Legal experts urge for exhaustive procedure for compensation claims
A panel consisting of legal professionals agreed that compensation laws in Bangladesh need to be codified to be able to appropriately compensate aggrieved parties under the law. The panel discussion was held during a day-long conference titled ‘Think Legal Bangladesh Corporate and Commercial Law Conference 2018’ at the Westin, Dhaka on May 5. Organized by Think Legal Bangladesh, an online legal resource platform, the conference hosted a number of sessions covering important issues in corporate and commercial law, where the most eminent lawyers and jurists of the country took part.
The ‘Tort Law and Corporate Accountability’ panel discussion was set to talk about compensation laws in areas of medical negligence, workplace harassment and motor accident in addition to discussing the overall situation of tort law practice in Bangladesh’s legal system.
Moderated by Barrister Imran Siddiq, the panel featured Senior Advocate of the Supreme Court AF Hassan Ariff, Barrister Mohamed Naser Alam, managing director Coca-Cola Bangladesh Ltd Shadab Khan and Madam Justice Kashefa Hussain. A keynote presentation by Barrister Nabil Ahsan preceded the panel discussion, in which the speaker laid out the situation of tort law practice in Bangladesh, pointing out that the concept of compensation itself is not well understood and it is often limited to only paying the burial costs for accident victims.
“There is no set procedure for claiming for compensation for medical negligence,” said Hassan Ariff, answering question from Imran Siddiq about why there have been so few, if any, successful compensation claims against hospitals and clinics. There are a number of factors, Senior Advocate Ariff pointed out, that discourage victims from claiming compensation. “As Barrister Nabil pointed out, since this is a specialized area, a civil court may not be in a position to assess the loss or assess if there is a negligence of tort,” Ariff said.
Another factor that affects a straightforward procedure, Ariff further said, is that Bangladesh Medical & Dental Council takes only disciplinary action. “They have no procedure for taking civil action against a delinquent,” he said. These further discourage victims to take action.
Madam Justice Kashefa Hussain, a permanent judge of the Supreme Court, said “We cannot bring private parties as respondents. That's the big limitation.” When asked by moderator Barrister Siddiq if the Consumer Rights Protection Act, 2009 provides an adequate basis for claiming compensation on behalf of victims of medical negligence, Madam Justice Hussain said that the consumer protection legislation covers a wide range of consumers, but she “can't find anything in consumer protection laws that can directly protect victims of medical negligence.”
AF Hassan Ariff agreed, saying he didn’t think that the writers of that Act had medical negligence in mind when they put it together. Advocate Ariff was among the legal experts that actually drafted the law.
Barrister Mohamed naser Alam, whose area of practice include corporate and commercial litigation, said, “If you want to use the Consumer Protection Act then you can't go directly to the civil court. I think there are some remedy available, but it's not the solution.” He said that there are many laws that are relevant but they need to be consolidated. “There are penalties, but the penalty doesn't reach the victim.”
Talking about compensation claims from manufacturers, Shadab Khan said that the provision for getting 25 percent compensation is a positive thing. “But unfortunately, from a manufacturer’s standpoint I see that also as a challenge, because there’s a lot of complaints without merit that are made for gaining that money.” The biggest challenge for consumers, Shadab Khan thought, is the process. “It is so slow that it's not worth the consumer's while,” he said.
For all compensation claims, including medical negligence, workplace harassment, motor accident, the panelist unanimously identified that a structured legal framework should be created with the specific intention of providing compensation to the victims. “We need a special tribunal. We need an exhaustive procedure,” Madam Justice Kashefa Hussain said.