DHAKA: The government of Bangladesh, faced with social and media resistance, seems to have abstained from enacting a law to provide legal immunity to the World Bank and its sister organisations, at least for the time being. The left and liberal democratic parties, various civil society groups, particularly including some rights NGOs and a section of the media have been protesting against the pronounced government move to get the law enacted during the just prorogued session of national parliament. The session was prorogued on Tuesday, without passing the legislation.

The World Bank immunity issue arose when a disgruntled Bangladeshi employee of the World Bank initiated a lawsuit. An external affairs officer of the bank, Ismet Zerin Khan, was discharged on May 2, 2001. The first assistant judge’s court in Dhaka issued summons, asking the bank’s country director and human resources officer to appear before the court. But the World Bank filed an application for legal immunity with the senior assistant judge’s court. The courts subsequently turned down the plea, saying that the bank did not enjoy any such immunity according to the laws.

The bank then filed a revision petition and pleaded with the court to decide whether the suit is maintainable. The courts decided that the case was indeed maintainable in 2004. As the legal proceedings went on, the World Bank kept pressuring the government, especially the ministries of finance and law, to provide it with legal assistnace from the government for the lawsuit and immunity from legal proceedings.

Faced with the mounting pressure from the bank, the caretaker administration of 2001 and the subsequent BNP government referred the matter to the attorney general’s office. The attorneys general, Hassan Ariff, and his predecessor Mahmudul Islam, said that the officials of the lending agency enjoyed legal immunity as long as they acted in an official capacity. They however, pointed out that providing legal immunity to the World Bank would be illegal.

Earlier, late Syed Ishtiaq Ahmed gave a similar opinion in 2001 when he was adviser to the ministry of law, justice and parliamentary affairs of the interim government. The matter gained momentum after the BNP-led four-party alliance assumed office. The minister for finance and planning, M Saifur Rahman, and the minister for law, justice and parliamentary affairs, Moudud Ahmed, corresponded a number of times as the World Bank did not relent. When Moudud, concurred with the attorney general, that the World Bank did not have legal immunity, Saifur wrote to him on January 2002, requesting that the government ‘engage the state lawyers’ to fight for World Bank and also reminded Moudud of the bank’s veiled threat saying the relationship between the government and the World Bank would be strained.

Saifur said the World Bank wanted to sign an establishment agreement immediately. Moudud replied in February that, ‘there are legal bars in providing legal assistance to the World Bank.’

Moudud, in another letter on February 2002, informed Frederick Temple, the country president of the World Bank at that time, that ‘if the Bank desires to enjoy immunity as the Asian Development Bank does, the only option is to amend the Articles of Agreement and correspondingly our own law.’ The bank then began to pressure the government to amend the International Financial Organisational Order 1972, which quotes the charter verbatim from sections 2 to 9 of Article 7.

The 1972 order, as well as the IBRD charter, exempts bank officials from legal process ‘with respect to acts performed by them in their official capacity except when the bank waives this immunity’. According to quarters concerned it is only reasonable that the IBRD, initially established to help European countries in the wake of the Second World War, would remain accountable for its actions to those countries in which it operated. The Asian Development Bank, however, operates under a different charter. It was also created with a different purpose — to work in Asia, mostly former colonies. The ADB charter actually does allow itself legal immunity.

The relevant clause of the previous order reads, ‘No action shall be brought against the Bank, by any member, or by agency or instrumentality of a member, or by any entity of person directly or indirectly by any agency, or entity or person, and there shall be recourse to such special procedures for the settlement of controversies between the Bank and the Government or the agency or entity or person as the case may be.’

Contrary to the World Bank’s claims that the amendment would merely clarify its immunity from legal proceedings, experts and lawyers have pointed out that the claim is false. They maintain that the World Bank does not have legal immunity according to its own charter, which is quoted verbatim in the act of 1972.

If passed by the parliament, no one will have a right to sue the World Bank for any action or programme of the bank even though the party is aggrieved or the party’s rights have been violated. The World Bank will remain above the law even if its actions or programmes violate the right to life or personal liberty, both of which are guaranteed by the constitution. Such a provision clearly violates the fundamental rights of enjoying the protection of law guaranteed under Article 31 of the constitution.

It also violates Article 27 of the constitution that says, ‘All citizens are equal before law and are entitled to equal protection of law.’ Consistently pursued by the higher authorities and ignoring the fact that the bill would be unconstitutional, the cabinet on July 4, 2004 approved a draft bill providing immunity to the World Bank, seeking amendment to the existing International Financial Organisations Order of 1972. Although the bill was scheduled to moved for approval by the finance minister during the autumn session of the parliament in September 2004, it was deferred due to time constraint.

The bill, after being moved by finance minister Saifur Rahman, was subsequently sent to the parliamentary standing committee on the finance ministry for scrutiny. The committee concerned approved the bill on May 16, but the government eventually did not place the bill in the House for approval, presumably to avoid further protest from the civil society groups.