In terms of Liquor Bar License and Alcohol law in Bangladesh, recently the government took steps to legalise alcohol. A drinking permit may be requested by anyone over the age of 21. The government has issued new regulations to regulate the sale and consumption of alcohol throughout the nation.
Hotels, restaurants, and other establishments that serve food and also display and sell alcohol will be permitted to apply for liquor sale licenses under the new regulations. The licenses are also available to clubs and organizations that have a certain number of members with drinking permits.
The drinking permit application process is open to anyone over the age of 21. Muslims over the age of 21 must obtain a prescription from at least an associate professor-level physician. To purchase alcohol, members of ethnic groups, such as those in the Chittagong Hill Tracts and other areas, will also require drinking permits.
Drug Control Act and Alcohol law in Bangladesh:
Under the 'Drug Control Act, 2018', the Security Services Department of the Ministry of Home Affairs issued the Alcohol Control Rules, 2023 .
Clubs and organisations with at least 100 members who have a drink permit are also eligible to apply for liquor licenses. Those with more than 200 members who have a drinking permit may apply for a license to open a bar.
EPZs, theme parks, and government development projects where foreign nationals work can also have bars.
Depending on the establishment, the number of bars that can be set up in a specific area will be limited. Two-star hotels, for example, can obtain a license for one bar, three-star hotels for two, four-star hotels for three, and five-star hotels for more than seven.
Conditions have been established for the establishment of bars in hotels, restaurants, and clubs with at least 200 permit holders, as well as in export processing zones, theme parks, and government development projects inhabited by foreign nationals.
On shop Alcohol:
On shop means imported or foreign or non-alcoholic Such premises for sale of liquor, from which any foreign national or Permit holders are nationals, foreign nationals, foreign nationals or alcoholics can do;
Off shop Alcohol:
Off Shop means a place from which a foreigner Citizens or nationals holding permits, as the case may be, the amount specified in the permit, Can be purchased in bottles or cans. Liquor licenses, permits, passes, etc. (1) Licensing in prescribed cases shall, namely:__
(a) import and export of alcohol; (b) manufacture and processing of alcohol; (c) supply, marketing and sale of alcohol; And (d) Storage, warehousing or holding of alcohol
(2) Permits shall be obtained in the following cases, namely:
(a) drink alcoholic beverages; And (b) Use and application of alcohol.
(3) Passes shall be accepted in the following cases, namely:
(a) carrying alcohol; And (b) Transportation of alcohol.
Application for license or permit:
Purpose of Section 10 of the Act : Schedule-II for license or permit relating to use and application of alcohol for fulfillment purposes in the respective form
(a) the Director General in the case of bar on shop or off shop; And (b) In other cases the concerned Deputy Director___ Always apply.
(2) On receipt of an application under sub-rule (1)__
(a) in respect of clause (a) the Director-General shall appoint an Inquiry Officer; And (b) In case of clause k), the Deputy Director shall conduct the inquiry himself or an investigator Officers will be appointed.
(3) The information and related documents mentioned in the inquiry officer application mentioned in sub-rule (2). Within 30 (thirty) working days of the examination, the report in this regard to the Deputy Director is departmental Departmental to the Officer and in the case of any other Investigating Officer through the Deputy Director Submit to the officer.
Reports submitted by the Divisional Officer, Investigating Officer and related Within 15 (fifteen) days of receiving the report with specific opinion after examining the documents Send to the Director General. The Director General is responsible considering the opinion of the departmental officer and the overall matter. If the application is deemed approved by the concerned Deputy Director for grant of license or permit Provide instructions:
Provided that, in the case of licenses of bars or off shops, the Director General, if necessary, of the Govt , you can accept no objection.
Notwithstanding anything contained in other sub-rules of this rule, in respect of denatured spirits Examination of the report and related documents submitted by the Deputy Director concerned investigating officer. If deemed reasonable, approve the application and the relevant license or permit Inform the applicant to deposit the fee and within 7 days of the deposit of the said fee and issue the license or permit in the relevant form of schedule-3 within the day.
The grant of license or permit :
If the fee is not paid or the license is accepted within 15 (fifteen) days of notification. The Director General may take necessary decision after considering the reasons thereof.
Application for liquor permit:
Application for permit should be made to the Deputy Director in the relevant form in Schedule-II:
Provided, however, that in the case of tea workers, proof of working in the respective plantations of the application should be attached.
On receipt of an application under sub-rule (1), the Deputy Director shall be concerned with the particulars of the application and shall make an entry in the register and appoint such person as the Investigating Officer. The information and related documents mentioned in the inquiry officer application mentioned in sub-rule (2). And then we have to submit the relevant report to the Deputy Director within 7 (seven) working days of the examination.
Examination of the report and related documents submitted by the Deputy Director Investigating Officer:
If deemed reasonable, the application shall be approved and permitted to the investigating officer concerned. The investigating officer on receipt of directions under sub-rule (8) concerned permit fee The applicant shall be notified of the deposit and 7 (seven) days of the deposit of said fee In the corresponding form of schedule-3 will issue the permit and one copy of the applicant.
Carrying or conveying alcohol by a licensee or permit holder to any other person to be duly authorized to carry or transport alcohol with a certificate of good standing will be On receipt of an application under this rule, the Deputy Director in Form-15 of Schedule-4.
After receiving the supply of alcohol from a licensed warehouse or a wholesale shop, if he cannot carry it himself, he can carry it or transport it through a person appointed by him.
Alcohol may be carried or transported by any one or more routes of rail, road, sea and air, but the route of carriage or transport must be recorded on the pass and alcohol shall not be carried or transported by any other route than the one mentioned in the pass.
In case any alcohol is to be transported through post office or any transport agency, a certified photocopy of the pass shall be affixed securely to the container, container, box, parcel or wrapper of the said alcohol, so that it is not detached in any way and is easily visible.
Alcohol produced in tea plantation areas or hill tribal areas shall not under any circumstances be sold, consumed or carried or transported for any other purpose in any other part of the country.
Provisions to follow in respect of licences. Every licensee shall follow the law, these rules and the notifications, orders issued by the Government or the directions given by the Department from time to time.
Before issuing a license for any commercial activity of alcohol under these rules, the licensing authority shall determine the local demand of the concerned alcohol and may consult with the relevant expert if necessary.
The Director General may, from time to time, collect and test any alcohol produced or processed under the license from the licensee and may cancel the license of the producer or processor if it does not meet the standards specified in the license.
If another 100 are permit holders in any area Alcohol sales license will be issued! Any brand of alcohol approved by the Director General under licenses other than clubs or bars shall be sold sealed and intact.
On every bottle, wrapper or container of alcohol, the words “Drinking is injurious to health” and “Drinking without the provisions of law is a punishable offence” has to be clearly printed in red ink on the packaging.
Restaurants, hotels, clubs, and bars will be able to purchase 40% of their required alcohol from Bangladesh Parjatan Corporation by paying regular duty-taxes or importing it. Hence Clubs with more than 200 permit holders are permitted to import a maximum of 40 percent of foreign liquor, while the remaining 60 percent must be sourced locally.
Regulations regarding the consumption of Alcohol:
Accounts of all alcohol activities covered by the license must be kept. And the said account has to be submitted to the Licensing Authority every month. The Director General may, for reasonable cause, by general order, grant any licence can give instructions to stop the operation of the license. Recreational cultural activities shall not be conducted in shops, bars or places authorized for the consumption of alcohol without the permission of the licensing authority.
In any government body, autonomous body, corporation or economic zone:
After receiving the license to sell alcohol, if any activity under the license is to be conducted by any other person, the prior permission of the Directorate should be taken and then the no-objection of the Directorate should be taken before executing the agreement to assign the responsibility to the concerned person.
General terms and conditions of license of bar, off shop, etc. (1) mentioned in Schedule-5 Bar at times, retail or wholesale off-shops of Belatims, on-shops of Belatims and Desims Shops will be kept open. Friday, Muharram, Shab-e-Barat, Eid-e-Miladunnabi, Shab-e-Qadr, Eid-ul-Fitr and Eid-ul-Azha and from time to time, on designated days bar, off-shop, on-shop and Desims will have to close their shops cannot adulterate with licensed alcohol or alter its strength.
Unusable alcohol shall not be stored in bars, off-shops, on-shops and deshim shops. Bar, Off Shop, On Shop and Deshim's Licensee shall store and operate the premises under his license and all equipment, equipment, materials, utensils, receptacles, etc. in a proper, clean, standard and hygienic manner with appropriate security.
As per Form-1 of Schedule-4 the Licensee has to provide Ajikarnama. The licensee shall be present at the place or shop concerned during the operation of bar, on-shop, off-shop and deshim shops: Provided that if he is unable to be physically present for any reasonable reason, with the approval of the Deputy Director for absence not exceeding 30 (thirty) days and 30 ( For absence for more than thirty days, with the approval of the Director General, he may appoint a representative to manage the concerned Bar, On Shop, Off Shop or Desim's Shop!
Permittees and licensees will be prohibited from displaying alcohol products for commercial or other purposes to attract customers. In Drug Control Act, the regulations also dictate the opening and closing hours of bars and liquor stores. Import, use, and consumption of alcohol or these products are governed by distinct regulations for importers of homeopathic medicines, tea garden workers, and indigenous people in the Hill Tracts region. For the sale of imported liquor, brand registration is required. To supply liquor, alcohol can be imported from any country with trade relations with Bangladesh.
Those with permits can transport alcohol by rail, road, sea, and air, but they must also have a carrying pass.
Beer cannot be produced unless the government's procedure is followed. Alcohol used in industrial, laboratory, and allopathic medicine production, as well as ethyl alcohol, absolute alcohol, rectified spirits, strong alcohol, and industrial methylated spirits, which are not produced in Bangladesh, can be imported. However, no alcohol can be imported without the permission of the Bangladesh Tourism Corporation or the government.
Narcotics Control (License and Permit Fees) Rules:
Previously, alcohol-related issues were governed by the Drug Control Act of 2018, the Narcotics Control (License and Permit Fees) Rules of 2014, the Muslim Prohibition Rule of 1950, the Excise Manual (Volume-II), and various executive orders. There was frequently ambiguity. Additionally, different complications were created at various times.
According to the policy, licenses, permits, and passes are required for the sale, purchase, and transport of alcoholic beverages. With at least 100 local or foreign liquor permit holders, the authorities would be able to issue a license to sell alcohol in a given area.
On Fridays, Muharram, Shab-e-Baraat, Eid-e-Miladunnabi, Shab-e-Kadar, Eid-ul-Fitr, Eid-ul-Adha, and other government-declared holidays, bars and local liquor stores must remain closed. The rule prohibits the consumption of alcoholic beverages by those under 21 years old.
The brewing of alcohol at home is prohibited under the new regulations. Alcohol adulteration is also prohibited. Under the 2018 Narcotics Control Act, the Security Services Division of the Ministry of Home Affairs issued the Alcohol Control Rules 2023 .
