Industrial Killing in Bangladesh: State Policies, Common-law Nexus, and International Obligations

Abstract

The legal system of Bangladesh does not directly acknowledge industrial killing in the form of penal offenses and thus is not equipped with a solid legal avenue to ensure justice for the victims.

This article attempts to discuss industrial killing in Bangladesh through four particular incidents, the current domestic framework for preventing industrial killings, and common law countries’ legislations as best practices. Also, it reminds the state obligation under the provisions of international law.

This qualitative study uses applied techniques from the professional constituency that deal with law reform research (socio-legal research/ “law in context”) from a labor rights lens.

This study finds that recurring events of industrial killings come with a manifold threat to labor rights. The most immediate risk it poses is that it clashes with the workers’ right to life. Therefore, the recommendation is highly focused on the obligation under international law. It also focuses on legislative changes in punishing the offenders involved in industrial killings as part of its progressive realization of the duty to respect, protect and fulfill human rights obligations.

Introduction

“Industrial killing” or workplace death due to employers’ gross negligence generally calls for retributive punishment (Gikonyo, 2020). The theory of retributive punishment is when an individual commits a wrongful act that justifies punishment; in that case, punishment would be proportional to the wrong committed (Spencer, 2022). But in many circumstances, industrial killing is termed an “industrial accident,” for which compensatory justice usually pitches in (Taqbir Huda, Jul 14, 2021). Arguably, compensatory justice for that type of heinous killing could not suffice or be proportionate to the wrong committed. Therefore, sometimes, criminal punishments and compensation are awarded to mitigate the irreplaceable loss suffered by the deceased’s family (Abdul Razak, 2018). The debate can continue as to which mode of criminal liability tends to offer better ‘justice’ to the victims and their families. But the central point is in the absence of strict liability; perpetrators may repeat the same offense with impunity.

In the industrial sector, Bangladesh has witnessed some of the most brutal deaths in its history last decade. These deaths claimed thousands of lives, and one should simply know that these deaths are the result of a system that is coupled with weak legislation, dominant industrial positions, and a lack of effective enforcement systems. The Safety and Rights Society (2020) shows that the approximate number of accidents that occurred in 2020 was 373, which caused 433 deaths, while most of the time workplaces were closed due to the COVID-19 pandemic. The same report demonstrates that the scenario worsened in 2019 and 2018; workplace deaths were 572 and 593, respectively.

Breadwinners come to work and die due to the employers’ gross breach of duty of care, but no one cares, deceased’s family blames their fate, calling industrial killing an incident, and thus the cycle continues. The blame definitely goes to the country’s existing strict and archaic framework of criminal legislation that becomes less victim-friendly when it comes to the point of proving criminal elements of the person so liable. Besides, political unwillingness and lack of a strict implementation mechanism under the labor law cannot ignore its liability (Syed, 2020).

The question of liability must take place since these are preventable deaths. What raises the most vital question in this regard is that if the so-called accidents keep happening one after another, where do we hold the most fundamental right (right to life) of all rights of human beings (workers)? Taking no precautions, blindly accommodating hazardous and life-threatening work environments, and leaving workers to die alone in their workplaces while exploiting their labor to make fortunes by the privileged owners in absence of a proper legal framework must be condemned legally by shifting the term from accident to killing (or murder). As of now, the prevailing context offers impunity for such inclusive negligence through loopholes and inadequacy existing in the legal system, which resulted in the following four catastrophic industrial killings in Bangladesh.

It is noted that many industrial accidents occurred during the timeline of 2012–2022. But these four unforgettable industrial catastrophes are in this decade. These events, however, are not given any superior consideration that dislodges the other cases that occurred at the same time in any aspect.

