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Latest developments in Law / Online Mutation
« on: September 19, 2022, 12:10:08 PM »

Latest developments in Law / What is next in The Gambia v Myanmar?
« on: February 25, 2020, 05:23:18 PM »
On 23 January 2020, the International Court of Justice (ICJ) in The Gambia v. Myanmar delivered its order upholding The Gambia's request for provisional measures. On the same day, the ICJ fixed 23 July 2020 and 25 January 2021 as the respective time-limits for filing of the Memorial by The Gambia and the Counter-Memorial by Myanmar. The procedural law of the ICJ, however, will allow the parties to pursue incidental proceedings side by side in different stages of the case until the final judgment. And, the result of some of the incidental proceedings may definitively determine the outcome of the case. This essay will shed light on such possible incidental proceedings that might follow in the aforesaid case.

Preliminary Objections

First of all, Myanmar may decide to go for filing preliminary objections challenging the jurisdiction of the Court and/or the admissibility of The Gambia's application. If Myanmar so decides, it will have to file preliminary objections as soon as possible, and not later than three months after delivery of The Gambia's Memorial (see Articles 79-79ter of the Rules of Court). For example, in Certain Iranian Assets (Islamic Republic of Iran v United States of America) case, the ICJ fixed 1 February 2017 and 1 September 2017 as the respective time-limits for the filing of Iran's Memorial and the Counter- Memorial of the US. Later, the US on 1 May 2017, filed preliminary objections to the jurisdiction of the Court and the admissibility of the Application (see Order of 2 May 2017). Upon filing of the preliminary objections, the proceedings on the merits will be suspended. The ICJ delivers its decision on preliminary objections in the form of a judgment meaning that such decision becomes res judicata.

Any interested third state including Bangladesh may seek to intervene in The Gambia v Myanmar under Article 62 or Article 63 of the Statute of the ICJ as the case may be. If any third state considers that it has 'an interest of a legal nature' to protect in the aforesaid case, such state may apply to the Court for permission to intervene under Article 62 of the Statute before the closure of written proceedings. On the other hand, any state party to the Genocide Convention may file a declaration under Article 63 of the Statute seeking to intervene no later than the date fixed for opening of the oral proceedings on the grounds that construction of the said Convention is a matter in issue (see Articles 81-86 of the Rules of Court).
The Case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) is the first case in the history, in which a state, i.e. Nicaragua was granted permission to intervene under Article 62 of the Statute (Judgment of 13 September 1990). In Whaling in the Antarctic (Australia v Japan: New Zealand intervening) case, the Court found the declaration of intervention filed by New Zealand under Article 63 of the Statute admissible (Order of 6 February 2013).
It should be mentioned that any states intervening under either Article 62 or Article 63 of the Statue do not ordinarily become parties to proceedings, nor are they invested with any rights or obligations attached to the parties. Such states are generally called non-party interveners. Any third state intervening under Article 62 of the Statute can become a 'party' when it has necessary consent to that effect from the parties to the case. A non-party intervener, under Article 62, will not be bound by the judgment of the case, nor will the judgment become res judicata for it. By contrast, a state intervening under Article 63 of the Statute will be bound by the Court's judgment to the extent it relates to the intervention.

The Gambia and/or Myanmar may notify, at any time before the final judgment on the merits, either jointly or separately, the ICJ that they have agreed to discontinue the proceedings. The Court will then pass an order recording the discontinuance and direct that the case be removed from the list. Alternatively, The Gambia, as the applicant, may unilaterally inform the Court in writing that it will not go on with the proceedings. In the latter case, the ICJ will follow the procedures laid down in Article 89 of the Rules of Court (see Articles 88-89 of the Rules of Court). In Case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Nicaragua informed the ICJ that it had decided to renounce all further right of action and was not willing to continue with the proceedings. Since the US also indicated its acquiescence to Nicaragua's request for discontinuance of the proceedings, the Court removed the case from the list (Order of 26 September 1991).

The Rules of Court permit the contending state parties to discontinue a case as a result of out-of-court settlement. In Case concerning Aerial Herbicide Spraying (Ecuador v Colombia), the ICJ removed the case from its list after the Ecuador notified the Court that it had concluded a settlement agreement with Colombia, and that Colombia made no objection to the discontinuance of the case as requested by Ecuador (Order of 13 September 2013).
The Case concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States of America) sets an example of joint decision taken by the contending state parties so as to discontinue an ICJ proceeding. The agents of Iran and the US jointly notified the Court that their governments had agreed to discontinue the case (Order of 22 February 1996). In Questions relating to the Seizure and Detention of Certain Documents and Data (Timor Leste v Australia) case, Timor-Leste decided to discontinue the proceedings in view of the fact that Australia's action of returning the seized documents had effectively ended the dispute between the two contending states (Order of 11 June 2015).