Narcotics Control (Liquor License and Permit Fees) Rules:
The revised Narcotics Control Act of 2018 allows hotels, restaurants, and other food establishments to legally sell alcoholic beverages with the proper permits. Clubs with 100 or more permit holders can apply for liquor licenses, and clubs with 200 or more permit holders can apply to become open bars.
The sale of alcoholic beverages is prohibited on Fridays, Islamic holidays, and other official holidays. On normal days, these stores are required to close at 10:30 p.m. unless they have a special license allowing them to remain open until 1:30 a.m.
With the approval of the Director General, licensed vendors may sell any brand of alcohol, not just in bars and clubs. However, the bottles must bear health warnings.
Those under the legal drinking age of 21 may apply for permits to drink by following the appropriate application procedures.
The Narcotics Control Act of 1990 has been repealed and replaced by the Narcotics Control Act of 2018. The new law imposes the death penalty and long-term life imprisonment as punishments for any offender, depending on the nature of the offense. Given the fact that a large number of people, particularly young people, have been using drugs, this initiative by the government was absolutely necessary.
Aside from alcohol or Liquor License, Section 9 of the Act prohibits the cultivation, production, manufacturing, carrying, transporting, exporting, importing, delivering, purchasing, selling, bearing, preserving, displaying, and storage of all other drugs and plants, as well as the ingredients for their production. However, if such a prohibited drug is required for the production of a medicine or scientific research, the government may issue a license for the production, import, export, preservation, sale, and purchase of such drugs.
Establish a distillery in Bangladesh:
According to the law, alcohol refers to any spirit, wine, beer, or liquid containing more than 0.5% alcohol. In addition, Section10 of the Act states that no one may establish a distillery, produce, distribute, sell, consume, import, export, or preserve alcohol without a license or permit from the government. Even for the production of medications that require alcohol, a license is required from the government.
Therefore, any Bangladeshi who wishes to consume alcohol must obtain a permit from the government; in the case of Muslims, such a permit may only be issued for medical reasons. For such a medical treatment permit, one must provide a prescription written by a civil surgeon or associate professor of a medical college. The prescription must include the disease's name and an explanation of why alcohol is necessary for the treatment.
In addition, for distillery in Bangladesh, such alcohol consumption restrictions do not apply to foreigners who are permitted to drink in licensed bars. Diplomatic passport holders have a variety of options for purchasing, transporting, and selling alcohol. In addition, the Act specifies that natives of Rangamati, Bandarban, and Khagrachari are permitted to consume any alcohol traditionally produced in these districts. In addition, those working as a dome, cobbler, sweeper, or tea-garden laborer are permitted to consume "Taree" and "Pochui," which are primarily fermented liquor and spirit.
Punishment and license Revoking for Alcohol and Liquor License:
In accordance with Section 13 of the Act, in order to obtain a license, one must fill out a form, accept the conditions for obtaining the license, and pay a certain fee. The license can then be obtained from the Director General of the Department of Narcotics Control of Bangladesh, pending their approval. This permit must be renewed every three years.
And if someone has a case filed against them for an offense they committed due to moral degeneration and they were sentenced to more than three months in jail or a fine of more than 500 baht, they will be unable to obtain such a license. Furthermore, if a license condition is violated twice, the license will be revoked.
In accordance with Section 36 of the Act, anyone who establishes a distillery and produces alcohol without a license is subject to up to ten years in prison and a fine. Further, for selling, buying, importing, preserving, manufacturing, and distributing alcohol without a license, a person will be imprisoned for six months to three years, if the amount of alcohol is up to ten liters, and for three to five years, if the amount of alcohol exceeds one hundred liters, and for five to ten years, if the amount of alcohol exceeds one hundred liters.
Previous Ban on Liquor License in Bangladesh and dependancy on drugs:
When the news about the legalization of alcohol was posted on news websites with clickbait headlines on social media, as usual, followers divided into two camps and flooded the comment sections with strong opinions. Phensedyl and other cough syrups are illegally brought into the Bangladesh with forged documents hiding those under other commodities like in trucks and buses. Once inside, they find their way to Bangladesh, with which Tripura shares two thirds of its border. The drug is generally sent in its original packaging.
Since liquor or alcohol had been banned in Bangladesh, the drug became a popular alternative for alcohol. Phensedyl used to contain codeine phosphate along with hydrochloride ephedrine and Promethizine, a unique combination for addiction. This is what made it a popular drug of abuse and unfortunately the trend still continues even after the chemical formulation was changed.
History of Bar License in bangladesh:
In 1887, the Englishman Robert Russell Carew established the first distillery in what is now Bangladesh. The Bangladeshi government nationalized the Carew & Co (Bangladesh) Ltd company in 1973. The distillery is part of the Darsana Sugar Mill, which is owned by Bangladesh Sugar and Food Industries Corporation, a state-owned enterprise. Due to the distillery, it is the only sugar out of 15 state-owned mills to generate a profit. The distillery produces whisky, rum, brandy, and gin.
In areas where this section is in effect, the government may regulate the production and disposal of power alcohol by distilleries.
No person may produce power alcohol from any substance other than molasses or any other substance designated by the government by notification in the official Gazette.
Any beverage containing more than 0.5% alcohol is considered an alcoholic beverage under Bangladeshi law. A government license is required for the sale, storage, and transportation of alcoholic beverages. Alcohol consumption in Bangladesh requires a legal permit, which is almost always granted to non-Muslims. A medical prescription is required for Muslims to obtain an alcohol permit. The prescription must be written by a medical college associate professor or a civil surgeon. Foreigners do not require a permit to drink in licensed establishments.
Granting a license and the finality of it:
If a dispute arises as to whether a substance is or is not molasses or another substance specified in subsection (1), the decision of an officer authorized by the government in this regard is final and cannot be challenged in court.
In 2003, the Bangladeshi government authorized Jamuna Distillery Limited of Jamuna Group to produce alcoholic beverages. Jamuna Distillery Limited was the first private company to be granted a license to produce alcohol, breaking the monopoly of Carew & Co (Bangladesh) Ltd. Alcohol is sold in five-star hotels and bars licensed by the government. In 2009, Jamuna introduced Hunter beer to Bangladesh.
In terms of recent rules on the Act, many people viewed the new rules as a religious disgrace, while others celebrated the decision and wished that other drugs would also be legalized. As a result of the comment wars, some individuals opined that, now that alcohol consumption has been "legalized," there will be an increase in drunk-driving accidents in the country. The proponents of the new regulation argue that those who want to consume alcohol will consume it regardless of the law, and that driving under the influence is nothing new in the United States.
Apparently, the new law that has caused chaos in the country is in no way comparable to alcohol laws in Western nations. The new provisions impose minimal restrictions on the ability of wholesalers and retailers to sell alcohol to the general public.
Recent updates regards to Minimum age:
Among other modifications, the legal minimum age for obtaining an alcohol permit has been raised to 21. Additionally, fees for obtaining and renewing alcohol licenses and permits have been increased. Purchase, storage, production, processing, marketing, transportation, and import-export of alcoholic beverages also require licenses and permits.
Even before the recent additions, the Narcotics Control Act of 2018 mandated that Muslims in Bangladesh, whose religion prohibits drinking, could only obtain alcohol permits for medical purposes. The individual must submit a prescription from a civil surgeon or a doctor with a minimum acceptable rank of Associate Professor in order to apply for the permit. The prescription must describe the patient's condition and justify the need for alcohol treatment.
Also, under the previous version of the Act, foreigners and holders of diplomatic and foreign passports were permitted to collect and consume alcohol in Bangladesh without a permit. Rangamati, Bandarban, and Khagrachhari locals were also permitted to consume alcoholic beverages indigenous to their regions without a permit. Small tribal groups and daily laborers, such as cobblers, sweepers, and tea-garden workers, were also prohibited from consuming Taree and Pochui - beverages made from fermented liquor and spirit - without a permit.
Providing alcohol at tourist destinations was essentially an effort to increase tourism sector revenue. Many would agree that a consequence of the illegality of alcohol is that people who want to drink must resort to black markets. These unregulated markets frequently sell tainted or substandard alcohol, which can cause alcohol poisoning and death. A legal and regulated market, on the other hand, is expected to reduce the likelihood of such fatalities.
DGDA in Bangladesh:
The Drug Regulatory Authority of Bangladesh is the Directorate General of Drug Administration (DGDA) under the Ministry of Health & Family Welfare of the People's Republic of Bangladesh.
This DGDA regulates the import, procurement of raw and packaging materials, production and import of finished drugs, export, sales, pricing, etc. of all types of drugs and medicines, including those from the Ayurvedic, Unani, Herbal, and Homoeopathic systems. Currently, the DGDA oversees 47 district offices across the nation. In accordance with the Drug Laws, all officers of the DGDA serve as "Drug Inspectors" and aid the Licensing Authority in carrying out his responsibilities effectively.
In addition for Liquor License in Bangladesh, a number of Committees, including the Drug Control Committee (DCC), the Standing Committee for imports of raw materials and finished drugs, the Pricing Committee, and a number of other relevant Committees comprised of experts from various fields, exist to advise and recommend the Licensing Authority on matters pertaining to drugs and medicines.
প্রয়োজনীয় কাগজ পত্র লাইসেন্স পাওয়ার জন্য:
১. ট্রেড লাইসেন্স এর ফটোকপি (ট্রেড লাইসেন্সে ফার্মেসির নাম উল্লেখ থাকতে হবে)।
২. ভোটার আইডি কার্ড এর ফটোকপি (মালিক ও ফার্মাসিস্ট উভয়ের)৩. দোকান ভাড়া নেওয়ার চুক্তিনামা (On 300 taka stamp)
৪. এ গ্র্রেড/ বি গ্রেড/ সি-গ্রেড ফার্মাসিস্ট এর রেজিস্ট্রেশন (original certificate)
৫. ২ কপি ছবি (মালিক ও ফার্মাসিস্ট উভয়ের)
৬. দোকান এর সাইজ কমপক্ষে ১২০ স্কয়ার ফিট (মেডিসিন শপ) অথবা ৩০০ স্কয়ার ফিট (মডেল ফার্মাসি)
৭. ব্যাঙ্ক সলভেন্সি সার্টিফিকেট (মালিকের)
As part of its comprehensive support for the liquor industry and DGDA, the Tahmidur Rahman Remura Wahid TRW provides, among other legal services:
Comprehensive audit of the company to identify existing and potential legal risks (legal due diligence), development of risk-mitigation recommendations based on audit results. The legal team of Tahmidur Rahman, The Law Firm in Bangladesh: TRW, The Law Firm in Bangladesh are highly experienced in providing all kinds of services related to
Development and preparation of the necessary set of contracts for a development and promotion of the necessary set of internal policies and standard procedures, including anti-corruption and compliance procedures to identify and prevent corruption risks, as well as compliance with regulation and conflict of interest when conducting Liquor Bar License and Alcohol law in Bangladesh.
