Introduction

Since inception of its financial advancement through industrial and semi- industrial entrepreneurship by using cheap labour force, Bangladesh has been paying its value at the cost of hundreds and thousands of lives employed in those sectors, specially, of workers. The unprecedented fire at Tazreen Fashions Ltd in November 2012 and the horrific collapse of Rana Plaza in April 2013 claimed more than a thousand lives and caused serious injuries to many others. It touched the heart of the people of each and every corner of the world raising demands for punishing the culprits behind such a heinous crime, known as corporate manslaughter. Subsequent to the incidents, several initiatives were taken to incorporate more comprehensive provisions on workplace safety. Yet, corporate manslaughter is back on the agenda following a massive fire at the Sazeeb group which is the latest industrial accident in a country with a track record of poor working conditions. A 2020 report by Bangladesh Institute on Labour Studies shows that 729 workers suffered from workplace death of which 384 were employed in the transport sector, 84 in construction sector and 67 in agriculture. The report also states that there were 433 instances of workplace injury. Although the numbers were lower than those of the previous year, the number of workplace deaths remained the highest in both 2019 and 2020. Thus, recurrence of safety failures resulting in death and fatal injury in the industrial sector indicate the impunity with which employers tend to evade workplace safety laws, while the toiling workmen continue to be deprived of their basic human rights, including ‘right to life’, in exchange of their labour.

Criminal liability of corporations

Corporate manslaughter was first defined in the case of Andrew v DPP which is an unintentional punishable homicide resulting from human acts or omissions. Here, the liability is imputed to the corporation owing to the attachment of human wrongful conduct to the accused body corporate. According to the basic principles of criminal law, criminal liability can be imputed only to someone who has a ‘body’ and ‘mind’ of its own. The two essential elements to hold a person liable for a crime is actus reus, i.e. the physical act which is committed, and mens rea, i.e. intention or knowledge with which the act is done. According to the Identification Principle, a company being a fictitious entity, is capable of forming its intentions through its agents running the company, and the guilty mind of the directors or employees will ultimately render the company guilty. The theory posits that an act of a person, who is part of the directing ‘mind and will’ of the company and thereby embodies the entity, can be attributed to the company for criminal liability.

Further, the general Criminally Negligent Manslaughter (CNM) principles equally apply to corporate manslaughter where companies can be prosecuted for breach of duty of care by negligent conduct.  Where a contractual relationship exists between the employees and their employers, contractual duty per se is a sufficient basis for criminal liability to arise from omission of the same. In addition to the common law duty, companies in Bangladesh like entities in other countries, have a statutory duty of care in relation to health and safety of workers imposed by Section 62 of the Bangladesh Labour Act 2006 (BLA 2006). If Sections 62, 150, 2(49), 312 and the preface are read together, it becomes obvious that Section 62 does impose duty of care on the company itself, and its managers including officers, and the duty is owed to the victims. Unfortunately, given the recurrence of such deadly events in Bangladesh, it can be said that the owner and the company were negligent in their conduct to take reasonable due care, thus committing corporate manslaughter.

 

 

 

Existing laws for workplace safety in Bangladesh

Workers’ welfare is guaranteed in the Constitution of the Peoples’ Republic of Bangladesh. Additionally, the government has already formulated the National Labour Policy of 2012 and National Occupational Health and Safety Policy, 2013. Furthermore, Bangladesh Labour Welfare Foundation (Amendment) Act, 2013 was enacted and Bangladesh Labour Welfare Foundation Rule, 2010 was introduced. The aim of the National Labour Policy of 2012 is to ensure an investment friendly atmosphere by creating a productive, exploitation free, decent, safe, and healthy workplace for active citizens and to establish workers’ rights and dignity of work. These legislations and policies are all in place to ensure the rights of workers in Bangladesh. Besides, in response to major industrial incidents in Bangladesh’s readymade garment (RMG) sector in 2012 and 2013, a National Tripartite Plan of Action on Fire Safety and Structural Integrity was developed in 2013.