The Gambia or Myanmar may at any point of time decide not to take part in the proceedings of the case any further. This is popularly known as non-appearance. Non-appearance is governed by Article 53 of the Statute of the ICJ. In Fisheries Jurisdiction Case (United Kingdom v Iceland), Iceland never appeared before the Court. In Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), the US initially appeared before the ICJ, however, later refrained from taking part in the proceedings after the Court had decided that it had jurisdiction to deal with the case. In accordance with the ICJ's ruling in the foregoing case, a non-appearing party continues to remain a party to the case (provided that the Court has jurisdiction), and is bound by the judgment as per Article 59 of the Statute.

Lastly, the ICJ, either at the instance of the parties or proprio motu, may again indicate provisional measures, or revoke/modify the earlier provisional measures at any time in connection with the proceedings of The Gambia v Myanmar (see Articles 73-76 of the Rules of Court). The Rules of Court allows Myanmar to submit counter-claims in its Counter-Memorial, however, the factual background of the case does not seem to warrant such possibility (Article 80).

Research & Publication / Can we overcome our academic inertia?
« on: February 24, 2020, 06:02:37 PM »
The first academic journal, Le Journal des Sçavans, was published on January 5, 1665 from Paris. Over the past three centuries—according to the latest STM Report 2018 by the International Association of Scientific, Technical and Medical (STM) Publishers—the number of peer-reviewed journal grew by about 3.5 percent a year. In recent years, however, this growth could be as high as 6 percent. Global databases like Web of Science and CrossRef indicate—with an annual addition of 3 million journal articles—by the end of 2020, the total number of published research papers would be more than 80 million. It means, by the time you finish reading this opinion piece, 40 new journal articles will be published!

In this huge volume of global research, Bangladesh's research is quite small. The world's largest journal publisher Elsevier manages Scopus, one of the biggest online platforms that catalogues academic journals. Out of more than 70 million research articles it holds, about 48,500; 0.07 percent are from Bangladesh. Scopus currently maintains 22,000 active journals, including 16 from Bangladesh. To put this into the South Asian context, 526 journals on this database are from India, 97 from Pakistan, 7 from Sri Lanka, and 6 journals are from Nepal.

Journal Impact Factor is a globally-recognised scoring system that indicates the impact, as well as the reputation, of an academic journal. The more a journal's papers are cited, the larger its score gets and the greater its impact on the academic discipline it belongs to. Every year, Philadelphia-based Clarivate Analytics publishes Journal Citation Reports where Impact Factors of journals are declared. In the latest report published in June 2019, about 12,000 peer-reviewed journals received "Impact Factor 2018", and only four of them are from Bangladesh. I have been involved with the Bangladesh Journal of Plant Taxonomy since 2006. My journal received its first Impact Factor in 2010. Since then, no new Bangladeshi journal received an Impact Factor.

Given a very small number of Bangladeshi journals are in the above two databases, one may wonder how many academic journals are actually published from Bangladesh. In the absence of an exhaustive list, this is very difficult to answer. In 2007, INASP (International Network for the Availability of Scientific Publications), an Oxford-based charity, established an online platform called BanglaJOL or Bangladesh Journals Online. This platform currently has 143 Bangladeshi journals. Given the huge increase in universities in the last decade—from 82 in 2009 to 151 in 2019—we can estimate Bangladeshi academic institutions and academic societies are publishing another one hundred journals outside the BanglaJOL.

Being included in the Scopus or receiving an Impact Factor means that a journal has maintained the basic publishing standards. But, most of our journals do not do that. The BanglaJOL, for example, has classified 48 percent of its 143 journals as "inactive", as they are not published online regularly, and on time—one of the major practices to measure a journal's standard. As per the Journal Publishing Practices and Standards (JPPS), about 40 percent BanglaJOL journals are yet to attain minimum publishing standards; many of which are published by old, prestigious learned societies.
Although almost all Bangladeshi journals are struggling to get international recognition, there is in fact no motivation or incentive for improving their standards. A recent analysis has identified several reasons for, let us call it, "academic inertia". First, the cost of publishing a journal in Bangladesh is very small, on average around USD 1,000 per issue. It is mostly paid by the concerned society, research institution, or often by the government ministries. So, funding is not an issue to publish a journal in Bangladesh. Second, the manuscripts journals receive from Bangladeshi authors are sufficient to publish normally two issues per year. So, these journals do not need international authors as a source of manuscripts. Third, despite being internationally-unrecognised, authors of Bangladeshi journals are largely okay with the quality of these journals, since publishing papers in these journals are helping them to get recognition, and also promotion, to be specific.