Name of the Industrial Killing Events	Brief Facts
Tazreen Fashion Garments (Tazreen) Date of occurrence: 24 November 2012	Tazreen Fashion was a nine-story garment factory that was destroyed by a fire that killed 112 garment workers and injured about 200 more (Roy, 2022; Vanpeperstraete, 2021). The initial reason as noted by the fire service officials was short circuit began on the ground floor (Ullah, 2022). Though the tragedy was initially labeled as an accident, there was ample evidence that suggested the existence of ‘gross negligence’ from the employer’s end (Rahim et al., 2022; Solaiman, 2018; Solaiman, 2013). Because the workers were initially locked and trapped inside the building when the fire broke out and windows on the lower floors were barred which left the windows on the upper floor the only escape routes for the workers (Ullah, 2022; Shahab, 2021; Solaiman, 2013). Secondly, the short circuit could have been easily prevented if the electricity was cut off timely (Ullah, 2022). As such place was prone to fire, the installation of a sprinkler system could have prevented the greater damage palpably. Knowing that large mounds of fabric and yarn stored illegally on the ground floor are easily prone to fire and still trapping the workers to die proves negligence (Fakhoury, 2019).
Rana Plaza Disaster Date of occurrence: 24 April 2013	Five months after the Tazreen tragedy took place, the collapse of the Rana Plaza factory building shocked the entire nation. The worst-ever industrial incident is still remembered due to its horrific experience and loss. The eight-story factory accommodated five garment factories. On 23 April 2013, workers discovered structural cracks in the building and informed the owner (Wagner, 2021). Shops and banks located on the lower floors of the building were immediately closed (Ullah, 2022) but garment factory owners ignored the possibility of great danger. Putting the risk aside, workers were ordered to continue their work the following day (Syed, 2020a). On the date of occurrence, the building collapsed. This killed 11,37 people and injured more than 2500 (Mansoor et al., 2021; Syed, 2020a). The quest for justice is still on.
Hashem Foods Factory Fire Date of occurrence: 09 July 2021	The six-story food processing factory situated outside Dhaka produced food and drink which belonged to Sajeeb Corporation (Chatterjee, July 15, 2021). On the date of the incident, a fire broke out at the factory. No smoke detectors, fire alarms, or emergency exits were found in the building. As a result, at least 52 workers died (BBC, July 9, 2021) and another 20 were injured (The Daily Star, July 9, 2021). The owners were arrested later on and charged with murder (bdnews24.com, July 10, 2021).
BM Container Depot Explosion Date of occurrence: 4 June 2022	The depot is situated at Sitakunda in Chittagong. At the midnight, the fire broke out triggering a huge blast and inviting several container explosions one after another (ALJAZEERA, June 5, 2022). This took 49 lives and over 450 injured which once again revealed the country’s poor track on safety compliance. It was believed that the chemical compound name hydrogen peroxide caused the deadly explosion (Prothom Alo, June 6, 2022). Shockingly, the depot authority did not inform the fire officials about the storage of chemicals that are prone to fire or explosion (DAWN, June 6, 2022).

Research Statement

As a research statement, this study argues that Bangladesh has been an active member of the United Nations (UN) since its inception. She has ratified different numbers of international instruments of the UN to protect labor rights. As a result, she must enact and practices national labor policies in line with the international labor standard to protect workers from industrial killing.

In accordance with the research statement, this study attempts to answer the following questions:

• I.Do the present State policies and their practices suffice to tackle the industrial killings?
• II.What policies have been adopted in selected common-law countries to tackle such types of killings?
• III.What are the State’s obligations to stop industrial killing under international law and how can we prevent these industrial killings in Bangladesh?

State Policies Against Industrial Killing

There is no separate legislation to deal with industrial killing in Bangladesh. But Bangladesh Labor Act 2006 (BLA2006) is the primary law for the labor industry that enunciates several provisions for ensuring workers’ safety and security in the workplace. For example, chapter six deals with safety provisions for workers. Having a fire in buildings or unwanted collapsing is a common mode of industrial accidents in Bangladesh. Keeping this issue in mind, specific provisions have been enacted that when an inspector thinks that a building, part of a building, road, machinery, plant, or internal electrical system of a building is dangerous to human life or safety, then he may order to the employer to take the necessary measures within a specified time [s. 61 (1), BLA2006]. When an inspector sees an impending danger to human life or safety, he may compel the employer to stop using it until it’s repaired or corrected [s. 61 (2), BLA2006].

The amendment of BLA has enlisted several provisions in 2013 as precautions for fire safety. For example, at least one alternative staircase for a safe exit connecting with every floor, the requisite number of firefighting equipment on every floor as prescribed by Bangladesh Labor Rules, 2015 [s. 61 (1), BLA2006], doors shall not be locked or fastened while work is going on [s. 62 (3) (3a), BLA2006], an audible whistle shall be provided to alarm every worker employed therein in case of fire or danger [s. 62 (5), BLA2006], a free passage-way for easy exit during a fire [s. 62 (6), BLA2006] among others. Besides, workers should be familiar with the means of escape in case of fire and are adequately trained in the routine work [s. 62 (7), BLA2006]. And for doing this at least once every six months, mock firefighting shall be arranged by the employer where fifty or more workers are employed [s. 62 (8), BLA2006]. Further, when a worker finds that a structure or piece of machinery utilized by workers is in a dangerous condition, he must notify his employer in writing [s. 86 (1), BLA2006]. If, after receiving such information, the employer fails to take suitable steps within three days and a worker is harmed due to the usage of such building or machinery, he shall pay double the compensation payable for such injury [s. 86 (2), BLA2006].