Comprehensive support of issues relating to the Liquor Bar License and Alcohol law industry's use of intellectual property and protection of intellectual property rights; comprehensive support of issues relating to antitrust regulation, including representing the interests of pharmaceutical companies in conducting investigations and reviewing cases of antitrust law violations
Recent developments have fueled speculation that some artificial intelligence (AI) systems have attained'sentience.' Sentient AI systems, to paraphrase philosopher Nick Bostrom, are those that can experience 'qualia,' which includes feelings, sensations, and thoughts. This claim is being challenged, but the news has left a trail of excitement in its wake.
Artificial intelligence (AI) generated content has posed significant challenges to the current Intellectual Property (IP) regime. It is still unclear how far the current IP system, which is predominately based on consequentialist and/or utilitarian approaches, is prepared to accommodate AI generated contents. Furthermore, when it comes to developing countries like Bangladesh with its still premature Judicial system and Artificial Intelligence law, there are numerous ethical and legal issues concerning AI, such as the lack of a regulatory regime, data misuse, bias, and discrimination.
Contents patentable, copyrightable, or designable:
Perhaps the most striking issue at hand is that, because AI creates or invents content based on provided data, IP protection would transform the proprietary right on data, potentially violating data protection laws. Again, one cannot deny the implications of AIs in their current state. As a result, there have been heated legal and policy debates on a number of unresolved issues: To what extent and magnitude might AI-generated contents be patentable, copyrightable, or designable, and if so, who would be the inventor, author, or designer, respectively?
What are the implications of AI-generated content if AI is granted legal personality, with rights and duties?
What are the available legal and policy options for dealing with this new technology?
According to the Hegelian approach to philosophy, the inventor or creator has a legitimate justification to enjoy the results and benefits of such property due to the connection between the work and the person.
The AI or so called sentient computers, on the other hand, cannot be considered the beneficiaries of their labor. Similarly, the ex-ante justification of inventiveness is inapplicable to AI generated content. The romanticism semantic of a "lone genius inventor or creator who invents or creates only if strongly incentivized" does not appear to be well suited to justifying the protection of AI generated contents.
Computers do not create or invent content on their own initiative; rather, they are directed to do so. Furthermore, because computers are value-neutral, AI may produce socially or culturally unacceptable or immoral content, which may contradict the proposition of'social planning theory.' There may be concerns based on the 'free-riding' doctrine, which states that if AI generated contents are not protected, they will be open to copying and undue benefits may be taken by others, which will contradict the deontological justification of the IP regime, just like any other branch of law.
Much has been written about the desirability of such sentience, with debate centered on topics like how sentient AI adds value to society and its role in shaping our understanding of consciousness. Commentators have also attempted to theorize the tenets of responsible sentience by articulating the dangers of such systems.
Legal Risks associated with Sentient systems and Artificial Intelligence law:
Individual privacy is one such risk. Sentient systems, in theory, could act as a patient listener capable of roving conversations with customers. This characterization of such systems animates their interaction with privacy law and necessitates reflection.
While such systems have a wide range of applications, one that has recently received attention is AI-enabled chatbots. This use-case hints at how sentience might be used in the future to make human-machine interactions more personable and meaningful.
These interactions, of course, include personal information. As a result, they are subject to the application of privacy law. However, in the future, coding such systems with sentience makes the operation of such law circumspect and susceptible to disruption. Sentient systems, as opposed to the average bot, can engage deeply with their interlocutors without the need for human intervention.
Prompts to share deeply held beliefs, health information, or financial data are examples of such engagement. Prompts may also encourage people to talk about related people, such as friends or family. This likely aftereffect of sentience may thwart the strict application of privacy law.
Consent dilemma with AI law in Bangladesh:
The dilemma of consent is at the heart of such frustration. Sentient AI systems are likely to alter conversational patterns, undermining privacy law's notice-and-consent provisions. In India, for example, the Information Technology Act of 2000 requires entities collecting sensitive personal information — such as financial information, medical history, and sexual orientation — to obtain prior consent before collecting such information.
Entities must also explain to customers why such information is being collected. This purpose effectively limits an entity's data processing activity. The above-mentioned rules require that data collection be limited to the stated purpose or other lawful purposes related to the entity's functions.
However, communicating a strong, well-defined purpose to users will be difficult for entities deploying sentient AI. The AI's novel or meandering conversation patterns may introduce new themes for conversations, rendering consent moot. As a result, convoluted consent tokens and ambiguous purpose statements may dominate the machine-human relationship, causing anxiety in both customers and businesses.
Sentient AI, which is infinitely curious, can create situations in which businesses and regulators must respond with unwavering vigilance. As a result, their consent-and-purpose-bending experiment with privacy law necessitates well-thought-out solutions.
The fundamental right to privacy is not expressly granted in the Constitution. The courts, on the other hand, have incorporated the right to privacy into the following existing fundamental rights:
Article 39 guarantees freedom of thought and conscience; Article 32 guarantees life and personal liberty. These fundamental rights under the Constitution, however, are subject to reasonable restrictions imposed by the State under Article 39(2) of the Constitution.
According to Article 43 of the Constitution, every citizen has the right to the privacy of their correspondence and other means of communication, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality, or public health.
Furthermore, the Constitution states that no one shall be deprived of life or personal liberty except in accordance with legal procedures. As a result, judicial intervention is very much possible in Bangladesh's legal system, and such privacy is subject to the application of lawful interception.
The Technology Act and the Digital Security Act address issues such as wrongful disclosure, personal data misuse, and breach of contractual terms relating to personal data.
The Act on Technology
The Technology Act provides legal recognition for electronic certificates and transactions conducted through electronic data interchange, as well as other forms of electronic communication that involve the use of alternative or paper-based methods of communication and information storage to facilitate electronic filing of documents with government agencies.
The Technology Act imposes liability on any person or entity that possesses, deals with, or handles any sensitive personal data or information. Furthermore, the Technology Act requires the implementation and maintenance of reasonable security practices to avoid wrongful loss or gain by the owner of such data, as detailed below.
The Government of Bangladesh ('the Government') has the authority to intercept data under certain conditions under the Technology Act. Section 46 of the Technology Act, in particular, which is an exception to the general rule for maintaining information privacy and secrecy, provides that the government may intercept data if it is satisfied that such interception is necessary in the interest of:
the state's sovereignty, integrity, or security;
friendly relations with foreign states;
public order; preventing incitement to commit any cognizable offence relating to the above; or investigating any offence.
The Government may, by order, direct any agency of the appropriate government authority to intercept, monitor, or decrypt, or cause any information generated, transmitted, received, or stored in any computer resource to be intercepted, monitored, or decrypted.
Section 46 of the Technology Act gives the government the authority to intercept, monitor, or decrypt any information, including personal information, in any computer resource. The government may require disclosure of information if it is of such a nature that it should be disclosed in the public interest. This category may include information about anti-national activities that violate national security, violations of the law or statutory duty, or fraud.
Under the aforementioned conditions, the government-appointed controller can direct a subscriber to extend facilities to decrypt, intercept, and monitor information. Section 69 of the Technology Act covers interception, monitoring, and decryption for the purpose of investigating cybercrime. The controller may declare any computer, computer system, or computer network to be a protected system and authorize applicable persons to secure access to protected systems by publishing a notice in the Bangladesh Government Press or in the electronic gazette.
The Digital Security Act and Artificial Intelligence law
The Digital Security Act was passed to ensure national data security and to create laws governing data crime detection, prevention, suppression, prosecution, and other related issues. The relevant provisions of the Digital Security Act are listed below.
According to the Digital Security Act, if any data or information published or propagated in digital media about a subject under the Director General's purview threatens data security, the Director General may request that the relevant regulatory authority remove or block said data or information as appropriate.
The Telecommunications Act of 2001
The Telecommunications Act of 2001 ('the Telecom Act') is the only law that governs two-party electronic communication. According to Section 67(b) of the Telecom Act, no one shall intercept any radio communication or telecommunication, nor shall any intercepted communication be used or divulged, unless the originator of the communication or the person to whom the originator intends to send it has consented to or approved the interception or divulgence. Such an act is punishable by imprisonment for a maximum of three years or a fine of BDT 300,000 (approx. €3,153), or both.
Under Section 97(Ka) of the Telecom Act, the Government may empower certain authorities (e.g., intelligence agencies, national security agencies, investigation agencies, or any officer of any law enforcement agency) to suspend or prohibit the transmission of any data or voice call, as well as record or collect user information relating to any subscriber to a telecommunications service, on the grounds of national security and public order.
This broadly drafted provision includes intercept capabilities. The relevant telecoms operator must fully support the empowered authority in exercising such powers. The Telecom Act makes no mention of time limits on these powers. As a result, an interception may last as long as the agency carrying out the interception desires.
The Government may require a telecommunications operator to keep records relating to a specific user's communications under the broad powers granted in Section 97(Ka) of the Telecom Act on the grounds of national security and public order. However, when deciding whether to grant a retention request, the relevant government agency must consider the operator's technical resources and ability to retain information.
Under Section 96 of the Telecom Act, the government may seize any telecommunication system and all arrangements necessary to operate it in the public interest. It may retain such possession for any period of time and keep the operator and their employees employed full-time or for a specific period of time for the purpose of operating such apparatus or system. However, the government is required to compensate the owner or person in control of the radio apparatus or telecommunications system that it takes over.
Except for authorised persons as defined in Section 97(Ka) of the Telecom Act (security agencies), anyone who taps or intercepts telecommunication between two persons without their permission commits an offense.
According to Section 68 of the Telecom Act, the following acts are considered offenses if committed by an official of a licensee while performing their duties: use any telecommunication or radio apparatus with the intent of obtaining any information relating to the sender or addressee, or the content of a message sent by telecommunication or radio communication, unless the Bangladesh Telecommunication Regulatory Commission ('BTRC') has authorized that employee or operator to receive the message; except as required by the BTRC or a court, disclose any information
The 1872 Contract Act
The Contract Act of 1872 can be used to address the issue of data protection, which has traditionally been governed by the contractual relationship between parties. Parties are free to enter into contracts to define their relationship in terms of personal data, personal sensitive data, data that may not be transferred out of or into Bangladesh, and the manner in which the same is handled.
The 2009 Consumer Rights Protection Act
According to Section 52 of the Consumers' Rights Protection Act, 2009, anyone who violates any prohibition under any law currently in force by doing any act that is detrimental to the life or security of a service receiver is punishable by imprisonment for a period not exceeding three years and/or a fine not exceeding BDT 200,000 (approx. €2,070). According to Section 53, any service provider who, through negligence, irresponsibility, or carelessness, harms or kills the service receiver's finances or health, or causes death, is subject to imprisonment for a period not exceeding three years and/or a fine not exceeding BDT 200,000 (approx. €1,980). Furthermore, the consumer may be entitled to compensation.
These provisions implicitly impose responsibility on the person or entity that possesses, deals with, or handles any sensitive personal data or information for the consumer to implement and maintain reasonable security practices in order to avoid wrongful loss or gain to the owner of such data.
The Criminal Code
The Penal Code of 1860 ('the Penal Code') can be used to effectively prevent data theft. The Penal Code punishes misappropriation of property, theft, and criminal breach of trust with imprisonment and a fine. Although the Penal Code only applies to movable property, it has been defined to include corporeal property of "every description," except land and things permanently attached to the earth. As a result of their movability, computer databases can be protected under the Penal Code.
