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Messages - Talukdar Rasel Mahmud

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Law of Bangladesh / Legal mechanism against adulteration of foods
« on: April 07, 2015, 10:49:44 AM »
We cannot think of our survival without food because of its indispensable nutritional support for the body. Everyone is constitutionally entitled to get pure food. Article 15 of the Constitution says it shall be the fundamental responsibility of the state to secure the basic necessities of life including food, clothing, shelter, education and medical care under.

But adulteration of food flouts the Constitution. It has become a big threat to public health. It is silently killing virtually the whole nation with slow poisoning. Food adulteration has been plaguing our life on a massive scale over the past decade due to increased investment, an expanding market, and high consumer demands.

In food market, basic food items like rice, fish, fruits, vegetables and sweetmeats are adulterated with hazardous and toxic substances. The available food items in the market are being adulterated in different shapes and forms. For example, formalin is being used for preservation of fish, urea to whiten rice and puffed rice, calcium carbide applied to ripen fruits, and thus brick dust mixed with chilli powder, artificial sweeteners and textiles dyes used in sweetmeats.

Experts as well as physicians are worried about the serious and hazardous impact of food adulteration on health. According to their assessment, formalin applied to vegetables, fruit, fish, meat and milk may cause throat and blood cancer, childhood asthma and skin diseases. Calcium carbide may lead to cancer in kidney, liver, skin, prostrate and lungs. The colouring agents, notably chrome and erythrosine, used in spices, sauces, juices, lentils etc may cause cancer, allergy and respiratory problems.

The number of patients suffering from cancer, diabetes and kidney diseases in the country is increasing rapidly for taking adulterated food in recent times. Though medical technology is being developed day by day, our average life span is decreasing. Compared to us, our predecessors enjoyed a longer life. This is because of the pure foods they used to have while we are being deprived of taking safe and pure foods. We are affected with various diseases at an early age for taking adulterated foods available in the market, and thus embracing deaths prematurely.

Adulteration is the work of a dishonest section of businessmen, who mixes preservatives and toxic chemicals with food items to make those look fresh and natural. But, it is a matter of great disappointment that these unscrupulous businessmen frequently disappear after endangering public health. However, considering the present situation, our parliament has taken a good initiative by adopting a new law, namely, Food Safety Act, 2013, to stop the practice of food adulteration. We welcome it as the law will ensure for us a healthy survival.

The new Act provides strict punishment for food adulteration including imprisonment and fine. It has provisions for a maximum punishment of five years' imprisonment or a fine of Tk 1 million or both for persons guilty of food adulteration, and the amount of fine will be double in case of a repeat of the same offence. The Safe Food Act also has a provision for setting up of a unified authority namely the Bangladesh Food Safety Authority (BFSA), to fight against food adulteration and attend to other food-related concerns of consumers. The law also provides provisions for controlling the use of various toxic chemicals in food.

To stop the practice of food adulteration, the key requirement is strict enforcement of laws by the agencies concerned for protecting public health. The apex court of India has observed that the right to life in any civil society implies the right to food [Chameli Singh v State of Uttar Pradesh AIR 1996]. The Indian court has also observed that the maintenance and improvement of public health have a high rank as these are indispensable to the very existence of the community [Vincent v Union of India AIR 1987].

All citizens have the indispensable right to safe and secure food for survival. Many judicial decisions have been pronounced in different countries supporting right to safe food of the people for protection of health and life. As the Indian Supreme Court observed: "A healthy body is the very foundation for all human activities ….in a welfare state it is the obligation of the state to ensure the creation and sustaining of conditions congenial to good health [Bandhua Mukti Morcha v Union of India AIR 1984]."

Impure food is a significant reason for a considerable number of diseases in the entire world, and Bangladesh, is no exception. Consumption of unsafe food has become a serious threat to public health in our country in the last couple of decades. Besides implementation of laws, public awareness about and education on food safety should be enhanced.