The BLA2006 allows for criminal prosecution for contravention of law with dangerous consequences like serious bodily injury or loss of life. But BLA2006 does not have homicide penalty provisions to deal with serious bodily injury or loss of life. Instead, it imposes a much lower penalty than culpable homicide. For example, if a person violates any provision of this Act or any rules or regulations that causes death, he may be penalized with.

1. imprisonment for up to four years or a fine of up to Tk.1 100,000 equivalents to $ 1053 or both [s. 309 (1)(a), BLA2006];

2. if the violation causes serious bodily injury, up to two years in prison or a fine of Tk. 10,000 equivalents to $ 105, or both [s. 309 (1)(b), BLA2006];

3. imprisonment for up to six months or a fine of up to Tk 2,000 equivalents to $ 21 or both, if the violation causes injury or danger to a worker or other person in an establishment [s. 309 (1)(c), BLA2006].

It is to be noted that clauses (a) and (b) will apply only to the workers, not to other persons. But clause (c) will also be included for the other persons.

In the absence of severe penalty under BLA2006 [s. 309 (3), BLA2006], it permits the application of the Penal Code 1860 (PC1860) for any contravention that causes serious injury or death, which is the foremost criminal legislation in Bangladesh. But the shattering truth is that the present form of general criminal law is unable to punish such serious injuries and deaths. Instead, the penalty for workplace death remains elusive under the PC1860 of Bangladesh because of the following reasons:

PC1860 defines ‘person’ “as any Company or Association, or body of persons, whether incorporated or not (s. 11, PC1860). This definition is confusing as it does not disclose whether the such definition is equally applicable in case of incidents in determining what we call industrial killing or corporate manslaughter as it is popularly understood in common law countries. Further, the PC1860 reads as-

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offense of culpable homicide (s. 299, PC1860).

.

It is unclear whether the expression ‘whoever’ includes corporate bodies or not. Even if it does, the point of intentions of a corporate body would be next to impossible to prove since it does not have any solid human figure or intellect to participate in a witness examination. As a result, the recent cases of industrial killings in Bangladesh are either hovering around the court proceedings on different charges or put to a halt with no trace.

It is also to be noted that the BLA2006 has no corporate penalty provision. Instead, it allows penalties for individuals for violation of any provision mentioned in BLA2006. The BLA2006 said that,

“Where an offense punishable under this Act or any rules, regulations, or schemes is committed by a company or any other body corporate or a firm, every director, partner, manager, secretary, or any other officer or agent thereof, who is actively involved in the conduct of the business thereof shall be deemed to have committed that offense unless he proves that the offense was committed without his knowledge or consent or that he exercised all due diligence to prevent the commission of the offense (s. 312, BLA2006).”

But, in fact, modern corporate decision-making is frequently the result of corporate culture, rules, and processes rather than individual choices (Ricketts & Heidi, 2009). In this context, punishing the individual concerned is becoming tough, let alone punishing the corporate bodies. Thus, justice is a far cry.

Besides, a mere directory named ‘Occupational Safety and Health policy Bangladesh 2013’ has been enacted by the Bangladeshi government that lacks the core commitment to ensuring occupational health and safety. Few powerless bodies like safety committees, participation committees, and health centers were introduced but the periphery of their work was made subject to the directions of the worker’s union.

Further, the Fire Safety Act 2003 (FSA2003) requires a person or group to obtain a license from the Director-General of the Fire Service and Civil Defense Department prior to using a building or establishment as a warehouse of the workshop (s. 30, FSA2003). Such building’s elevator shafts and vent shafts must be of at least 4-hour fire resistance as per the Bangladesh National Building Code 2006 (rule 2.11.5, BNBC2006). In fact, obtaining a license is mandatory before building any multi-storied building or commercial space. The such license gives a certificate stating the establishment’s inclusion of fire prevention safety measures (s. 7, FSA2003). The Bangladesh National Building Code 2006 necessitates separate boilers, heating plants, and electrical rooms of hot water supply boilers from the rest of the occupancy in order to prevent any hazardous event. Such sections must be constructed with noncombustible materials (rule 2.11.7, BNBC2006). This code has set the minimum ceiling heights to be 3.5 m for non-air-conditioned and 3.0 m for air-conditioned buildings (rule 1.12.2, BNBC2006), where a minimum height of 2.0 m is set as the width of staircases and 0.9 m in case of handrails (rule 1.12.5, BNBC2006). The exterior walls of the establishments must be of fire resistance for at least 2–3 hours (rule 2.4.1, BNBC2006).