The 2000 Copyright Act
The Copyright Act of 2000 (the "Copyright Act") safeguards intellectual property rights in literary, dramatic, musical, artistic, and cinematographic works. The term "literary work" also includes computer databases. As a result, copying a computer database or copying and distributing a database constitutes copyright infringement, for which civil and criminal remedies are available. However, the Copyright Act makes it difficult to distinguish between data protection and database protection. Data protection is concerned with protecting individuals' informational privacy, whereas database protection is concerned with protecting the creativity and investment put into the compilation, verification, and presentation of databases.
The Data Protection Act Legislation
The Government intends to submit the Data Protection Bill ('the Bill') to the National Parliament for enactment, and in that regard, an internal draft of the Data Protection Act was circulated in November 2020. While the content of the law has not been made public, there have been a number of indications from the government about the new dimensions that the Bill will introduce.
The Bill is intended to define data controllers (as opposed to data users) as individuals who collect, process, use, share, or otherwise process data within Bangladesh or data of Bangladesh residents. It has been reported that it will cover certain aspects of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'), specifically the data quality principle, use limitation principle, and security safeguards principle, as opposed to the collection limitation principle and accountability principle, which are addressed to some extent by the Digital Security Act.
Another new requirement is to push for data localisation, or data sovereignty, as the Bill states that Bangladeshi citizens' personal data must remain in the country. The Bill specifically states that every data controller must keep at least one serving copy of such data within the geographical boundaries of Bangladesh.
The public sector and Artificial Intelligence law
There is no separate law governing this matter. However, under the Digital Security Act, anyone who commits or aids and abets in committing an offence via computer, digital device, computer network, digital network, or any other digital medium will face a term of imprisonment of up to 14 years or a fine of up to BDT 2.5 million.
The issues raised foreshadow a sliver of the regulatory scrutiny that sentient systems will face. Addressing this gaze necessitates the adoption of two entity-level attitudes. To begin, because compliance is trite, entities may consider investing in processing techniques that maintain data-light sentient systems.
Second, entities must recognize that privacy is not synonymous with privacy law. Privacy is an interdisciplinary goal; organizations must empower their engineers to determine its technical boundaries.
Entities deploying such systems may, for starters, articulate a processing pipeline for them. This will be done in accordance with their privacy policies. The pipeline must include the following information: the system's role, the location of its servers, the analytics and third-party tracking tools that the system may use, and the risks that its data processing activities may cause.
Concurrently, businesses must intensify efforts to recognize the wide range of functions that their sentient system may perform. This data can be used to set hard limits on data processing. They can also be used to identify safe harbor use cases; for example, sentient systems processing data to revive languages may be exempt from certain privacy law provisions.
Transparency and law regards to Artificial Intelligence:
The common thread running through these recommendations is transparency. Sentient systems' commitment to openness is likely to serve as an antidote to the concern that they'monitor' individuals by collecting personal data. Adopting a framework that operationalises openness and fairness in personal data processing may assist entities in effectively navigating privacy law.
The 2030 Agenda was incorporated into Bangladesh's seventh Fiscal Year Plan (2016-2020). This is an excellent opportunity to carry out the 2030 agenda while reflecting the needs of the SDGs in the national plan. To advance, the Bangladesh government, NGOs, philanthropists, tech companies, and organizations that collect or generate large amounts of data will need to take decisive action. There are two major issues that must be addressed: data accessibility and a scarcity of talent capable of improving AI capabilities, improving models, and implementing solutions.
AI can play critical roles in addressing the challenges of the SDGs. McKinsey Global Institute has identified approximately 160 SDG cases where AI can be used to solve problems. Bangladesh is committed to using emerging Artificial Intelligence to solve the most pressing SDG problem.
To comprehend the upcoming challenges of artificial intelligence, an ideal procedure for applying AI in various sectors is required. We have identified seven national priority sectors.
Public service delivery, manufacturing, agriculture, smart mobility and transportation, skill & education, finance & trade, and health are among them. We have identified scopes and recommended actions for each of the sectors. Taking into account all of the recommendations from various sectors and challenges, we identified six strategic pillars for AI in Bangladesh and developed a development roadmap for the pillars in order to establish a sustainable AI Ecosystem and Artificial Intelligence law in the country. Bangladesh's six strategic Artificial Intelligence pillars are as follows:
i) research and development,
ii) AI workforce skilling and reskilling,
iii) data and digital infrastructure,
iv) ethics, data privacy, security, and regulations,
v) funding and accelerating AI start-ups, and
vi) industrialisation for AI technologies. Aside from a strategic brief, each strategy includes a road map, action plan, related stakeholders, and lead ministries.
Anyone can see the broader strategy steps planned for Bangladesh over the next five years in that summary roadmap given by the goverment. Then the country can consider our current readiness in terms of infrastructure, awareness, resource pool, social and legal challenges, and other pertinent issues when developing the road map.
Deefakes and Artificial Intelligence law in Bangladesh:
Deepfakes are fake media in which a person's likeness in an existing image or video is replaced with someone else's. While the act of faking content is not new, deepfakes use powerful machine learning and artificial intelligence techniques to manipulate or generate visually and audibly deceptive content. Deep learning is used to create deepfakes, and the main machine learning methods involve training generative neural network architectures such as autoencoders or Generative Adversarial Networks (GANs).
Deepfakes have received widespread attention for their use in the creation of child sexual abuse content, celebrity pornographic video, revenge porn, fake news, hoaxes, bullying, and financial fraud. This has prompted both industry and government to respond by detecting and limiting their use.
How does deep fake in Artificial Intelligence work?
AI technologies are used to create a deepfake. A program is taught to replace or synthesize faces, speech, and emotions. It is used to imitate an action that a person did not commit.
As a result, it is clear that Deepfake is beneficial to the media and film industries. It can be a great tool for creating content and making films. However, it is used to create pornography, financial fraud, fake news, fake videos, bullying, and so on. It is obvious that this is a technology with few advantages and many disadvantages. It causes a slew of major issues for humanity. Law does not evolve at the same rate as technology. Nowadays, technology is rapidly evolving.
However, the development of law is extremely slow. As a result, technology easily wins the race. In Bangladesh, there is no specific law that deals with deepfake-related crimes. However, we can use existing laws to help us prevent this type of crime. I'll go over these laws later.
Copyright infringement and Artificial Intelligence law:
World Intellectual Property Organization (WIPO) draft issue paper on AI and Intellectual Property. However, copyright alone cannot prevent deep fake. Because the victims are not the owners of these videos and photographs. Section 72 of the Bangladesh Copyright Act-2000 defines certain acts that do not violate copyright. This is a lengthy list. Unfortunately, the creator of the deepfake video or images has copyright protection. Victims is not protected by copyright. As a result, the victim has no legal recourse against the creator of the deepfake video and images. As a result, it is clear that using Copyright Law to take legal action against the wrongdoer is extremely difficult.
Law Against Defamation and Artificial Intelligence law:
Another avenue for legal action against deepfake crime is through a defamation case. However, in Bangladesh, defamation is used incorrectly.
According to Section 499 of The Penal Code 1860, "Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person, except in the cases hereinafter excepted."
Section 500 of the Penal Code 1860 states that "whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."
However, in Bangladesh, the majority of defamation cases are filed solely for harassment. As a result, the dismissal rate of defamation cases in lower courts is very low. However, under Section 198 of the Criminal Procedure Act of 1898, any aggrieved person may file a case of defamation.
Another law exists to prevent the misuse of defamation-related crime. That is the 2018 Digital Security Act. However, this law will not prevent the abuse of the defamation crime. As a result, we must strengthen our defamation laws.
Data protection legislation and Constitution in Bangladesh:
We have no data privacy or data protection laws, which is a harsh reality. Every person has the right to privacy under Article 33(b) of our Constitution. If this right is violated, he or she may file a case in the High Court Division pursuant to Article 102. (1).
According to Section 7 of the Right to Information Act of 2009, everyone has the right to keep his or her data safe. Nobody is going to publish his data. Anyone or any authority has no right to access his data. The provisions of The Digital Security Act 2018 can be used to prevent the misuse of personal data. However, these provisions are insufficient.
Pornography Regulations Act and Digital Security in Bangladesh:
The majority of Deepfake's videos are pornography or revenge porn. The majority of the victims in this case are women. The Pornography Control Act of 2012 can be of assistance. Section 8 of the Pornography Control Act of 2012 severely restricts pornography with a wide range of penalties. Section 8 (1) makes any act capturing video or still pictures of sexual intercourse or behavior exposing sexual sensation, with or without consent of parties in sexual interaction, punishable by imprisonment for a maximum of 8 years and a fine of 2 lac taka.
Making pornographic videos with minors is a major offense punishable by ten years in prison and a fine of five lac taka under Section 8(6).
AI is not only producing patentable products, but it has also begun producing potentially copyrightable works such as newspaper articles, songs, poems, and books, which are obviously creative and artistic in nature. For example, the Flow Machine developed by a team of Sony researchers can compose music; another machine, Mubert, which has been dubbed "the world's first online music composer," can continuously produce music in real time.
This leads us to the obvious questions: Is the creation of AI protected by intellectual property? Who owns the copyright to such a creation? Is it a breach of IPR ethics? These are increasingly important questions these days. There are numerous debates about who created AI and who owns it.
It should be noted that, as an extension of the Berne Convention (1971), only computer programs and data compilations have been protected as copyrightable works under Articles 4 and 5 of the WIPO Copyright Treaty and Articles 10(1) and 10(2) of Trade Related Aspects of Intellectual Property Rights (TRIPs). There is no mention of AI protection in these treaties.
In this regard, an intriguing example can be found in Naruto's case (Naruto v. David John Slater et al, No. 3:2015-cv-04324,9th Cir. ), in which a monkey took a'selfie.' When a photographer complained about the monkey's'selfie,' the US Copyright Office stated that "the Copyright Office would not register works produced by animals or machines."
It even went on to say, "To qualify as a work of 'authorship,' a work must be created by a human being," which was not previously mentioned in the copyright law, and the term 'author' was never defined in this law. In contrast, the European Union (EU) has proposed in a draft paper that robots powered by AI be given a "special legal status."
According to the paper, such a robot must abide by basic 'civil laws.' The EU's interpretation is somewhat acceptable, but the US' refusal to grant copyright for non-human creation raises additional questions, such as who would own the rights to an AI creation. Some articles argued that these issues could be resolved through agency law or that the person in charge of the AI should be granted copyright. Other arguments suggest that the issue of co-authorship be considered whenever an AI creation is involved.
However, many countries' laws are deficient in terms of AI, so excluding AI from copyright law is not the ultimate solution. This is not the way to approach AI development. To address this difficult issue, more global attention and consensus are required.
WIPO Copyright Treaty and the TRIPs agreements:
According to the WIPO Copyright Treaty and the TRIPs agreement, there is currently no clear definition or mention of protection in international treaties. The WIPO Worldwide Symposium on Intellectual Property Aspects of AI, held at Stanford University from March 25 to 27, 1991, was strangely silent on many important issues.
