What prompts the attorney general to defend WB in High Court?

by Ismet Zerin Khan | Published: 21:50, Feb 18,2017

 
 

THE recent Canadian Court verdict has finally cleared Bangladesh from a tarnished image caused by the World Bank’s false allegation of corruption against some high-level Bangladeshi officials over the Padma Bridge project. In the past few years, the agony and humiliation faced by these officials and the irreparable harm and damage to the reputation of Bangladesh on the issue has been a matter of huge concern to all Bangladeshis.
Today, the nation rejoices with the clean-slate verdict of the Canadian court and has raised voice against the World Bank demanding an answer and an apology, with a remedy and redress and due compensation for the harm and damage. Print and electronic media are celebrating through stories, reports and talk shows on the issue where participants are challenging the World Bank’s unbecoming role. Deliberations in the parliament also focused on retribution and claim of damages against the World Bank. Many politicians, members of civil society and parliamentarians, including the law minister, suggested exploring options by the aggrieved people for the filing of law suits against the World Bank.
It is important to clear some misconceptions and confusion about the scope of immunity which the World Bank enjoys, or does not enjoy, in Bangladesh. The status, immunity and privileges of the World Bank in Bangladesh are solely guided by the Presidential Order 86 of 1972 promulgated by former president Justice Abu Sayeed Chowdhury on July 31, 1972 under the International Financial Organisations Order 1972. The government has not extended any entitlement, privileges or immunity to the World Bank by any executive order or otherwise, other than what is expressly provided under the president’s order 86 of 1972. There is absolutely no scope for the World Bank to go for any subjective interpretation(s) of convenience outside the framework of what is expressly provided for in the president’s order.
The International Financial Organisations Order 1972 (PO 86 of 1972) clearly mentions in Schedule II, Article VII, Section 3: ‘Actions may be brought against the bank only in a court of competent jurisdiction in the territories of a member where the bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.’ The three conditions are disjunctive and if any condition is fulfilled, legal action may be brought against the institution. Since the institution has an office in Bangladesh, the condition is fulfilled. Thus the clause establishes that the World Bank is not above the national laws and that legal action may be brought against the World Bank which does not enjoy unfettered immunity from legal process. The unambiguous provisions, clarifying the position of the World Bank with regard to judicial process is essential to uphold the accountability of the institution in a court of law of a member country.
It is unambiguously established by the presidential promulgation that the government was quite judicious and circumspect in its policy of not allowing blanket immunity to the World Bank. It is quite evident from the prudent exclusion of unfettered immunity in the president’s order No 86 of 1972 that the government of Bangladesh never had the intent to provide absolute and blanket immunity for the World Bank. Otherwise, it would encourage and allow the institution to indulge in illegal and unlawful activities without restraint.
There is already a legal suit (case no 3352 of 2011) against the World Bank pending with the High Court of Bangladesh. It is appalling that the incumbent attorney general of Bangladesh is defending the World Bank in this case and wrongly supporting the contention of the World Bank that it is immune from legal process. Thereby, he is essentially taking, and pleading for, an unlawful position. For the attorney general, as the chief law officer of the state, to take a position and argue in favour of the World Bank claiming that the World Bank enjoys immunity in Bangladesh is not only irresponsible and unacceptable, but it is also inconsistent and in conflict and contradiction with the president’s order 86 of 1972 and relevant court verdicts on the matter.
It is not clear how the attorney general, holding a constitutional position and having taken an oath of office, chooses to take a position which is inconsistent and in contradiction with, and against the aforementioned law of the land. Furthermore, as the attorney general, it is his constitutional obligation and responsibility to protect and promote the rights of a citizen as enshrined in the constitution — not to violate or undermine those rights by seeking to serve the selfish interest of a multilateral international financial institution such as the World Bank against the rights and legitimate claims of a citizen of the country. It has set a bad precedent in the annals of jurisprudence in the country. It is certainly unbecoming of his status and the distinguished responsible position which he is holding, even if he claims to be representing the World Bank in a private capacity.
It is also pertinent to question as to why the attorney general chose to represent the World Bank in a private litigation in the High Court while the Padma Bridge fiasco was going on in full swing? What could have inspired or motivated the attorney general to represent an international financial institution in a civil case of a private individual where the government is not a party to the case? It is mind-boggling to find the state’s chief attorney standing up in defence of the World Bank in court in direct conflict with provisions of the law, thereby breaking all norms and disregarding all previous legal opinions on this case. One can only be concerned about the eroding values of ethics, morality and above all, the legality of such an act, more so, when the World Bank started brewing the hearsay, innuendos, rumours and gossip about the alleged Padma Bridge corruption.
In a New Age article published in March 2012, the question that has been asked was whether the World Bank intends, or attempts, to unduly influence the appeal process by appointing the government’s chief lawyer to defend them in court. On the other hand, could it be that the attorney general, solely motivated and inspired by his self-interest, decided to take up the case for the World Bank on his own? Or was it perhaps a mutually convenient and profitable arrangement for both? Whatever maybe the reason(s), it sends out an alarming signal striking at the root of an individual’s rights and fight for justice and on responsibilities of officers of the state to protect the rights of the citizens.
Although the government may not be able to sue the World Bank because of a provision in articles of the agreement between Bangladesh and the World Bank that ‘no actions shall, however, be brought by members (of the World Bank, eg Bangladesh) or persons acting for or deriving claims from members’, there is, nevertheless, absolutely no legal bar for individuals, including government officials in their ‘private and individual’ capacity, to seek remedy in a court of law in Bangladesh for injustice, harm and damage caused to them by ill-motivated accusations and unlawful actions perpetrated by the World Bank with impunity.
As recently suggested and encouraged by the law minister in the parliament, all the victims of the World Bank’s false accusations of corruption in the Padma Bridge case, including both former and present high-level officials of the government, in their private and individual capacity, would be well advised to seek legal counsel to take the World Bank to court for dispensation of justice to remedy and redress their legitimate grievances through legal and judicial recourse. They may well have the legal rights to claim and get due financial and non-financial compensation from the World Bank for unlawful incarceration and harassment, or for other irreparable harm and damage to their reputation, credibility, prestige, honour and dignity, and for causing social humiliation, mental torture, financial loss, etc, through defamatory and other relevant provisions of the law. There may also be opportunities for a collective civil action (public litigation) law suit against the World Bank to claim damages for loss due to delay in construction of the Padma Bridge, such as the lost GDP growth, increased cost of the bridge, etc.

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