This inertia is harming Bangladesh's research ecosystem and reputation. A large amount of Bangladesh's research published in Bangladeshi journals remain unrecognised by the global academic community. Our public research spending—for example, during 2009-2018, the Ministry of Science and Technology funded around USD 45 million in research—that supports those researches also remain unappreciated.
In addition, most of our non-indexed journals are vehicles to advance our career by taking advantage of the limitations of the current recruitment and promotion rules, for example, of the universities. The University Grants Commission (UGC) of Bangladesh has proposed a unified guideline for recruitment and promotion of public university teachers, which demands publishing in journals with Impact Factor or indexed in Scopus. But this may not help to improve the poor standards of many Bangladeshi journals.

To break this academic inertia and to make Bangladesh's journals better, as a first step, we need to organise dialogues and conversations among Bangladeshi researchers, journal editors, Bangladesh Agricultural Research Council (which coordinates 10 national agricultural research institutes), UGC, and the concerned ministries. Such discussions will fill in the knowledge gaps on academic publishing standards, remove our misunderstandings, help us to understand where globally Bangladesh's research and research communication stand, and update us about the global scholarly publishing system.

These should also build trust among the stakeholders for taking collective actions to improve Bangladesh's academic publishing ecosystem. The final outcome of these discussions should be a clear framework outlining the road to improve.
The framework will highlight how to establish a national system to oversee and guide our journals' quality and standards. And how Ministry of Science and Technology, Ministry of Education, UGC, Directorates of Archives and Library, and BARC can work together and formulate "National Journal Publishing Rules". These rules will gradually be echoed in the recruitment and promotion rules of the universities and research institutes of Bangladesh, updating which is direly needed. The proposed rules should also establish a "Bangladesh Journal Watch" to monitor the quality of Bangladeshi journals in light of the global academic publishing system.

Now the question is, can we soon start the conversation under the leadership of the UGC, prepare a framework to improve Bangladesh's academic publishing system in 2021—the Golden Jubilee of our independence, and aim at making drastic improvements to our academic journal system by 2024—the year Bangladesh graduates to middle-income country? Are we ready for it?

National & International Seminars / International Conferrence News
« on: March 04, 2019, 01:33:59 PM »
Please have a look----

Bangladesh Bar Council / Notice for Bar Council Registration
« on: March 04, 2019, 01:31:03 PM »
Dear students have a look-------

13th Winter Residential on Economic, Social, and Development Rights


Corporate Legal Job / Job Circular
« on: November 15, 2018, 03:44:51 PM »
Bangladesh Telecommunication Regulatory Commission is looking for suitable candidate for the following position:


The recently approved Road Transport Act 2018 has long been in the works but was accelerated for enactment by the Bangladesh Parliament in response to the groundbreaking student protests for road safety in August 2018. The Preamble to the 2018 Act states that it is being passed with a view to replacing the Motor Vehicles Ordinance 1983 keeping provisions largely unchanged save where change was necessary to modernise the law and satisfy the demands of the day. Unfortunately, upon primary inspection of Chapter 9 of the Act- which deals with compensation claims for road deaths and injuries- it can be said that the new law arguably leaves victims in a worse off situation than the 1983 Ordinance.
The major issue with the Act is the non-operation of vicarious liability within compensation claims. The imposition of vicarious liability is crucial because it is one of the main ways in which the root causes of road accidents (e.g. rash driving incentivised by payment per trip instead of weekly wages, shoddy recruitment of unqualified drivers and operation of unfit vehicles etc.) can be addressed since these factors are in the full control of motor vehicle owners acting as employers. Thus, it is only when motor vehicle owners are vicariously held liable for the negligence of their employees and forced to pay damages for accidents arising out of such negligence will they feel compelled to address these root causes. In this regard, Section 111 read with Section 128 of the 1983 Ordinance granted victims the right to sue for compensation not only from insurance providers but also motor vehicle owners in the event insurance coverage was inadequate, therefore imposing vicarious liability on employers for the purposes of compensation.
Unfortunately, Chapter 9 (namely sections 52 and 53) of the 2018 Act replaces this right of the victim to sue for compensation with a right to 'apply for compensation' from a rather charitably titled 'Arthink Shohoyota Tohobil' i.e. 'Financial Aid Fund' (one may wonder if its purpose is to compensate then why it is not called a compensation fund). Section 59 sets down the procedure a claimant must follow when they 'apply for financial aid' from this fund.
Regrettably, the Act seems to use the term 'compensation' and 'financial aid' for the purposes of claims under this fund interchangeably and does not seem to adequately appreciate the difference between the two, which is problematic since 'aid' is always gratuitous whereas compensation is an entitlement as of right.
Section 57 of the Act states that this fund will be established from five main sources: grants from the Government, contributions from motor vehicle owners, fines obtained under the Act and grants from motor vehicle owners' and workers' associations. This, therefore virtually nullifies the operation of vicarious liability in compensation claims since it imposes no specific compensation liability on the motor vehicle owner whose employee (i.e. the chauffeur) causes a road death or injury in any given case. Additionally, it is important to bear in mind that fines can only be imposed on those who incur criminal liability, which would not apply to motor vehicle owners (i.e. the employers) since vicarious liability does not operate in criminal law. As such, if the landmark case of Catherine Masud v Kashed Miah and Others (where vicarious liability was imposed on different types of bus owners for the road crash that led to Tareque Masud's death to pay 4.4 crore in compensation), was to be filed under the 2018 Act, rather than the 1983 Ordinance, the claimant would simply not be able to impose compensation liability on the bus owners.
Another major setback of the 2018 Act is its failure to impose a mandatory duty of insurance on motor vehicle owners (including third party risks) as section 109 of the 1983 Ordinance did (and in fact section 46(1) of the 2017 Road Transport Bill did as well). This is a crucial omission since insurance plays a cardinal role in speeding up compensation claims in road accident cases.
While it is appreciable that the law introduces a state administered fund for the exclusive purpose of granting relief to road accident victims, such an introduction should not replace the victim's preexisting right to sue for compensation under the 1983 Ordinance, rather it should exist in addition to this right as they serve two distinct purposes. While the fund ought to provide immediate and interim relief to victims in the short term, more substantial compensation ought to be claimable from a civil compensation tribunal in the long term. As such, it must be recognised that a road accident victim's right to sue for compensation and their ability to apply for financial aid are certainly not one and the same.

আগের বিয়ের আপিল চলাকালে আবার বিয়ে বৈধ
ভারতে হিন্দু আইনে বিবাহবিচ্ছেদের বিরুদ্ধে আদালতে আপিল অপেক্ষমাণ থাকাকালে দ্বিতীয় বিয়ে জায়েজ বলে মনে করেছেন দেশটির সর্বোচ্চ আদালত।

হিন্দু আইন অনুযায়ী বিবাহিত কোনো দম্পতির একজন তাঁর সঙ্গীর কাছ থেকে বিচ্ছেদ চাইলে অন্যজন এর বিরুদ্ধে আপিল করতে পারেন। আপিল খারিজ হয়ে গেলে পুনরায় বিয়ে করতে পারবেন। এবং এটি বৈধ হবে। কিন্তু দেশটির সর্বোচ্চ আদালত বলেছেন আপিল চলাকালে দ্বিতীয় বিয়ে অবৈধ হবে না।

বিচারপতি এস এ ববদে ও বিচারপতি এল নগেশ্বরা রাও বলেন, বিবাহবিচ্ছেদের বিরুদ্ধে করা আপিলের রায় না হওয়া পর্যন্ত প্রথম বিয়ে বহাল রয়েছে, এমনটা নয়। তাই এই সময়ের মধ্যে আবার বিয়ে অবৈধ হবে না।

আইনের ১৫ ধারায় বলা হয়েছে, বিবাহবিচ্ছেদের ডিক্রির দ্বারা সংসার ভেঙে যায় অথবা সেখানে যদি ডিক্রির বিরুদ্ধে আপিলের কোনো অধিকার না থাকে অথবা যদি আপিলের সুযোগ থেকেও থাকে, কিন্তু নির্দিষ্ট সময়ের মধ্যে আপিল না করে অথবা দায়ের করা আপিল খারিজ হয়ে যায়, তাহলে আবার বিয়ে করা আইনসম্মত। আর ৫(১) ধারা অনুযায়ী বিধবা ও বিপত্নীক দুজন হিন্দু নারী-পুরুষ বিয়ে করতে চান তাহলে তা করা যাবে।

