of criminal potential in individuals, especially those targeting risk and protective factors discovered in studies of human development.

2. Situational prevention refers to interventions designed to prevent the occurrence of crimes by reducing opportunities and increasing the risk and difficulty of offending.

3. Community prevention refers to interventions designed to change the social conditions and institutions (e.g., families, peers, social norms) that influence offending in residential communities.

4. Criminal justice prevention refers to traditional deterrent, incapacitative, and rehabilitative strategies operated by law enforcement and criminal justice system agencies.

To understand how to apply those strategies, risk factors must be identified first. In Bangladesh, the major risk factors for street harassment are social format, unimproved street lighting, inadequate use of technology (less cctv monitoring), gender role of the society, violence-supportive attitude and cultural norms of the society, culture of insecurity, economic inequality, drug abuse, addiction to pornography, religious fundamentalism, inadequate and less enforcement of laws, lethargic role of police, less public awareness programs, overall less public-safety measures in the streets.

Formation of attitude towards such violence is a major concern here. People who support traditional gender-roles are more likely to express violence supportive attitude. In everyday social and family relations, violence is there. So it becomes normal to the children raising in such social format. Moreover, children who watch violence in family are also prone to violence to solve conflicts. From early childhood, boys get better treatment in families that give them a view of superior role-playing. Peer influences, exposure to pornography, portraying women in narrow sexualized ways are also responsible to form such attitude.

So saying about the prevention strategies firstly, developmental prevention can be done by incorporating educational programs in schools on gender-role, egalitarianism of gender, culture of tolerance, raising empathy for female victims, emphasizing the perceived consequence of such violence (getting caught, negative response from family and peers). Anti- violence education is applicable to people of all ages but the content and format of any educational programs should vary at different stages of human development. The infants and pre-school children, school-age children, adolescent and adults are needed to be targeted for such education.

Secondly, situational prevention can be done by designing the city establishment and by taking security measures like improved lighting, using cctv camera in public space and transport, adopting city safety plan, providing training and tips to women to avoid high-risk situation (carrying pepper spray or taking picture or video  by using cell-phone), using self-defense technique and fight back, instant protest, react and seek help from other stand- bys, reporting to the nearest police station etc.

Thirdly, community prevention can be done by ensuring safety of women in the community by watching, monitoring and prevention while street harassment happening in the community. Local NGO's, small community female groups can participate here. Adopting rape prevention program in locality or community can be an example of such prevention that already adopted by some cities.

Lastly, criminal justice prevention can be done by enforcement of laws, speedy disposal of cases and exemplary punishment by the judiciary, separate female police station for anti-violence against women, providing attention and better treatment to victims and witnesses, enforcement of rights as victim.

To note, punishments for street harassment are there under section 354 and 509 of the penal code 1860. But it is a matter to re-think that whether the punishments are adequate according to the gravity of the crime.

The writer is Lecturer of Law, Bangladesh Open University.

Source: http://www.thedailystar.net/law-our-rights/preventing-street-harassment-91015

14

Law / Student Legal Aid Forum Launched at Dhaka University on May 25, 2015

« on: May 31, 2015, 11:27:57 PM »

On May 25,160 law students representing eight universities launched a Student Legal Aid Forum in an event held at the University of Dhaka. In accordance with Section 7(g) of the Legal Aid Services Act, as Amended, the Forum is the first student-led initiative designed to increase legal literacy and citizen access to quality free legal aid services in collaboration with the National Legal Aid Services Organization (NLASO). Forum members committed to increase the visibility of government legal aid, raise awareness among marginalized groups, and facilitate links between law students and justice sector institutions. To date, the Forum has mobilized more than 100 members through its Facebook group and is followed by 388 individuals.
 