A careful reading of the symposium paper reveals that it was more concerned with defining AI than with finding a way forward to address the issues raised by IP rights. In fact, current laws, both at the national and international levels, are inadequate to address this issue.
Some attendees at the symposium argued that because software is protected by copyright laws, AI work should be treated similarly. However, if humans claim ownership of an AI creation, they must also accept responsibility for AI infringement. We now live in a technologically magical society. It is increasingly controlling our daily lives and will continue to do so in the future as AI creations advance.
AI is advancing at such a rapid pace that current legal systems are incapable of dealing with it. As a result, the international community must consider the potential legal and ethical implications. "The short-term impact of AI depends on who controls it; the long-term impact depends on whether it can be controlled at all," Stephen Hawking once said.
Given the significance of the new thinking on AI creation and Hawking's prediction, the WTO and WIPO should give this issue careful consideration. As AI becomes more difficult to distinguish from human creativity, the legal issues surrounding authorship are bound to become more complicated in the coming years.
Numerous challenges with Artificial Intelligence law and Deep Fake:
There are legislative barriers to protecting AI-generated inventions, particularly with regard to human inventorship requirements, prior arts, examination of inventive steps, and novelty. AI-generated inventions pose numerous challenges, including determining what constitutes "prior art" for machine-generated inventions. Is it possible for ordinary skilled people, such as patent examiners, to locate 'prior arts' produced by sophisticated machines?
Do sophisticated machine AI examiners, rather than human patent examiners, need to be used to search for 'prior art'? Furthermore, because inventive steps are judged on 'non-obviousness,' which implies the gap or improvement between the proposed invention and existing 'prior arts,' such differences would be difficult to measure by a person with ordinary skill in the relevant art. Furthermore, computer-generated claims may be designed in such a way that they obstruct future advances in knowledge.
Another point worth discussing is the requirement for human inventorship in a patent application. Even though the EU approach of 'first to file' justifies non-examination of the inventor in the true sense, failure to meet the formal requirement of human inventorship will result in patent application rejection. In contrast, the US approach of 'first to invent' requires disclosure of the inventor by definition, or it will face EU-style consequences.
A similar concept can be found in the copyright system, where human authorship is required and thus AI generated works are not protected by copyright.
An analogous argument can be made in line with the ratio of the Famous Monkey Selfie Case (Naruto v Slater), in which the US Court did not allow authorship to Monkeys despite selfies being taken independently by Monkeys who clearly had independent thinking abilities. The jurisprudence of the Infopaq Case (Infopaq International A/S v Danske Dagbaldes Forening) in the European Union may also exclude AI generated works from copyright protection.
The court ruled in this case that copyright is only granted to original works, and that the originality must be stamped with the "author's personality." Similar difficulties may be encountered in AI-generated designs.
As a result, there is ambiguity, a lack of legal precision, and policy uncertainty regarding the intellectual property protection of AI generated contents. Policymakers, including relevant stakeholders in digital Bangladesh, should consider potential legislative and policy options to protect AI industry investments and promote creativity and innovation in this burgeoning sector.
Are you intending to know more of Cyber Law and Artificial Intelligence law in Bangladesh?
Employment termination law under the Labour Act 2006:
In Bangladesh, either the employer or the worker may terminate an employee's employment. There are multiple ways in which it can take effect. In sections (20-31) of the Labor Act of 2006, the procedure for terminating an employee's employment is outlined in detail.
Employment termination law in Bangladesh
Causes for dismissal:
May an employer terminate an employee for any reason, or is "cause" required? How does the applicable statute or regulation define cause?
In accordance with sections 23 and 24 of the Labour Act, an employer may terminate an employee who has been convicted of a criminal offense or found guilty of misconduct.
In addition, under section 26, an employee may be terminated without cause by providing the prescribed notice or pay in lieu. Under section 20, a worker may be terminated due to redundancy. In addition, according to section 22, a worker may be let go for reasons of physical or mental incapacity or ongoing ill-health certified by a registered medical practitioner.
Notice : Must termination be communicated prior to dismissal under Employment termination law? May an employer substitute pay for notice?
According to section 23 of the Labour Act, a worker may be terminated (for insubordination or a criminal offense) without notice or pay in lieu of notice. A permanent worker must be given 120 days' notice for termination under section 26, whereas a temporary worker must be given 30 days' notice (if he or she is a monthly rated worker) and 14 days' notice (if he or she is an hourly rated worker) for termination under section 26. (for other workers).
The employer may, however, terminate any employee without notice by paying wages in lieu of notice. If the employee has been continuously employed for at least one year, they are entitled to one month's notice or wages in lieu of notice. For dismissal, no prior notice is necessary.
In what situations may an employer terminate an employee without notice or payment in lieu thereof?
An employer may terminate an employee without notice or payment in lieu of notice if the employee has been convicted of a felony or found guilty of misconduct.
Separation pay:
Exists legislation establishing the right to severance pay upon employment termination? How is separation pay computed?
If an employee is fired for theft, misappropriation, fraud, or dishonesty in connection with the employer's business or property, or for disorderliness, riot, arson, or property damage in the workplace, he or she is not entitled to severance pay.
In accordance with subsection 23(3) of the Labour Act, if a worker with at least one year of continuous service is removed under extenuating circumstances rather than being terminated for criminal conduct or misconduct, he or she is entitled to 15 days' wages for each completed year of service. Nevertheless, a terminated employee is entitled to other benefits under the Labour Act, as applicable (such as provident fund, workers' profit participation fund, and welfare fund).
If a permanent worker's employment is terminated pursuant to section 26 of the Labour Act, he or she is entitled to 30 days' wages for each completed year of service or gratuity (if any), whichever is greater, in addition to any other benefit payable under the Labour Act, as applicable (such as provident fund, etc.).
Under section 20(2)(c) of the Labour Act, a worker who has been in continuous service for at least one year is entitled to 30 days' wages for each year of service or gratuity, whichever is greater. In addition, he or she will be entitled to any other benefits payable under the Labour Act (such as provident fund, etc).
Section 22(2) of the Labour Act stipulates that a worker who has been in continuous service for at least one year is entitled to 30 days' wages for every year of service or gratuity (if any), whichever is greater. In addition, he or she is entitled to any other benefits payable under the Labour Act (such as provident fund, etc).
Redundancy:
According to Section 20 of the Act, any employee may be terminated from the company in the event of redundancy. A worker who has been employed by the company for at least one year must be given thirty days' notice prior to termination. In addition, the worker is entitled to compensation equal to 30 days of wages for each year of service completed.
In accordance with section 21, if a worker is laid off and the employer intends to hire a new worker within a year, the employer must send a notice to the retrenched worker's last known address inviting him to apply for re-employment. If more than one retrenched employee is available, seniority in the previous service shall be given preference.
Section 23 discusses the penalties for infractions and convictions. A worker is punished for his or her misconduct and conviction. A worker may be subject to retrenchment, discharge, or termination of service without notice or pay in lieu of notice if he is found guilty of misconduct or committing a crime.
A worker found guilty of misconduct may receive a sanction other than dismissal, such as:
Removal
Demotion to a lower rank.
Stoppage of promotion for a maximum of one year and withholding of increment for a maximum of seven days.
Warning\ fine
The Act constitutes misconduct, specifically:
Wilful disobedience to any lawful order from a superior, whether committed alone or in conjunction with others.
Theft, deceit, and dishonesty
Persistent absence without leave or permission to be absent, absences exceeding ten days.
Habitual late attendance.
Consistent violation of any law, rule, or regulation.
Workplace negligence on a regular basis.
Altering, tampering with, damaging, or destroying an employer's official records.
If an employee who was terminated is exonerated on appeal, he must be reinstated to his original position or appointed to a suitable position. If neither option is feasible, he will be compensated.
In the event of an allegation of misconduct, a committee must investigate the matter, and the employee in question must be shown cause and given the opportunity to defend himself. It should be noted that a worker can be terminated without prior notice in the event of a criminal conviction or misconduct.
Methods of punishment:
According to section 24, no order of punishment may be issued against a worker unless the allegation against him is made in writing, he is given a copy of the allegation and at least seven days to respond, and he is afforded the opportunity to be heard. No order of punishment shall be issued against a worker unless the worker is found guilty after an investigation conducted by a committee comprised of employer and worker representatives and concluded within sixty days. If no disciplinary action is taken against an employee, the employer or manager approves the dismissal.
A worker accused of misconduct may be suspended pending an investigation, unless the matter is pending before a court, and for no longer than sixty days. During the period of suspension, however, a worker must be paid by his employer and receive his full allowance. The suspension order must be in writing and take effect immediately upon delivery to the employee. In the event that a worker is punished, a copy of the punishment order must be provided to the worker in question.
No fine exceeding one-tenth of wages payable to a worker during a wage period may be imposed on any worker, according to section 25's special provision regarding fines.
A worker who is under 15 years old shall not be subject to a fine. No fine imposed on a worker may be collected in installments or more than 60 days after the date it was imposed. Employers are required to record all fines in a prescribed register.
A dismissal without cause
Section 26 permits an employer to terminate a worker's employment for convenience. Under this Section, an employer may terminate the employment of a permanent worker by providing him with a written notice of 120 days if he is a monthly rated worker and 60 days if he is another worker.
In addition, it is impractical to provide notice to the employee; an employer may offer compensation in lieu of notice. In the event of such a termination, the employee must be compensated at a rate of 30 days' pay for each completed year of service or gratuity, whichever is greater.
Resignation of an employee under labour law of Bangladesh:
According to section 27, a permanent employee may resign by providing 60 days' written notice to the employer. In contrast, a temporary worker may terminate his employment by providing 30 days' written notice if he is a monthly rated worker and 14 days' written notice in all other cases. However, if an employee wishes to resign without notice, he may do so by paying the employer an amount equal to the wages for the notice period.
Retirement under labour law of Bangladesh:
Retirement is discussed in Section 28. A worker must retire at the age of 60, and he or she must be compensated for all outstanding obligations. To determine the age of a worker, the date of birth recorded in his or her service book shall serve as conclusive evidence. Any authority may employ a contract-holding retiree if it sees fit.
Under section 28, if an industry is shifted or a sector is permanently closed due to a natural disaster or other disaster beyond human control, the government may determine the employer-employee relations in accordance with rules.
According to section 29, if a worker is a member of a provident fund and is entitled to any benefit from such a fund, including the employer's contribution, he or she is exempt from income tax. He shall not be disqualified from receiving the benefit due to layoff, discharge, dismissal, retirement, removal, or termination of service.
When a worker's employment ends due to retirement, discharge, retrenchment, dismissal, termination, or any other reason, the appointing authority must pay all amounts owed to him within a maximum of 30 working days.
Section 31 stipulates that, at the time of retrenchment, discharge, or termination of service, every employee is entitled to receive a service certificate from his employer.
Section 307 specifies the amount of punishment for violating a provision of Bangladesh labor law when no other provision of law specifies a punishment. Whereas section 310 stipulates that if an employer is punished for the violation of any law, rule, regulation, or scheme of the law, the court may, by written order, impose additional punishment for removing the cause for which the offense was committed.
