Equality before the law stands for application of the same law without discrimination to all persons similarly situated. This principle has been incorporated in the Article 27 of Bangladesh Constitution. Article 31 ensures that no action detrimental to the life, liberty, body, reputation or property of any citizen shall be taken except in accordance with the laws of Bangladesh.
The Artha Rin Adalat Ain 2003 is related to the loan recovery process. Section 19 of the Act deals with the process for a loan defaulter's application to set aside an ex-parte decree and Section 41 of the Act provides special provisions relating to filing of appeal and settlement. This Act under Section 19, gives right to the borrowers to redress grievances against judgment and decree, whether ex-parte or contested. And under Section 41, it grants a right of appeal to a party which has been aggrieved by order or decree passed by the Artha Rin Adalat.
The civil society has challenged the Sections 19 and 41 of the Act (Remedial Provisions) on the ground that the fundamental rights of a defaulter borrower under Articles 27 and 31 of the Constitution are compromised when Section 19 of the Act is applied attaching a condition to deposit 10 per cent of the decretal amount to apply for setting aside an ex-parte decree and Section 41 is applied, requiring to deposit in cash an amount equivalent to 50 per cent of the decretal amount for filing an appeal against the order or decree passed by Artha Rin Adalat. They argue that the remedial provisions have arbitrarily imposed onerous requirements for filing set-aside application and appeal by attaching a financial condition for availing the rights guaranteed under the Constitution. These remedial provisions, they point out, deal with the defaulter borrowers disproportionately and irrationally. These remedial provisions, they add, were enacted in the name of special laws in excess of the requirements to ensure government interest in quick realisation of banks' dues and have detrimental effect on business and property of the defaulter borrowers.
As such, it is in violation of the fundamental rights of the borrowers under Articles 27 and 31 of the Constitution and it also breaches the human rights notions of access to justice and right to fair trial.
These human rights principles require a solid legal framework consistent with the Constitution and international conventions to which Bangladesh is a party. The right to equal treatment before the courts is guaranteed under the Universal Declaration on Human Rights (UDHR). Moreover, the rule of law is a priority of the government of Bangladesh. Therefore, this matter should be scrutinised by the government with greater care and the judiciary may step in to uphold the international commitments of our government while applying these two sections.
However, the judiciary has dealt with the matter several times. For example, in Anisur Rahman and KM Ziaul Haque vs. Government of Bangladesh case, following an Artha Rin suit, the petitioner filed a writ petition asserting that Section 41 (1) (2) of the Act is unreasonable, oppressive and arbitrary as it requires deposit of 50 per cent of the decretal amount at the time of preferring an appeal. In this case, the court said that depositing 50 per cent of the decretal amount at the time of preferring an appeal does not violate any fundamental right guaranteed under the Constitution. Moreover, the Appellate Division in Zahirul Islam vs. National Bank Limited and others justified the condition of appeal through referring it as a mere condition of appeal in a regular suit, which cannot be equated with other laws. In Mosammat Nilufa Yasmin (Nila) vs. Artha Rin Adalat, Khulna, the court decreed that the defaulter borrower cannot challenge the legality of Section 19 of the Act through filing a writ petition for enforcement of their fundamental rights.
Therefore, the government should take up this matter in consultation with the stakeholders as to whether any reform of these two sections is required at all or not and the courts may look at this matter with a liberal approach.
The writer, a lawyer, is Research Assistant (Law),
Bangladesh Institute of Law and International Affairs (BILIA)