The formal launch served to build a bridge between students, university leadership, and NLASO and secure their commitment to collaborate. Syed Aminul Islam, Supreme Court of Bangladesh and former NLASO Director, congratulated students that have “taken the initiative to be part of positive change, serve the underprivileged, and promote access to justice for all citizens.” Malik Abdullah Al-Amin, current NLASO Director, encouraged “Forum members to continue to demand more, raise your voice, strengthen your network, and, most importantly, participate in any activities that have a positive change in the life of people.” Dr. Taslima Mansoor, Dhaka University Law Faculty Dean, praised the initiative and encouraged coordination with other universities. Dr. Borhan Uddin Khan, Dhaka University Law Department Chairman, and Harold D. Dampier, Jr., USAID’s Justice for All Chief of Party, also addressed participants.
 
Student participants received pocket guides on the Legal Aid Services Act as well as pamphlets and brochures on the Forum’s objectives and internship opportunities. In coming weeks, the Forum will initiate activities designed to increase the visibility of government legal aid, raise public awareness, and build practical skills among law students. Planned activities include seminars on legal aid services and legal rights, visits to courts and District Legal Aid Offices, research and studies on legal aid and contemporary issues affecting legal outcomes for marginalized groups.
 
The Student Legal Aid Forum’s Facebook group is open to the public and accessible at:  https://www.facebook.com/Student.Legal.Aid.Forum.

Source: http://www.justice-bd.org/index.php?Page=announcements&Type=news&id=237

15

Law / A Critical Review on ‘The Idea of Justice’ by Amartya Sen

« on: May 31, 2015, 11:25:48 PM »

By Tashmia Sabera

Globally respected and acclaimed Nobel laureate, Amartya Sen wrote on justice issues in his remarkable theoretical classic The Idea of Justice (Harvard University Press, 2009) and this work is now widely acknowledged to have had an immense significance in the development of contemporary jurisprudence. By taking considerable help from Indian philosophical ideas, this venerable professor of economics contributes to the justice theory and assertively challenges western hegemony in the development of legal philosophy. Idea of Justice, therefore, deserves a critical study.

The dominant view of the contemporary jurisprudence on justice is much influenced by a thought presented by famous political thinker John Rawls (1921-2002). In his view, justice or fairness can be achieved by letting people choose their conception of justice after placing them behind a hypothetical veil where they have no idea about their self-identities in the world and in that situation all would opt for equality. This is how Rawls prescribes to remove biasness with which Sen agrees. However, Sen departs from Rawls’s ideas in several aspects. One of the major departures is that unlike Rawls, Sen’s idea of justice refrains from revealing how a perfectly just society can be made; rather looks to remove manifest injustice prevailing in the society.

The theory claims that human reason can differentiate between justice and injustice through a realization process. Democracy, where public reasoning plays the central role is essential for this realization process. Sen adopts the idea of ‘nyaya’ (Sanskrit: “Judgment” or “Method”) from the Indian philosophy for explaining how the process works (p. 20). ‘Nyaya’ based system prioritizes human lives where we determine justness of an act by seeing its overall consequence, as opposed to mechanically following some institutions or rules which is analogous to the Indian concept  of ‘niti’ (Sangskrit: “Rule”). In ‘nyaya’ based system, the main task is to prevent ‘matsanyaya’, i.e. big fish eating small fish, which is a manifest injustice.

Let me clarify the process by outlining what is not within the scope of the theory. Unlike Rawls, Sen knows that even behind the veil, people might not be able to find a uniform solution because of plurality of impartial arguments. Sen poses an example of a likely problem with the connotation of distributive justice where three children argue for the ownership of a single flute. Their arguments are based on the grounds that one knows how to play it, another is very poor and has no other toy, and the third one has made the flute. These arguments respectively represents utilitarian, economic egalitarian and in Sen’s language ‘nonsense libertarian’ (p. 13). To Sen, it is not possible to reasonably reject any argument here and that makes it impossible to find a single principle for a perfectly just society. That is why, he abstains himself from giving solutions to reasonably unsolvable problems.