Furthermore, the Ship Breaking and Ship Recycling Rules, 2011 (SBSRR2011) require minimum safety distance in case of storing petroleum or combustible materials in the ship dismantling area or in the yard (rule 17.7, SBSRR2011).

Also, the PC1860 imposes criminal liability on the person who makes an atmosphere obnoxious to health (s. 278, PC1860) or acted negligently with respect to substances that are poisonous, combustible, or explosive (ss. 284–288, PC1860). Moreover, the Factory Rule 1979 (FR1979) sets another safety measure that requires every factory to ensure its electric supply lines and apparatus are of proper size, measure, and sufficient strength (rule 41, FR1979). Any process or work that possesses any chance of causing risk of bodily injury must not be carried out (rule 42, FR1979).

Though there are several legislative provisions in regard to building and fire safety in the workplace, there is no political will to enforce the law. Industrial killing is daily news in the setting of Bangladesh, but the victims are unwilling to file lawsuits. Mainly because of judicial biases, judicial backlog due to excessive workload, and judicial bureaucracy generate distrust of the litigation process of industrial killing in Bangladesh (Syed, 2020). Sometimes judges utilize employers’ political influence for their financial benefit and professional advancement, which erodes public confidence in the judiciary (Syed, 2020). Therefore, employees are defenseless and reluctant to prosecute their bosses. The absence of harsh punitive provisions in current labor and penal legislation against body corporate as well as companies is another aspect of unwillingness to file lawsuits. In addition, the fire and building safety provisions under several laws are not comprehensive due to a lack of inspection, implementation mechanisms, and legislative technical or mechanical deficiencies (Syed, 2020).

So, in response to the first research question, it can arguably be demonstrated that the current labor policies do not suffice to tackle industrial killing. Though these policies have some deficiencies, they could have tackled industrial killing to some extent. But these policies have yet to be practiced to the fullest. Because, due to deficient policies, perpetrators can come out of their liabilities. Thus, they are not obedient to the law.

As Bangladesh belongs to a common-law family, this finding creates room to discuss how selected common-law countries tackle industrial killing.

Nexus Between Industrial Killing and Selected Common-law Countries’ Initiatives

A common perception is that company is an artificial person, it has no hand, brain, or mind to carry out its functions. All the actions are carried out by a natural person in charge of the company. As a result, the company cannot be held criminally liable for the actions of others committed by a natural person while working for the company. Alternatively, the ‘doctrine of ultra vires’ inhibited the expansion of corporate criminal liability on the ground the corporation is run by human labor and does not warrant anything beyond its capacity (Turpin, 1970). In this context, it cannot be held liable for an act that is done solely by the persons running the body.

But this perception is wrong while industrial killing is a common concern around the world. Therefore, company’s liability for manslaughter resulting from workplace accidents has garnered great public concern for many years (Clarkson, 1996). Perhaps Salomon v Salomon & Co (1897) is the first legal decision that a company is a legal person separate from shareholders. Consequently, prosecutions are rational against companies for industrial killing. Further, the doctrine of ultra vires contention was rejected in Citizens Life Assurance Company vs. Brown (1904) where it was held that corporations are capable of being liable for acts committed by their employees in the course of employment. This was later on expounded to be a corporate criminal liability [Harker vs. Britannic Assurance Co. Ltd (1928)]. Initially, the company’s criminal liability was limited to crimes of nonfeasance (the failure to satisfy a duty required by law) [Case of Langhforth Bridge (KB 1635)]. Later on, the liability was extended to misfeasance (the improper performance of a legal act) (Nanda, 2010). But the main difficulty faced by the court was finding ‘intent’ since it is one of the prerequisites of proving an act to be a crime [State vs. First National Bank (1872)].