We believe, and are optimistic that the new Food Safety Act will be able to prevent rampant adulteration of food items, and thus will ensure disease-free health for the people.

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lex actus .................................. the law governing a transaction, for example,
                                                  the applicable law of the contract.
lex causae...................................the law which the court has determined as the
                                                    governing law of an issue.
lex domicilii ................................the law of a person’s domicile.
lex fori .........................................the law of the court dealing with the issue.
                                                    Where an English court decides to apply its own
                                                     law regardless of the conflict issue, it applies
                                                 English law as the lex fori; where, however, it
                                                      determines on the application of English law as
                                                  a result of operating its choice of law rules, it
                                                        applies English law as the lex causae.
lex loci ...............................abbreviated form of lex loci actus, delicti,
                                           celebrationis, as indicated by the particular
lex loci actus ...............................the law of the place where an act was done.
lex loci celebrationis ...............the law of the place where a marriage was
lex loci contractus.......................the law of the place where a contract was made.
lex loci delicti .........................the law of the place where the wrongful act
                                                (tort) was committed.
lex loci delicti commissi..............the law of the place where a tort is committed.
lex loci solutionis........................the law of the place where the contract is to be
lex patriae ...................................the law of the nationality.
lex propria causae .......................the proper law (see below).
lex propria delicti........................the proper law of the tort (see below).
renvoi ..........................................the reference of an issue, by the conflict rules of
                                                     the foreign law to which the forum’s conflict
                                                     rules first refer the issue, to the law of the forum
                                                     or the law of a third country.
lex situs ......................................the law of the place where a thing, particularly
                                                   but not exclusively a piece of land, is situated.
situs.............................................the location of the property in question.
locus regit actum.......................the law of the place governs the deed. An old
                                                   maxim that finds its modern expression in the
                                                  lex loci rules listed above.

Liberation of Bangladesh / 10 Stages of Genocidal Process
« on: April 06, 2015, 12:33:31 PM »
Prevention of genocide requires a structural understanding of the genocidal process. Eight stages of genocidal process were developed by Gregory H. Stanton . It has been improved by ten stages recently. The first stages precede later stages, but continue to operate throughout the genocidal process. Each stage reinforces the others. A strategy to prevent genocide should attack each stage, each process. The ten stages of genocide are:
1.   Classification: Classification is the first stage of genocidal process. In this stage of classification the peoples of different cultures are categorized into “us and them” by ethnicity, race, religion, or nationality. For example- German and Jew, Hutu and Tutsi. The main preventive measure at this early stage is to develop universalistic institutions that transcend ethnic or racial divisions which actively promote tolerance and understanding. Promotion of a common language in countries like Tanzania has also promoted transcendent national identity. This search for common ground is vital to early prevention of genocide.  However, during 1971 in East Pakistan (Present Bangladesh), the West Pakistani rulers categorized the people on the basis of language and religion. For examples: Bangalees, Hindus, Pure Muslims, Anti Muslims etc.

2.   Symbolization: We give different names or symbols to the classifications. We name people “Jews” or “Gypsies”, or distinguish them by colors or dress; and apply the symbols to members of groups. Classification and symbolization are universally human and do not necessarily result in genocide unless they lead to dehumanization.

3.   Discrimination: In this stage of discrimination, the dominant group creates discrimination and uses law, custom, and political power to deny the rights of other groups.  The powerless group may not be accorded full civil rights or even citizenship. For examples: the denial of citizenship to the Rohingya Muslim minority in Burma is discrimination. Similarly the Bangalees were subject to discrimination both socially and politically in 1971 by West Pakistanis.  Prevention against discrimination means full political empowerment and citizenship rights for all groups in a society and the discrimination on the basis of nationality, ethnicity, race or religion should be outlawed.

4.   Dehumanization:  In this stage of dehumanization, one group denies the humanity of the other group. Members of it are equated with animals, vermin, insects or diseases.