দিল্লি হাইকোর্ট এক আবেদনের পরিপ্রেক্ষিতে বলেছিলেন, বিবাহবিচ্ছেদের বিরুদ্ধে আপিল বহাল থাকা অবস্থায় বিয়ে করলে তা আইনের ৫(১) ধারার সঙ্গে সাংঘর্ষিক হবে। এবং এ বিয়ে অকার্যকর হবে। ওই ব্যক্তির দ্বিতীয় স্ত্রীর করা এক আবেদনের পরিপ্রেক্ষিতে হাইকোর্ট এ আদেশ দিয়েছিলেন। ওই ব্যক্তি হাইকোর্টের এ রায় চ্যালেঞ্জ করে সর্বোচ্চ আদালতে আপিল করেন। সুপ্রিম কোর্ট হাইকোর্টের রায়কে পাশ কাটিয়ে বলেন, এই দম্পতির বিয়ে বৈধ।
এই ব্যক্তির প্রথম স্ত্রী তাঁর সঙ্গে দাম্পত্য সম্পর্ক ছিন্ন করেন। কিন্তু তিনি এর বিরুদ্ধে হাইকোর্টে আপিল করেন। আপিল চলাকালে তিনি তাঁর স্ত্রীর সঙ্গে সমঝোতায় পৌঁছান এবং বিবাহবিচ্ছেদ গ্রহণ করতে ও আপিল আবেদন তুলে নিতে আদালতে আবেদন করেন। এসব আবেদনের বিষয়ে হাইকোর্ট রায় দেওয়ার আগের দিন রাতেই এই ব্যক্তি দ্বিতীয় বিয়ে করে বসেন। কিন্তু তাঁর নতুন সংসার সুখের হয়নি। ঝগড়া-বিবাদ লেগেই থাকত। এরপর তাঁর দ্বিতীয় স্ত্রী এই বিয়ের বৈধতা নিয়ে আদালতের দ্বারস্থ হন। তিনি আবেদনে বলেন, আগের বিবাহবিচ্ছেদের আপিল শুনানি চলাকালে এ বিয়ে হয়েছে, তাই এর বৈধতা নেই। পারিবারিক আদালত তাঁর এই আবেদন খারিজ করে দেন। কিন্তু হাইকোর্ট তাঁর পক্ষে রায় দেন, বলেন তাঁর এ বিয়ে অকার্যকর।

কিন্তু সর্বোচ্চ আদালত দুই পক্ষের শুনানি শেষে বলেন, আইনের ১৫ নম্বর ধারা লঙ্ঘন মানে এই না যে বিয়ে অকার্যকর।


ADR / Video Link for Mediation and Negotiation
« on: July 15, 2018, 02:16:07 PM »
Please go through the following links for having experienced with Mediation and Negotiation:



‘Forced Sex’ Certainly A Ground To Seek Divorce, Says Punjab & Haryana HC

If on appreciation of evidence and nature of the allegations corroborated by other circumstances, it is established that it is probable that one of the spouses has indulged in above said unnatural acts, the marriage can be dissolved by a decree of divorce, the bench said. The Punjab and Haryana High Court has observed that forced sex can certainly be a ground to seek separation or decree of divorce. In the divorce petition, the wife had alleged that her husband forced sex against her wishes and moods even during the painful period of menses. She also said her husband persistently committed sodomy and despite her resistance and she was forced to continue with his unnatural behaviour. However, the family court refused divorce. The high court, while reversing the findings of the family court, observed that there were allegations of demand of dowry, beating, commission of unnatural sex, creating such circumstances that the wife was compelled to leave his place 8 years ago. It held that the wife suffered both physical as well as mental cruelty. The court, perusing the records, observed: “The totality of the circumstances available on the record indicate that the appellant has, on account of unbearable circumstances left the matrimonial home. No wife having a child would abandon her matrimonial home if there are no compelling circumstances.”

Read more at:

Well said

Sojan Francis v. M.G. University (2003 (2) KLT 582

In the above case, the kerala HC order that Political activism is strictly banned in the campus. Students are forbidden to organise or attend meetings other than the official ones. Students resorting to strikes are strictly prohibited from entering the verandah of the building or the classrooms. Upholding the validity of the above clause in a college disciplinary manual, the Kerala High Court has held that it is a reasonable restriction permissible under Art. 19 (1) (a) or (c) of the Indian Constitution. In other words, politics is banned in colleges.

Read more at:

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