Dismissal under labour law in Bangladesh:
Due to "Misconduct," an employee may be "Fired." "Dismissal" is defined by Section 2(39) of the Labour Act, 2006 (as amended in 2013) as "the termination of a worker's services by an employer for misconduct."
The following definitions of "Misconduct" from Section 23(4) of the said Labour Act, 2006 (as amended in 2013) may be applicable in this instance:
willful insubordination or disobedience, alone or in conjunction with others, to any lawful or reasonable order of a superior theft, embezzlement, or fraud in connection with the employer's business or property absence without leave for more than ten days riotous or disorderly conduct in the workplace, arson, or any act subversive of discipline
According to Section 24 (1) of Said Labour Act, the following procedures must be followed in the event of a Dismissal:
The charges against him must be documented in writing.
He must be found guilty after an investigation conducted by an Investigation Committee comprised of an equal number of representatives from the Employer and the Workers, with the duration of the investigation not exceeding sixty days. The employer or manager must approve such a dismissal order.
The said section 24 goes on to state in terms Employment termination law:
i)An employee accused of misconduct may be suspended pending an investigation into the charges against him, but such suspension shall not exceed sixty days unless the matter is pending before a court. During the period of such suspension, a worker's subsistence allowance and other allowances, if any, shall be paid by his employer.
ii) A suspension order must be in writing and take effect immediately upon delivery to the employee.
iii) During an investigation, the accused worker may be assisted by any establishment employee nominated by him.
iv) If oral evidence is presented on behalf of a party during an investigation, the opposing party may cross-examine the witness.
v) If, after an investigation, a worker is found guilty and punished under section 23 (1), he is not entitled to wages for any period of suspension, but is entitled to subsistence allowance for such period.
vi) If the charges against the worker are not proven in the investigation, he shall be deemed to have been on duty during the period of suspension for investigation, if any, and shall be entitled to his wages and subsistence allowance for the period of suspension.
When a worker is punished, a copy of the order imposing the punishment must be provided to the worker in question
viii) If a worker refuses to accept any notice, letter, charge-sheet, order, or other document addressed to him by the employer, it shall be deemed that such notice, letter, charge-sheet, order, or document has been delivered to him if a copy of the same has been displayed on the notice board and another copy has been sent to the worker's address as available from the employer's records, by registered post.
ix) When determining a worker's punishment, the employer must consider the employee's prior record, the severity of the misconduct, and his or her achievements and accomplishments during his or her employment.
According to subsection (2) of section 23 of the aforementioned Labour Act, a worker convicted of misconduct may, in lieu of dismissal under subsection (1), be subject to any of the following punishments, namely:
Removal; reduction to a lower post, grade, or pay scale for a maximum of one year Promotion halted for a period not to exceed one year; Withholding of increment for up to a year; fine; suspension without pay and subsistence allowance for up to seven days; reprimand or admonition.
According to section 23(3), a worker who is "removed" as a form of retaliation must be compensated by his employer at the rate of fifteen days for each full year of service if his continuous service is at least one year. Except in cases of theft, embezzlement, or fraud related to the employer's business or property, riotous or disorderly conduct in the workplace, arson, or any act subversive of discipline.
Reinstatement as per employment law in Bangladesh:
"Reinstatement of a dismissed employee pursuant to section 34 of the Industrial Relations Ordinance of 1969 (briefly, the Ordinance).
Mr. Asrarul Hossain, the learned Advocate for the petitioner, the employer, and Mr. Mozammel Huq Bhuiya, the learned Advocate for respondent No. 1, the employee, have been heard. It is not necessary to reproduce the facts of the case in order to dispose of this rule, as it can be disposed of based on the construction of Section 2(XXVIII) of the Ordinance in conjunction with Section 34 of the same ordinance. Respondent No. 1 was employed as a Supervisor by the petitioner, Sonali Bank, at the relevant time; however, he was terminated by the petitioner after an internal investigation into allegations of misconduct.
He had challenged the dismissal order under Section 34 of the Ordinance and was granted the remedy following a thorough hearing. Mr. Asrarul Hossain has referenced section 2 of the Ordinance's definition of a worker or workman.
He argued that a worker who has been terminated or removed from employment and whose termination or removal is unrelated to any industrial dispute cases is not a worker for the purposes of any proceeding under the Ordinance, and therefore cannot file an application under section 34 with the labor court. He has cited a number of court decisions in support of this position, including the Supreme Court's decision reported in 30 DLR 251 and two decisions of this court reported in LEX/BDHC/0101/1975: 28 DLR 160 and 30 DLR 211.
Evidently, Mr. Hossain's argument has merit and must be upheld, as it is now a settled point of law that a dismissed worker, whose dismissal is unrelated to an industrial dispute, cannot file an application under section 34 of the Ordinance, and that his remedy is to file a complaint under section 25 of the Employment of labor (Standing orders) Act, 1965. Consequently, it is evident that the application for reinstatement under section 34 was not maintainable, and that the challenged order of the labor court was void for lack of jurisdiction."
"The respondent was fired from the company for insubordination after a thorough investigation and with the prior approval of the Managing Director, who is the Chief Executive Officer of the company. As the dismissal order was issued as a matter of routine procedure by the Assistant Labour Officer, the High Court Division found nothing wrong with the order and consequently declared the Labour Court's judgment and order to have been passed without legal authority and without legal effect.
Hopefully, the preceding discussion has enabled everyone to comprehend layoffs and their prescribed procedures.
What are the procedural requirements for dismissing an employee in Bangladesh?
Section 24 of the Labour Act specifies the procedure for dismissing a worker, which includes informing him or her of the allegation in writing and providing an opportunity for a hearing. However, by law, no prior approval from a government agency is required.
Under what conditions are employees protected from dismissal in Bangladesh?
Despite being found guilty of misconduct, a worker may be sentenced to any of the following punishments under section 23(2) of the Labour Act in extenuating circumstances:
removal (in which case he or she is entitled to 15 days' pay for each completed year of service, provided that he or she has been in continuous service for at least one year);
reduction to a lower post, grade, or pay scale for a period of no more than one year;
Promotion suspension for a period of no more than one year; withholding of increment for a period of no more than one year; fine; suspension without wages or subsistence allowance for a period of no more than seven days; or censure and warning.
Is there a set of rules in place for mass terminations or collective dismissals?
No.
Are class or collective actions permitted, or must employees assert labor and employment claims individually?
In employment cases, class and collective actions are permitted.
Is it legal in your state for employers to impose a mandatory retirement age? If so, at what age and with what restrictions?
The Labour Act, Section 28(1), establishes a retirement age of 60 years.
How ‘Tahmidur Rahman & TR Barristers in Bangladesh Associates’ helps the Employee/Employer according to Labour Law Provisions of Bangladesh
At TR Barristers in Bangladesh in Gulshan, Dhaka, Bangladesh, the barristers, lawyers and lawyers are highly experienced in dealing with labor disputes. It also has experience in consulting and assisting numerous international clients, in addition to handling various issues related to employment service among domestic clients on a regular basis.
For queries or legal assistance, please reach us at:
E-mail: info@trfirm.com Phone: +8801847220062 or +8801779127165 House 410, Road 29, Mohakhali DOHS
Bangladesh has a population of approximately 180 million, of which approximately 2 million suffer from kidney diseases and an additional half a million suffer from corneal diseases. Although the need for organ transplants to cure a growing number of patients is growing, the culture of organ donation in the United States is not well-established.
Even though Act No. 05 of 1999 was enacted in response to instances of abuse in terms of Organ donation, it is riddled with flaws that defeat the very purpose for which it was enacted. Section 3 in conjunction with sections 2(ga) and 6(1) of Act No. 05 of 1999 provides a very narrow definition of donor, namely "close relative."
This narrow definition of donors in Organ donation exacerbates the already substantial disparity between the demand for and supply of kidneys, resulting in kidney patients dying without transplant.
The large disparity creates a thriving black market for kidneys, which disproportionately affects the poor. According to Global Financial Integrity (GFI) of Washington, many people in Bangladesh, particularly in rural areas, are compelled to sell their organs to settle debts or for brief financial relief. They are poor, uneducated, destitute, and oblivious to the after-sale complications.
Several of them develop chronic health problems. A minority are better off. The brokers minimize the risk of future complications, and sometimes physicians even assure prospective sellers that their kidneys will regrow. Common postoperative complications include infection, persistent pain, fatigue, and impaired function of the remaining kidney.
Provision for exceptional circumstances for Organ Donation Law in Bangladesh
As a result, a provision had to be made for exceptional circumstances in which a donor may not be a "close relative," and "exceptional circumstances" must be defined and/or criteria must be established for their determination. The Act No. 05 of 1999 does not establish a central authority to regulate the removal and use of Organs for Transplantation.
The enactment of Act No. 05 of 1999 was necessitated by the need for such a regulatory body to prevent abuse. In the United Kingdom, one such authority is the Human Tissue Authority (HTA) (UK).
Due to the inadequacies of Act No. 05 of 1999, kidney patients are compelled to travel abroad with donors (who do not fall within the Act's narrow definition of "near relative") for the purpose of Transplantation in violation of the Act; kidney transplant abroad is very expensive compared to the cost of having it done locally and is therefore out of reach for many.
If section 2(4) is further amended, anarchy will ensue in the organ transplantation sector of our nation. Section 7(kha) of Act No. 01 of 2018 establishes the Cadaveric National Committee, which will oversee all cadaveric kidney transplants in Bangladesh. The Government has already formulated (briefly, the Rules of 2018) in accordance with Act No. 05 of 1999 in order to carry out the purposes of Act No. 05 of 1999.
In light of the global trend of increasing the number of organ donors, the high prevalence of kidney disease in Bangladesh, and the vast disparity between the demand for and supply of kidneys in Bangladesh, the court deemed it necessary to obtain the expert opinions of several individuals prior to deciding the Rule Nisi.
Therefore, by order dated 28.08.2019, this Court directed seven prominent experts in the relevant fields to provide their opinions. Accordingly, the experts provided the court with their consolidated written opinion. In the interest of the public, respondent No. 1 will adhere to the opinion of the experts. Moreover, if this Court issues any directives, the government will comply. Consequently, the Rule may be discarded.
Prevalence of kidney disease and the need for organ transplants in Bangladesh:
There is no study in Bangladesh that estimates the prevalence of kidney disease and the need for organ transplants. However, some estimates indicate that at least 20 million people in Bangladesh suffer from kidney disease, and 35,000 of them die annually from kidney failure. The estimated annual demand for kidney transplants is 5,000. However, only about 100 people on average can obtain kidneys from relatives for transplantation.
The Bangladesh Organ Donation Law of 1999 permits posthumous or brain-death kidney donation outside of living close relatives, but such donation has never been implemented. In accordance with the law passed in 1999, only brothers, sisters, father, mother, maternal and paternal uncles and aunts can donate kidneys. Since 1982, approximately 1400 kidney transplants, 5500 cornea transplants, and 4 liver transplants have occurred in Bangladesh. Cornea transplantation, on the other hand, has reached an acceptable level with a threefold increase in transplantation since 2009.