5.   Organization: Genocide is always committed in an organized manner. For examples: special army units or militias are often trained and armed and plans are made for genocidal killings. It was happened during 1971 in Bangladesh. To combat this stage, membership in these militias should be outlawed. Their leaders should be denied visas for foreign travel. The U.N. should impose arms embargoes on governments and citizens of countries involved in genocidal massacres, and create commissions to investigate violations, as was done in post-genocide Rwanda.

6.   Polarization: In this stage the extremists drive the groups apart broadcasting polarizing propaganda. Laws may forbid intermarriage or social interaction. Extremist terrorism targets moderates, intimidating and silencing the center.

7.   Preparation:  In this stage the perpetrators build armies, buy weapons and train their troops and militias for genocidal killing.  Prevention of preparation may include arms embargos and commissions to enforce them. It should include prosecution of incitement and conspiracy to commit genocide, both crimes under Article 3 of the Genocide Convention.

8.   Persecution: Victims are identified and separated out because of their ethnic or religious identity. Death lists are drawn up. In state sponsored genocide, members of victim groups may be forced to wear identifying symbols. Their property is often expropriated. Sometimes they are even segregated into ghettoes, deported into concentration camps, or confined to a famine-struck region and starved.  Genocidal massacres begin.  They are acts of genocide because they intentionally destroy part of a group.  At this stage, a Genocide Emergency must be declared. If the political will of the great powers, regional alliances, or the U.N. Security Council can be mobilized, armed international intervention should be prepared, or heavy assistance provided to the victim group to prepare for its self-defense. Humanitarian assistance should be organized by the U.N. and private relief groups for the inevitable tide of refugees to come.

9.   Extermination: It begins, and quickly becomes the mass killing legally called “genocide.” It is “extermination” to the killers because they do not believe their victims to be fully human. However, when it is sponsored by the state, the armed forces often work with militias to do the killing. Similarly the Bangalees were treated as worst people by West Pakistanis.

10.   Denial: It is the final stage of genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. Similarly it happened in Bangladesh during 1971.

Books / An Introduction to Intellectual Property Law
« on: April 06, 2015, 12:14:30 PM »
Intellectual property law is that area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill. The subject matter of intellectual property is very wide and includes literary and artistic works, films, computer programs, inventions, designs and marks used by traders for their goods or services. The law deters others from copying or taking unfair advantage of the work or reputation of another and provides remedies to affected parties.
The book titled "An Introduction to Intellectual Property Law" is well organized and easy to navigate. The table of contents shows that the book mainly focuses on protection of intellectual property in Bangladesh perspective. I have also incorporated constructive discussions on both domestic & international laws of intellectual property protection in each chapter. There is also relevant legislation with references in all pages.  The most unique feature of this book is that short facts & findings of some important cases have been discussed at the end of each chapter.
The book is suggested to undergraduates and postgraduates students and also aims to be a reference point for some professionals. This book comfortably discusses all of the basic concepts and principles underpinning intellectual property rights, as well as many relevant issues connected to each right.

This book is user-friendly as the language is clear and easy to understand. Topics are discussed in question & answer pattern in a logical order. The use of subheadings helps to separate different sections and each is discussed in turn. Each topic is introduced through a historical account of the laws and provisions relevant to the relevant right. Numerous examples of cases are included which illustrate the position taken by the court. The case extracts are long enough to convey the court’s reasoning, without troubling the reader with too much text. Some diagrams & pictures are also inserted for visualization to consolidate the reader’s understanding.

DIU Law Forum (DIULF) / Keeping a wary eye on custodial torture
« on: April 05, 2015, 02:50:17 PM »
The notion of 'custodial violence' includes all types of wanton acts that cover physical and mental torture inflicted upon a person in police custody. It is a brutal and inhumane treatment to a person that often includes death and torture in police lockups. Violence in police custody most likely includes slapping, kicking, beating, sexual harassment and rape. Keeping people in lock-up like animals, providing inadequate or no food or drink, keeping men, women, children together are also brutal and inhumane practice in police custody.

