It was a normal morning at Milestone School and College in Dhaka’s Uttara. Kids were giggling as they ran between classes. Teachers were setting up whiteboards, parents were making dinner and looking forward to seeing their kids in the afternoon. But then, in less than a minute, a Bangladesh Air Force F-7 BGI jetliner ploughed into the two-story building.
In less time than it takes to say it, a school became a graveyard.
A few days have passed, funerals have been held, tears have been shed. But one question remains: How could this happen? And, more importantly, who is legally responsible?
What the law says
The Constitution of Bangladesh is not a cryptic text. Article 32 guarantees the right to life and personal liberty. Article 18(1) enjoins the state to take measures to protect public health and safety. Article 23A mandates the state to pay special attention to the protection of children. When a government military plane barrels into a school, this is not only a horrible accident; it is a violation of the social contract.
Articles 18(1) and 23A are Directive Principles of State Policy in Part II of the Constitution. They are not justiciable. That means one cannot file a case just invoking these provisions. But they are not without effect. Courts construe enforceable fundamental rights -- such as the right to life in Article 32 -- through the lens of these principles.
In the present case, one can plausibly argue that the duty to protect children in Article 23A, and the duty to provide a safe environment to the people for the enjoyment of life in Article 18(1) should inform the judiciary’s construction of the state’s dereliction of duty. That the victims are schoolchildren only augments the likelihood that the court will construe these provisions to give flesh to claims made under Article 32, and provide a wide meaning to the State’s dereliction in preventing the foreseeable accident.
In a PIL (public interest litigation) suit, these provisions can be drawn upon as standards of morality and constitutional obligations to check state action or inaction, and to order remedial or policy measures. South Asian courts, and in particular the Indian and Bangladesh judiciaries, have a history of creatively leveraging directive principles to hold the executive to account and mandate executive or legislative or policy change.
The upshot, then, is that these otherwise non-enforceable provisions will likely make their presence felt in an effective manner when coupled with an enforceable fundamental right, in a constitutional litigation action involving government culpability, children and public safety.
From a criminal and civil law standpoint
The Penal Code of 1860 has some relevant provisions. Section 304A criminalizes causing death by negligence. If the probe uncovers evidence of poor maintenance, or lack of adequate protocols for training flights, this section might very well be invoked in a prosecution. Sections 285 and 286, concerning negligent conduct with explosive materials and dangerous machinery, respectively, may also be relevant.
Of course, criminal liability is one thing. The bereaved parents and siblings have rights to more than tears. They have a right to justice. In particular, they have a right to civil redress. The big question is compensation. Alas, Bangladesh has no modern tort statute on point, not one crafted for the idea of state liability. Civil actions are possible. But they rarely go far because of government procrastination and legal uncertainties.
The military cannot remain above the law
Immediately after the accident, the BAF announced an internal inquiry. In a rare and welcome move, the High Court of Bangladesh has demanded a public independent commission be established. That is a good start. The Armed Forces Act, 1953, Bangladesh’s military justice and disciplinary law, has no provision for civilian victims to seek any redress or compensation. Nor does it oblige transparency or public declaration of culpability when military actions are to blame for harm outside the defence establishment.
The time for ambiguity and cover-up is long gone. No institution, not even the armed forces, can be allowed to operate above the law. When the state and its agents fail to protect its own citizens, the judiciary should feel empowered and obliged to not only demand transparency and justice, but also the administrative and legislative reforms to prevent future recurrence.
Was this accident foreseeable?
Adding to the tragic irony is the fact that this disaster was, to some extent, foretold. F-7 BGI aircraft involved is a Chinese-made variant of the Soviet MiG-21. Nicknamed “Fishbed,” the MiG-21 is a notoriously poor performer when it comes to the safety of its crews and the public. During more than four decades of service in India, hundreds of MiG-21s were lost and crashed, prompting the Indian government to retire its fleet by 2025. Bangladesh continued flying a platform virtually identical to the Indian Fishbed over the heads of its citizens in its major cities, Dhaka, Chittagong, and Sylhet. Legal and moral culpability for the deaths and injuries this accident caused is already there.
Lessons beyond our borders
This decision to keep flying such a high-risk airframe was indefensible to begin with. Examples from elsewhere tragedies have happened before, and in countries other than Bangladesh. In 2008, a United States Marine Corps F/A-18 Super Hornet jet lost control and crashed into a San Diego neighborhood, killing four civilians. The US government, following a transparent public inquiry, accepted culpability and the family of the victims received $17.8 million in compensation. The Pentagon overhauled flight safety training for military jets over populous zones.
In 2023, a new MiG-21 crashed into a private home in Rajasthan state, India, killing several civilians. The Indian government accepted responsibility, announced a timeline for retiring the Russian-made fighters and also increased flight safety measures over civilian-populated areas. Public interest litigations were filed in court, demanding greater transparency and accountability.
For its part, Russia has taken the exact opposite approach. In 2022, a Russian Air Force Su-34 fighter jet crashed into a residential block in Yeysk, Russia, killing 16 people, several of them children. Victims were offered little compensation. The investigation was conducted behind closed doors, without transparency or public declaration of guilt. Bangladesh can choose which example to follow.
Urgent legal reforms
If the state is sincere in its condolences and desire to prevent future recurrence, these are the legal steps that can and should be taken without delay:
1. Codify state tort liability: A modern state liability and tort statute should be enacted without delay to allow victims of state negligence to take civil action against it.
2. Ban low altitude military flights over cities: Legal regulations should be put in place immediately to prohibit all military training exercises in residential and urban areas.
3. Modernize the Armed Forces Act: Bangladesh Armed Forces Act, 1953 should be amended to include all of the following -- civilian redress, public reporting and declaration of culpability, and independent oversight and commission of inquiries.
4. Mandate public inquiries: Independent inquiries should be automatically triggered when training exercises or operations by the armed forces result in death and injury to civilians.
5. Set up compensation tribunals: A fast-track compensation mechanism, in the form of a special tribunal, should be established to deliver justice and compensation to victims efficiently.
None of these demands are radical, extreme or unreasonable. It is the basic and minimum expectation of the rule of law from a state that places value on human life. There is no justice that will bring back the lives of the children of Milestone School. But the law can, at least, make sure that their deaths were not in vain.
Aqib Tahmid is a Lecturer in Law(On study leave) at Port City International University, Bangladesh. He is currently pursuing llm in international law at the University of Hull, UK.