Organ transplantation is a modern medical and technological treatment that saves the lives of hundreds of thousands of patients with end-stage organ failure who are suitable candidates. In Bangladesh, the first successful kidney transplantation from living-related donors was performed in 1982, and the procedure became routine in 1988. This was followed by cornea from deceased donors in 1984, liver from living-related donors in 2010 and bone marrow from living-related donors in 2014.
The Human Organ Transplantation Act was initially passed by the parliament of Bangladesh in 1999, allowing both brain-death donation and transplants from living-related donors. Before 1999, religious approval (fatwa) was obtained from religious leaders that acknowledged brain death donation and permitted deceased donation for transplants. In January 2018, the current law was revised. Only 1791 kidney, six liver, and 25 bone marrow transplants were performed from living-related donors between 1982 and 2017. In Bangladesh, no transplants of deceased organs have yet begun. Only 5,500 corneas from deceased donors have been transplanted.
Long-standing concerns exist regarding the lack of transplantation of vital organs from deceased donors in Bangladesh and its effect on the rising demand for organs from living donors. However, living-related donors are extremely scarce. Patients with multiple failing organs are frequently forced to purchase organs from the poor. In Bangladesh, it creates an illegal and unethical market for human organs.
Condition of Government Hospitals and Clinics:
However, government hospitals and clinics are always overcrowded because the vast majority of treatment, drugs, and medications are supposed to be provided for free or at minimal cost, whereas privately funded hospitals are expensive and unaffordable for the vast majority of the population. Due to limited resources, organ transplantation and other tertiary-level healthcare services are not a top priority for the Bangladeshi government.
Removal and Transplant and exceptions in regards to Eye and Bone Marrow
According to the initially proposed "Transplantation of Human Organs Act-2017," organ removal and transplant cannot be performed in any hospital without government approval.
Eye and bone marrow transplant donors are not required to be blood relatives. However, public hospitals with specialized transplant units could perform transplants without government authorization.
In accordance with the current law, which was enacted in 1999, a person who violates the law could face between seven and three years of imprisonment or a fine of Tk 3 lakh, or both. The proposed law stipulated a maximum prison sentence of three years and a fine of Tk 10 lakh, or both.
In addition, there would be a four-person hospital certification board led by the director of the health directorate. Without the board's certification, no organ transplants would be permitted in any hospital. Under the proposed law, anyone who provides false information about the relationship between an organ donor and a recipient, or who encourages, provokes, or threatens another person to provide such information, faces up to two years in prison or a fine of Tk 5 lakh, or both.
Kidney, liver, bone, eye, heart, lungs, and tissue are among the transplantable organs.
The parliament has passed the "Transplantation of Human Organs (Amendment) Bill, 2018" in an effort to improve health services in Bangladesh in light of technological and medical advancements.
According to the proposed law, there will be a medical board in each hospital to decide transplantation issues and a National Cadaveric Committee to oversee the transplantation of human organs in Bangladesh. According to the proposed law, any organ transplantable to the human body, including the kidney, liver, bone, eye, heart, lung, and tissue, could be transplanted after their collection from heart-beating or actively supported human bodies for transplantation purposes.
In the early years of organ transplantation, there was no law in Bangladesh prohibiting the sale of organs in underground markets. The Human Organ Transplantation Act (HOT A, 1999) was initially passed by the parliament of Bangladesh and published in the Gazette on April 13, 1999 in an effort to restrict organ trade. This act applied to the removal of organs for transplantation from both deceased and living donors. In addition to the kidney, heart, liver, pancreas, bone, asthimajja, eye, skin, and tissue, it authorized the removal of any other transplantable organs or body parts (section- 2a).
Human Organ Transplantation Act and Religious leaders:
Before 1999, religious leaders in Bangladesh issued a fatwa (religious approval) that recognized both living and brain death criteria and permitted both living and brain-dead donors to donate organs for transplantation.
A close relative may only donate organs to save the lives of other close relatives, per the Human Organ Transplantation Act 1999 Act. Only first and second-degree blood relatives and spouses are included. First-degree blood relatives are the father, mother, adult brother and sister, and adult son and daughter; second-degree blood relatives are the paternal and maternal uncles and aunts. Spouses consist of both husbands and wives. Except for these close relatives, no one was legally permitted to donate organs.
A few provisions of the existing law were revised and approved by the government in January 2018. The 2018 revision of the Act expands the definition of "close relatives" to include third-degree blood relatives in addition to the existing donors. Grandparents, grandchildren, and first cousins comprise third-degree blood relatives.
The new law stipulates that anyone can donate bone marrow and cornea to anyone else, but other organs and body parts may only be donated between close relatives who are on the act's donors list. This act prohibits the sale of organs and the receipt of monetary compensation for organ exchange. It also prohibits organ sales advertisements in their entirety.
Current Scenario for the need of transplants:
Bangladesh has a population of approximately 1.6 million, of which approximately 20 million suffer from kidney diseases and an additional half a million suffer from corneal diseases. Although the need for organ transplants to cure a growing number of patients is growing, the culture of organ donation in the United States is not well-established.
Even though Act No. 05 of 1999 was enacted in response to instances of abuse, it is riddled with flaws that defeat the very purpose for which it was enacted. Section 3 in conjunction with sections 2(ga) and 6(1) of Act No. 05 of 1999 provides a very narrow definition of donor, namely "close relative." This narrow definition of donors exacerbates the already substantial disparity between the demand for and supply of kidneys, resulting in kidney patients dying without transplant.
The large disparity creates a thriving black market for kidneys, which disproportionately affects the poor. According to Global Financial Integrity (GFI) of Washington, many people in Bangladesh, particularly in rural areas, are compelled to sell their organs to settle debts or for brief financial relief. They are poor, uneducated, destitute, and oblivious to the after-sale complications. Several of them develop chronic health problems. A minority are better off.
The brokers minimize the risk of future complications, and sometimes physicians even assure prospective sellers that their kidneys will regrow. Common postoperative complications include infection, persistent pain, fatigue, and impaired function of the remaining kidney.
Close Relative and Exceptional circumstances for Organ Donation Law in Bangladesh
As a result, a provision must be made for exceptional circumstances in which a donor may not be a "close relative," and "exceptional circumstances" must be defined and/or criteria must be established for their determination. The Act No. 05 of 1999 does not establish a central authority to regulate the removal and use of Organs for Transplantation.
The enactment of Act No. 05 of 1999 was necessitated by the need for such a regulatory body to prevent abuse. In the United Kingdom, one such authority is the Human Tissue Authority (HTA) (UK). Due to the inadequacies of Act No. 05 of 1999, kidney patients are compelled to travel abroad with donors (who do not fall within the Act's narrow definition of "near relative") for the purpose of Transplantation in violation of the Act; kidney transplant abroad is very expensive compared to the cost of having it done locally and is therefore out of reach for many.
If section 2(4) is further amended, anarchy will ensue in the organ transplantation sector of our nation. Section 7 of Act No. 01 of 2018 establishes the Cadaveric National Committee, which will oversee all cadaveric kidney transplants in Bangladesh. The Government has already formulated (briefly, the Rules of 2018) in accordance with Act No. 05 of 1999 in order to carry out the purposes of Act No. 05 of 1999.
In light of the global trend of increasing the number of organ donors, the high prevalence of kidney disease in Bangladesh, and the vast disparity between the demand for and supply of kidneys in Bangladesh, the court deemed it necessary to obtain the expert opinions of several individuals prior to deciding the Rule Nisi.
Illegal Organ Donation:
According to various news reports, illegal Organ donation is causing illicit financial flows out of the country, and as a result, people are turning to dialysis as a treatment method, which is economically and medically unsustainable in the long run; patients typically discontinue treatment within three years. In order to prevent the loss of 35,000 to 45,000 lives annually due to completely preventable causes, it is essential that some guidelines are formulated and eventually amendments are made to Act No. 05 of 1999 in order to address the crisis of kidney donation and transplantation.
There is no study in Bangladesh that estimates the prevalence of kidney disease and the need for organ transplants. However, some estimates indicate that at least 20 million people in Bangladesh suffer from kidney disease, and 35,000 of them die annually from kidney failure. The estimated annual demand for kidney transplants is 5,000. However, only about 100 people on average can obtain kidneys from relatives for transplantation.
The Bangladesh Organ Donation Law permits posthumous or brain-death kidney donation outside of living close relatives, but such donation has never been implemented. In accordance with the law passed in 1999, only brothers, sisters, father, mother, maternal and paternal uncles and aunts can donate kidneys.
Since 1982, approximately 1400 kidney transplants, 5500 cornea transplants, and 4 liver transplants have occurred in Bangladesh. Cornea transplantation, on the other hand, has reached an acceptable level with a threefold increase in transplantation since 2009.
Organ Donation Law in Bangladesh and technological treatment
Organ transplantation is a modern medical and technological treatment that saves the lives of hundreds of thousands of patients with end-stage organ failure who are suitable candidates. In Bangladesh, the first successful kidney transplantation from living-related donors was performed in 1982, and the procedure became routine in 1988. This was followed by cornea from deceased donors in 1984, liver from living-related donors in 2010 and bone marrow from living-related donors in 2014.
The Human Organ Transplantation Act was initially passed by the parliament of Bangladesh in 1999, allowing both brain-death donation and transplants from living-related donors. Before 1999, religious approval (fatwa) was obtained from religious leaders that acknowledged brain death donation and permitted deceased donation for transplants.
In January 2018, the current law was revised. Only 1791 kidney, six liver, and 25 bone marrow transplants were performed from living-related donors between 1982 and 2017. In Bangladesh, no transplants of deceased organs have yet begun. Only 5,500 corneas from deceased donors have been transplanted.
Long-standing concerns exist regarding the lack of transplantation of vital organs from deceased donors in Bangladesh and its effect on the rising demand for organs from living donors. However, living-related donors are extremely scarce. Patients with multiple failing organs are frequently forced to purchase organs from the poor. In Bangladesh, it creates an illegal and unethical market for human organs.
Healthcare system in Bangladesh and Organ Donation Law in Bangladesh
The healthcare system in Bangladesh is hierarchically structured from top to bottom. The Ministry of Health and Family Welfare is positioned at the top and provides policy advice to the two directorates of health services and family planning.
After receiving policy recommendations, the Directorate General of Health Services and the Directorate General of Family Planning implement these policies throughout the nation's hospitals and healthcare facilities. The healthcare service delivery system is hierarchical, proceeding from the national level to the district, subdistrict, union, and ward levels.
This system provides primary, secondary, and tertiary levels of promotion, prevention, and treatment for outdoor and indoor patients. In rural areas, sub-district, union, and ward-level hospitals and clinics provide primary healthcare services; district hospitals provide secondary services; and hospitals and institutes in divisional and capital cities provide secondary and primarily tertiary level services. In addition, medical college hospitals and institutes supported by the public provide healthcare services.
