Can a foreigner sue in a Bangladeshi Court?

Bangladesh Bank announced last year that foreign employees would now be able to remit up to 80%  of their net earnings to their home country after tax any time of the year. The announcement came as a moment of joy for many and since then, there has been a significant rise in foreign nationals wanting to work in Bangladesh. 

To this day, there are at least 2.5 lakh foreigners working in our country having both valid and invalid work permits, according to Transparency International Bangladesh. Their presence is significant in the RMG sector, NGOs and in twenty other trades all across the country. 

Being a resident of a foreign country, one can end up in any sort of legal trouble at any given moment. Therefore, they ought to be aware of their legal obligations and rights and to what extent they can exercise their right to sue or be sued in a Bangladeshi court.

The Foreigners Act of 1946 defines "foreigner" to be any person who is not a citizen of Bangladesh. The Constitution of the People's Republic of Bangladesh sees no difference between a foreigner and a citizen when it comes to certain fundamental rights. 

The framers of the constitution of Bangladesh while framing the fundamental rights, took caution as to what fundamental rights have to be applied to foreigners and what rights have to be specifically reserved for the citizens of Bangladesh. Each of the sixteen fundamental rights consists of either "any citizen" or "any person", so that the rights can be easily identifiable.

Article 31 of the Constitution states that "To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law." 

The other fundamental rights available for foreigners are Article 32 (protection of right to life and personal liberty), Article 33 (safeguards as to arrest and detention) and Article 35 (protection in respect of trial and punishment).

The fundamental rights guaranteed by our Constitution can be enforced by Article 44 of the Constitution. 

Article 44 states the right to appear before the High Court Division of the Supreme Court of Bangladesh under its Writ Jurisdiction to seek redress if any of the fundamental rights are violated. 

And since Articles 31, 32, 33 and 35 are fundamental rights, a foreigner may have their grievance sorted in the highest court of law if they suffered anything in violation of the said Articles. Additionally, Article 26 of our Constitution says any law that is inconsistent with any of the fundamental rights shall become void to the extent of such inconsistency. 

Hence, if any time for example, the government makes a new law that appears to be detrimental to a foreigner on the said grounds, it can be challenged under Article 26 making it void.

The Code of Civil Procedure 1908 specifically lays down when a foreigner can sue if their stay is legal in Bangladesh. Under this Act, any foreigner can file a case against anybody in a court of competent jurisdiction with prior permission of the government.

Photo: Reuters

Section 83(1) of the Code entails "Alien enemies residing in Bangladesh with the permission of the government, and alien friends, may sue in the Courts in Bangladesh, as if they were citizens of Bangladesh".  

Subsection (2) of the said section states that no alien enemy residing in Bangladesh without such permission, or residing in a foreign country, shall sue in any of such Courts. 

The section explains "aliens" to be "Every person residing in a foreign country the government of which is at war with, or engaged in military operations against, Bangladesh, and carrying on business in that country without a licence in that behalf under the hand of a Secretary to the government shall, for the purpose of sub-section (2), be deemed to be an alien enemy residing in a foreign country."

Although in Code of Criminal Procedure, there is nothing particular that bars a foreigner from filing a criminal case. Anyone regardless of their nationality can file a criminal complaint or file an FIR against a Bangladeshi in the police station for a criminal offence committed within the territorial limits of Bangladesh. 

A criminal complaint or a FIR can also be filed against a foreigner who has committed the crime within the territorial jurisdiction of Bangladesh. The Foreigners Act of 1946 specifically prescribes the rules and regulations that a foreign national has to abide by while residing in Bangladesh. 

Section 3 of the Act empowers the government to make orders for prohibiting, regulating or restricting the entry or departure of foreigners in Bangladesh. Section 2(g) of the Act states that "In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner shall be arrested and, in the interest of the security of Bangladesh, detained or confined." 

Also, under Section 15 of the Act, "No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act." 

The Registration of Foreigners Act 1939 empowers the government to make rules through gazette notification with respect to foreigners for any of the purposes laid down in Section 3 of the Act. 

The Act states if a foreigner fails to comply with any of the rules, they shall be punished with an imprisonment for a term which may extend to one year or with fine which may extend to one thousand taka or with both. Both The 1946 Act and the 1939 are currently operative to regulate the activities of foreign nationals residing in Bangladesh.

Residing in a foreign country is always challenging. If a foreigner is working with a Bangladeshi business entity, only those grievances involving that entity would be covered. But knowing their rights and obligations, they may seek redress on a personal capacity before a court of law. 

A foreigner can but be subject to the law which expressly bars the foreigner to file cases against a Bangladeshi under Bangladeshi laws. If their rights are curtailed in any way, any foreign national, given that they can initiate legal proceedings against any other person within the territory of Bangladesh. 

Barrister Aiman R Khan is an Associate Advocate at Rahman Law Associates & Company. Email: advarklaw@gmail.com

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.