The Bangladesh Labour Act 2006 is the primary law for the health and safety of workers in Bangladesh. The Act imposes duties and liabilities upon owners, directors, managers of the company and uses one term ‘employer’ to include all of them. To ensure workplace safety, the Act provides general obligation to the employers to provide basic safety measures for the workers which have been stated under sections 61-78. The act also ensures some special provisions regarding the health issue and hygiene as well as safety for the women employees who are prohibited to work in dangerous machinery. Procedures are also laid down for the provision of compensation in case of workplace deaths or injuries which states that in case of death, the amount of compensation payable shall be Tk 1,00,000 and in case of permanent disablement, the amount shall be Tk 1,25,000. Alongside the BLA 2006, the law relating to the safety of construction workers is set out in the Bangladesh National Building Code 2006 which requires “the owner of the property” under construction to comply with the obligations in the Code. The national code also provides guidance for service related facilities like electrical, mechanical, sanitary and other services.

 

Inadequacy of existing laws for effective remedy in Bangladesh

Although Bangladesh belongs to the common law family, the Penal Code 1860 governs the area of manslaughter, and the legal system of the country in general does not substantially embrace the principles of common law beyond the enunciation of statutory provisions. As a result, the concept of common law liability or the common law negligent manslaughter is largely absent in practice. Therefore, their liability has to be sought under our criminal justice system which focuses on the Penal Code- 1860, the Code of Criminal Procedure-1898 and the Evidence Act-1872. The offences defined in the Penal Code do not describe the ‘corporate manslaughter’ and provisions relating to homicide, hurt and negligence are mainly based on direct physical overt act. The penal provisions regarding unlawful homicide embodied in this legislation lack clarity, which is considered to be an obstacle to their effective enforcement. In the absence of any record of conviction of corporate manslaughter in Bangladesh, the very first concern is whether companies are included in the definition of ‘culpable homicide” as stated in Section 299 of Penal Code,1860.

Evidently, comprehensive duties concerning safety of workers are laid down in the BLA 2006, but it does not explicitly clarify who owes those duties and to whom. . The breach of the safety duty is not per se an offense under the BLA 2006, therefore it is difficult to accuse the company itself of a breach of duty. The code is based on the preventive theory of jurisprudence, and the theory is not applicable when a person is already dead from a fire. Further, the amounts of fines raise questions whether such a small fine can truly compensate a single victim, let alone the victims of numerous deaths or injuries, or whether it bears any deterrent value, general or specific deterrence regardless. Although, it is appreciable that BLA2006 allows the application of the general criminal law providing higher punishment for the same offense, yet the drawbacks of the general criminal law render the BLA 2006 as the sole law to deal with workplace safety in Bangladesh until the former is amended. Therefore, penalties need to be increased in order to reap the benefit of the BLA 2006 by punishing offenses adequately and deterring potential violators effectively. Therefore, due to the loopholes in our existing laws, ensuring an exemplary punishment for a person liable for corporate manslaughter is almost next to impossible. The 2014 Report of the Human Rights Watch finds that the criminal law in Bangladesh is deficient in many respects. Therefore, it recommends enactment of separate legislation addressing drawbacks of the existing law in order to facilitate conviction of corporate offenders in the country.

Conclusion:

The current Covid-19 crisis has showcased the need to develop comprehensive social protection systems covering both formal and informal sectors. These types of investments require new thinking on how to address shocks to individuals, businesses and the economy as a whole. The devastations caused by companies have mounted to an extent in the country that effective measures have to be taken to combat these corporate killings without further delay Although Bangladesh covers most of the provisions of international standards for labour rights, the tragic incidents discussed blatantly represents the major flaws of the prevailing legal safeguarding system under the labour laws of Bangladesh. The workplace safety in the country will not improve unless the perpetrators including the errant companies are adequately punished. This punishment- -warrants useful workplace health and safety laws which should succinctly define the offenses and offenders, and prescribe stringent punishments that work as specific and general deterrence. Finally, Bangladesh should immediately embark on enacting corporate manslaughter legislation having due regard to the genuine concerns of the world community, the need for the prevention of further human catastrophe, and the responsibility of stimulating the national economy.