According to the initially proposed "Transplantation of Human Organs Act-2017," organ removal and transplant cannot be performed in any hospital without government approval, Additional Cabinet Secretary Ashraf Shameem told reporters after the weekly cabinet meeting. Eye and bone marrow transplant donors are not required to be blood relatives. However, public hospitals with specialized transplant units could perform transplants without government authorization.
Transplantation of Human Organs (Amendment) Bill, 2018
In accordance with the current law, which was enacted in 1999, a person who violates the law could face between seven and three years of imprisonment or a fine of Tk 3 lakh, or both. The proposed law in Organ donation stipulated a maximum prison sentence of three years and a fine of Tk 10 lakh, or both.
In addition, there would be a four-person hospital certification board led by the director of the health directorate. Without the board's certification, no organ transplants would be permitted in any hospital. Under the proposed law, anyone who provides false information about the relationship between an organ donor and a recipient, or who encourages, provokes, or threatens another person to provide such information, faces up to two years in prison or a fine of Tk 5 lakh, or both.
Kidney, liver, bone, eye, heart, lungs, and tissue are among the transplantable organs.
The parliament has passed the "Transplantation of Human Organs (Amendment) Bill, 2018" in an effort to improve health services in Bangladesh in light of technological and medical advancements.
According to the proposed law for Organ donation, there will be a medical board in each hospital to decide transplantation issues and a National Cadaveric Committee to oversee the transplantation of human organs in Bangladesh. According to the proposed law, any organ transplantable to the human body, including the kidney, liver, bone, eye, heart, lung, and tissue, could be transplanted after their collection from heart-beating or actively supported human bodies for transplantation purposes.
Prohibiting the sale of organs in underground markets
In the early years of organ transplantation, there was no law in Bangladesh prohibiting the sale of organs in underground markets. The Human Organ Transplantation Act (HOT A, 1999) was initially passed by the parliament of Bangladesh and published in the Gazette on April 13, 1999 in an effort to restrict organ trade.
This act applied to the removal of organs for transplantation from both deceased and living donors. In addition to the kidney, heart, liver, pancreas, bone, asthimajja, eye, skin, and tissue, it authorized the removal of any other transplantable organs or body parts (section- 2a). Before 1999, religious leaders in Bangladesh issued a fatwa (religious approval) that recognized both living and brain death criteria and permitted both living and brain-dead donors to donate organs for transplantation.
A close relative may only donate organs to save the lives of other close relatives, per the 1999 Act. Only first and second-degree blood relatives and spouses are included. First-degree blood relatives are the father, mother, adult brother and sister, and adult son and daughter; second-degree blood relatives are the paternal and maternal uncles and aunts. Spouses consist of both husbands and wives. Except for these close relatives, no one was legally permitted to donate organs.
A few provisions of the existing law were revised and approved by the government in January 2018. The 2018 revision of the Act expands the definition of "close relatives" to include third-degree blood relatives in addition to the existing donors. Grandparents, grandchildren, and first cousins comprise third-degree blood relatives. The new law stipulates that anyone can donate bone marrow and cornea to anyone else, but other organs and body parts may only be donated between close relatives who are on the act's donors list. This act prohibits the sale of organs and the receipt of monetary compensation for organ exchange. It also prohibits organ sales advertisements in their entirety.
Punishment for illegal dealings in Human tissue in Bangladesh-
Whoever-
(a) makes or receives any payment for the supply of, or for an offer to supply, any Human tissue; or
(b) seeks to find person willing to supply for payment and Human tissue; or
(c) offers to supply any Human tissue for payment; or
(d) initiates or negotiates any arrangement involving the making of any payment for the supply of, or for an offer to supply, any Human tissue; or
(e) takes part in the management or control of a body of persons, whether a society, firm or company, whose activities consist of or include the initiation or negotiation of any arrangement referred to in clause (d); or
(f) publishes or distributes or causes to be published or distributed any advertisement-
(i) inviting persons to supply for payment of any Human tissue; or
(ii) offering to supply any Human tissue for payment; or
(iii) indicating that the advertiser is willing to initiate or negotiate any arrangement referred to in clause (d); or
(g) abets in the preparation or submission of false documents including giving false affidavits to establish that the donor is making the donation of the Human tissues as a near relative or by reason of affection or attachment towards the recipient, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years.
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What is the Sunni Muslim Perspective on Organ Donation?
Many Muslims have historically and currently held the view that organ donation is haram, or forbidden.
This is due to the fact that the human body is regarded as sacred, and the Prophet Muhammad, upon whom be peace, stated that the body remains sacred after death and should not be harmed. He stated that breaking the bones of the deceased is equivalent to breaking the bones of a living person.
Similarly, the Quran states, "Whoever saves a life is as if he saves the lives of all humanity."
Therefore, many Muslims conclude from this verse that organ donation is a blessed act.
In 1995, the Muslim Law (Sharia) Council of the United Kingdom issued a fatwa allowing organ donation. In 2019, Mufti Muhammad Zubair Butt agreed in principle that it was permissible, but he disagreed with the earlier opinion, stating that organs can only be extracted after the heart has stopped beating, whereas the earlier ruling stated that they can be extracted after brainstem death. Most recently, in 2020, Shaykh Dr. Rafaqat Rashid has written further on the subject, reiterating the Islamic legitimacy of using brainstem death as the accepted definition of death for organ retrieval.
In conclusion, Sunni Muslims may adopt one of three positions regarding donation after death. They may decide to:
1.Donate their organs following brainstem death (DBD) or circulatory death (CD) (DCD)
2. Donate their organs, but only after they have died of circulatory failure
3. Refuse to donate organs
What is the definition of 'donor' as per the Transplantation Act in Bangladesh?
The verdict stated, "The already large gap between demand and supply of kidneys is widened by this narrow definition of donors, resulting in kidney patients dying without a transplant," adding, "The large gap disproportionately affects the poor by creating a black market for kidneys where abuses are rampant."
The verdict stated that if the definition of a donor pool (close relative) was expanded without any restrictions, the illegal kidney trade in Bangladesh would increase to an unfathomable degree. Therefore, a wholesale expansion of the definition of donor pool (close relative) cannot be tolerated.
To determine and verify the authenticity of emotional kidney donation, the court ruled that an investigation should be conducted in accordance with the following guidelines.
According to the ruling, the Authentication Board in Bangladesh, similar to the Authorization Committee in India, could decide on the petitioner's exceptional circumstances.
The court ruled that the board must ensure that any adult person related to the donor by blood or marriage donates an organ or tissue if a close relative is unavailable.
What are the responsibilities of authentication board in terms of donor law in Bangladesh?
The board must determine that no commercial transaction would take place between the recipient and the donor, and that no payment has been made or promised to be made to the donor or any other person.
The board must also prepare an explanation of the relationship between donors and recipients, as well as the circumstances that led to the offer being made.
To investigate why the donor wishes to donate, the board must examine documentary evidence of the link as well as old photographs of the donor and the recipient together.
The board must ensure that no middleman or tout was involved.
The board also requires evaluating the donor's and recipient's financial status by asking them to provide evidence in support of their vocations and income for the previous three fiscal years, as well as any gross disparity between the two parties' statuses to prevent commercial dealing.
The board also requires that the donor not be a drug addict.
The court ordered the Authentication Board to assess the donor's mental health and inform him of any potential negative consequences of kidney donation.
The court stated that if the Authentication Board rigorously ascertained the authenticity of an emotional donation by a known or related donor (but not unknown or unrelated), there would be a check and balance and the possibility of illegal kidney trade would be greatly reduced.
What is the most recent high court ruling on Organ Donation law in Bangladesh?
In December 2019, the High Court of Bangladesh issued an order amending the 2018 law to allow known persons other than relatives to donate kidneys. A nine-point policy was issued. Physical and mental examinations, as well as a "authenticity of emotional donation of a known or related donor," old photographs, a record of finances for the previous three years to look for gross anomalies in income, and other procedures were required.
In light of the high court's plea for such relaxation of Bangladesh's rule, and its contrast with laws in many other countries, it is worthwhile to investigate the possible and known arguments for restricting the act of organ donation.
Arguments for Donation Restrictions:
Restrictions on organ donation are typically justified by a number of arguments.
Corruption and Commodification: If organs can be sold for a profit, human trafficking may increase. Organ trafficking is a real issue in places like Bangladesh .It has been demonstrated that even when organs are exchanged between known people, money is likely to be exchanged. Any restrictions on behind-the-scenes dealings are nearly impossible to impose.
Exploitation: An open market for organs would result in the exploitation of weaker parties for organ harvesting. Unevenness in relationships does not have to be monetary.
Coercion: Similar inequalities in relationships can lead to coercion, even within a family.
Crowding Out:
If organs are bought and sold, wealthy clients will simply participate in the market rather than have an incentive to donate altruistically. Indeed, it has been demonstrated that loosening the restrictions on LURDS (organs exchanged for money) does not increase the number of transplants, but rather shifts the curve from altruistic donations to financially acquired organs.
The expansion of kinship in 2018 was expected to reduce the black market for organs.
The recent high court decision wishes to extend this to any known person with a proper mechanism in place, in order to avoid some of the problems mentioned above. While it is possible to distinguish a completely altruistic donation in extremely emotionally charged cases, a permission-based donation may be difficult to implement and manage when the number of donations is large.
Given that Bangladesh already has a black market for organs, ensuring the genuineness of many of the criteria may be difficult, even if the two are known to one another and come from financially compatible groups. Furthermore, limiting the right to donate for emotional reasons to those who are financially secure may appear discriminatory.
The poor may have feelings for related fellows to whom they would like to donate organs. A law requiring equal treatment for equal cases increases the possibility of abuse, though it is certainly possible to use the criteria to coerce someone from a wealthy family. The ability to resist is not always linked to one's financial situation, especially when family and peer pressures are involved.
What is the rule on unclaimed bodies in Bangladesh?
The laws of property, trust, and wills do not apply to the dead body because it is not a legal property of the former legal person. The sentiment of society toward the dead is valuable. When possible, a good law balances various interests and also considers social sentiments in policymaking while providing forms of freedom. This takes into account both individual rights and societal cohesive factors.
The law considers the fabric of the specific society and understands the implications for the various adhesive factors. While Lord Devlin and Hart disagree on the extent to which moral sentiments should be considered in a law, deterioration of values, eventually leading to corruption, which is the consequential corruption of allowing a certain procedure, is important if these consequences can be properly identified. At times, the law refuses to enter areas where the end result is unknown, causing society to slide down a cliff (R v Conway).
Allowing the acquisition of organs from unclaimed bodies in Bangladesh, where a large number of people are not covered by any social welfare scheme and where homeless and drifting people abound, may be analogous to taxing the dead for a life lived with little social support, placing an undue burden on the already neglected part and possibly creating further social alienation or corruption of values regarding social cohesion.
While obtaining organs from unclaimed bodies may reduce pressure on the black market, the act may also reinforce the notion that certain people are disposable. In the author's opinion, while harvesting organs from unclaimed bodies may increase the number of transplants, it may be a better choice in Bangladesh's socioeconomic context to first try to increase the number of consenting donors.