Custodial violence is a crime against humanity and a naked violation of human rights. The Indian Supreme Court held it as "….nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights'[Kishor Singh Ravinder Dev Etc vs State Of Rajasthan (1980)].”

The Supreme Court of India provides some observations on torture in police custody that the torture is committed under the shield of uniform and authority in the four walls of a police station or lock-up and the victim become totally helpless [D.K. Basu vs. State of West Bengal]. It was also stated by the court that the custodial torture is a naked violation of human dignity and degrading which destroys, to a very large extent, the individual personality.

The Eighth Amendment of American Constitution provides a prohibition against cruel and unusual punishments. Likewise, the Constitution of Bangladesh also prohibits torture and other forms of cruel and degrading treatment under Article 35(5). Custodial torture and violence are clear violation of fundamental rights within the scaffold of our constitution. Some provisions of the Code of Criminal Procedure, 1898 call for judicial scrutiny by magistrates in the event of granting detentions and remand with a view to reducing, if not eliminating, custodial torture. The Penal Code, 1860 of Bangladesh also provides that causing hurt to a person in order to extract confession, wrongful confinement voluntarily, causing grievous hurt, rape and murder are punishable offences. Again, Article 35(4) of our constitution provides protection against self-incrimination. Again, a person shall not be compelled to be witness against himself and an arrested person should not be coerced and intimidation to answer self-incriminating questions under section 25 of the Evidence Act. But these provisions are being neglected by law enforcers over years.

Custodial violence is an open secret in our dehumanised authoritarian society. In this milieu, the recent placatory enactment by parliament namely the Torture and Custodial Death (Prevention) Act 2013 deserves to be appreciated. It has been made to comply with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Torture Convention").

The history of this enactment is a unique one that a bill was presented in Parliament as a private member bill by Mr. Saber Hossain Chowdhury MP as he experienced custodial torture during the regime of the BNP (Bangladesh Nationalist Party). Some people are criticising the ruling party as they think it has been passed for their protection when they will appear in opposition. But whatsoever the criticisms, the act criminalises all forms of tortures and violence in police custody.

The newly-passed law has defined custodial death as any death in custody of any public servant, death in custody in illegal detention, death during arrest by law enforcers, and death during interrogation. It defines torture as any act or omission that causes physical or mental pain to any individual for obtaining from that individual or some other individual, information or a confession, or for punishing that individual for any act or omission, for intimidating or coercing that person or some other person. It also says causing physical or mental pain to an individual through discrimination at instigation of someone or at the individual capacity or government capacity would also be considered as torture. Again it stipulates that the police, Rapid Action Battalion (Rab), Border Guard Bangladesh (BGB), Customs, Immigration, Criminal Investigation Department (CID), intelligence agencies, Ansar & VDP, Coast Guard and other public servants cannot extract confessional statement through torture.

The act also provides punishment for custodial deaths. Within the meaning of this law if anyone dies from torture in custody, the convicted individual would be sentenced to maximum life-term jail or minimum Tk 100,000 as fine or both. In addition, the convicted individual would have to pay compensation of Tk 200,000 to the family of the victim.

The law addresses delays in investigation and adjudication of the cases of custodial violence for the first time in Bangladesh as it mandates that any investigation into cases of torture will have to be completed within 90 days of registration of a complaint, and the trial will have to be completed within 180 days. It also mandates suspension of the accused from service during investigation.

The enactment has been highly commended by the Asian Human Rights Commission (AHRC). It has stated that "the enactment is the quintessence of the struggles and demands of the people, survivors of torture, families of extrajudicial executions, and human rights defenders to end the culture of custodial violence in the country". However, AHRC emphasises on more advertisement of this law by publicising for creating public awareness about it. AHRC also suggests that the new law should be included in all legal education programmes and curriculums for students of law as well as for police and judicial officers.

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