Part I of the book deals with the demands of justice, such as, objectivity and impartiality in reasoning. Sen begins the part believing that intelligence should be utilized for making the world a better place. Then he relies on Rawls in his ‘Justice as Fairness’ theory as it strives to avoid biasness while evaluating the justness of the conditions of the society. For that, objectivity requires judgments of reasonable persons. This concurs with the assumption that human beings are capable of reasoning beyond the narrow boundaries of self-interest.
Part II of the book deals with forms of reasoning. One of the limitations of public reasoning is that it is influenced by various societal conditions in a given time like superstitions, which Sen terms as ‘positional limitation.’ This shortcoming can be overcome by acknowledging worldwide duty to neighbours in a global perspective of justice. Plurality of conflicting reasoning is another vital problem. This can be solved to a certain extent by reasonably rejecting some alternatives. Beyond these limitations, as Sen thinks, reasoning can be an efficient tool for reducing injustice relying on the assumption that any power creates some obligation to do so.

Part III of the book deals with materials of justice. Sen emphasizes that equality of freedom where it offers ‘comprehensive opportunity’ to achieve something is necessary. Freedom has to be ensured to a person, not only in providing opportunity to choose to do something, but also freedom from any consequences which restrict such liberty. But, even if every person is given equal opportunity it might not be sufficient to address the situation of everyone without prejudice which underscores the importance of addressing the capability aspect of freedom. Capability does not equate to advantage, it includes obligation of individuals and ultimately aims at enhancement of the well-being of people.

Part IV of the book focuses on public reasoning and democracy. Sen proves that, democracy in the form of public participation has always been a global idea and not merely a western product. The theory presented by him requires global public reasoning as opposed to mere domestic ballot politics. Free and well functioning media is essential for democracy and free flow of information facilitates public reasoning and protects voices of the neglected portion in such a democracy. Human rights ought to play a dual role of ethical standard and legal entitlement because it envisages the idea of imperfect obligation, meaning duty to others and calls for the realization of economic and social rights for all.

However, the theory still has some issues to address. It can be accepted that human reason does not always incline to self-interests but it remains doubtful as to how long this may function as an obligation. Moreover, Sen naively tries to explain how positional limitation can be overcome by globalizing public reasoning, considering it to be an instant effect of its surroundings. But reducing positional limitation is scarcely possible in cases of nature influences and extremist ideologies. Again, the solution Sen provides for bad reasoning is good reasoning. Sen could have explained how he determines goodness or badness of some reasoning, especially in cases where plurality of political interpretation of facts largely confuse public as arguments can be made in line with philosophers such as Friedrich Nietzsche (1844-1900) that there are no facts, but interpretations and our preset morality is responsible for our stands.

The theory stands for removing manifest injustice and instead of providing criteria of manifest injustice, it leaves the room for reasoning the essential conditions of which he describes. Slavery, gender discrimination, artificial famine, war etc. are instances of manifest injustice according to Sen and it gives the impression that institutional evil such as, perpetual economic inequality as a necessary tool of capitalism is beyond its scope to combat. But this issue deserves more attention in a theory of justice because if slavery was an institutional form of oppression in feudal societies, why is it that the necessary evils of capitalism should not be dealt with?

Linguistic deconstruction is a distinguishable feature of the book. Sen shows the courage to use the pronoun ‘she’ to indicate general third person, though nowhere he mentions any reason for this feminist stance. Juxtaposition of plenty of oriental instances in contrast to western ones placed in the work suggests Sen’s intent to challenge western hegemony in the intellectual arena. But his compromising attitude towards status quo and maintaining a reformist attitude within the feasible limits contradicts with that spirit. For facilitating global democracy and protecting freedom of speech, the work ultimately depends on the United Nations and NGOs though the power structure of these organizations often reflects western bias. Therefore, the biggest challenge it brings with it is how to save the world from the hegemony of powerful countries.

The Idea of Justice is an excellent endeavour to see the notion of justice in the light of oriental philosophy and discourse. Considering the work as a commencement of a new era of eastern contribution, the above-mentioned unanswered issues definitely necessitates more work on the field to be initiated.

Source: http://www.dhakalawreview.org/blog/2015/05/the-idea-of-justice-851