While rejecting corporate bodies as fiction in the case of determining liability, the court extended the civil law doctrine of vicarious liability to criminal cases (Pieth, & Radha, 2011). British court further developed the identification doctrine to link the corporation to a human body as the state of mind of the managers is the state of the corporation [HL Boulton Co. Ltd vs. J Graham and Sons Ltd (1956)]. But it makes it hard for the law to find a real person who can be seen as the company’s controlling mind and who can be seen as “artificial legal personality.” The main problem with putting a company on the hook for a crime is figuring out and proving the intent of the person who is said to be speaking for the company. Though in Meridian Global Funds Management Asia Ltd vs. The Securities Commission (1995), Lord Hoffmann held that the doctrine of identification is based on a general rule and a specific rule of attribution, which can be found by looking at the memorandum and articles of association; it is tough to determine by looking into the specific memorandum or articles under which the company was charged. Because, modern company decision-making is frequently the result of company culture, rules, and processes rather than individual choices, memorandum, or articles of a company (Ricketts, & Heidi, 2009). Thus, the identification doctrine under the common law theory is ambiguous and fails to provide justice to the victims. For example, in March 1987, P&O was prosecuted for corporate manslaughter following the sinking of the Herald of Free Enterprise in Zeebrugge Harbour [R vs. P&O Ferries (1991)]. Despite extensive evidence of substandard health and safety management, the prosecution was unable to identify a person within P&O who was guilty of gross negligence manslaughter and was senior enough to be considered the company’s “directing mind.“ Therefore, the prosecution failed because the necessary mens rea could not be imputed to the corporation. In contrast, all successful cases for corporate manslaughter have been made against small corporations [R vs. Kite (1996)].

This kind of substantial failure may be the reason for enacting the Corporate Manslaughter and Corporate Homicide Act, (CMCHA2007) to fill the gap. In reaction to a number of large-scale disasters in the 1990s, CMCHA went into force in 2008 in the UK (CMCHA2007). The corporate offense under CMCHA2007 is explicit legislation designed with the corporate person in mind, which “allows an organization’s liability to be assessed on a wider basis, providing a more effective means of accountability for very serious management failings across the organization [emphasis added] [Ministry of Justice, (nd)].’ This Act stipulates two specific requirements for corporate homicide. First, the offense must have resulted in the death of a person; second, the organization’s applicable duty of care to the deceased must have been grossly breached. A ‘gross’ breach of duty occurs when the conduct alleged to constitute a breach of duty goes considerably below what can be reasonably expected of the organization under the circumstances [s.1(4)(b), CMCHA2007]. This Act provides a detailed discussion of the “relevant duty of care” (s. 2, CMCHA2007). In the event that a breach of duty of care ends in death, the penalty is a fine with no provision for the jail [s.1(6), CMCHA2007]. In addition to fines, the court has the right to issue a “remedial order” directing the convicted organization to do certain activities, such as addressing the relevant breach, any concerns that emerged as a result of the breach, and any health and safety deficiencies inside the organization (s. 9, CMCHA2007). And a violation of such an order is a separate offense that may result in extra sanctions [s. 9(5), CMCHA2007]. The CMCHA2007 also authorizes the court to issue a “publicity order” requiring the convict to make public the fact of conviction, the facts of the offense committed, the amount of the fine, etc. in a prescribed manner (s. 10, CMCHA2007). Noncompliance with such directions will result in a new offense punishable by a fine (s. 10, CMCHA2007).

The CMCHA2007 eliminates the common law offense of homicide by gross negligence for companies and other organizations to which the CMCHA2007 applies (s. 20, CMCHA2007). It simply indicates that no people, regardless of their position within the offending company, can be sued under the CMCHA2007 (s. 18, CMCHA2007). However, the UK law commission has lately proposed increasing criminal liability to individuals when corporate criminality is attributable to their express participation, connivance, or negligence [Law Commission, (2022, June 10].

In Australia, the Crimes (Industrial Manslaughter) Amendment Act [C(IM)AA2003], amended the federal legislation (the Crimes Act 1900) that made corporate manslaughter liability more visible and practical. In addition to that, all provinces of Australia have separate industrial manslaughter legislation except Tasmania and Western Australia (Table 1). However, Western Australia is going to introduce new industrial manslaughter legislation expected to come into effect in 2022. A person conducting a business or undertaking (PCBU) or an officer of a PCBU commits industrial manslaughter if they participate in behavior that breaches a health and safety responsibility and results in the death of another person. The PCBU or officer that caused the death must have been reckless or negligent.

Table 1

Province/Area	Forced	Maximum Jail for Individuals	Maximum Compensation for Company
Australian Capital Territory (ACT)a	1 March 2004	20 years	$16.5 million
Queensland	23 October 2017	20 years	$10 million
Northern Territory	1 February 2020	Life imprisonment	$10.2 million
New South Wales	November 2021	25 years	$10,295,000
Victoria	1 July 2020.	25 years	$18.17 million
Western Australia	Expected to come into effect in 2022	20 years and fines of $5 million	$10 million
South Australia	Bill passed the Legislative Council in November 2021b	-	-
Tasmania	-	-	-

Source: Authors (collected from different sources)

^aAustralian Capital Territory (ACT) legislative amendments were introduced in August 2021, aligning the crime with other work safety offenses.

^bBut Bill’s second reading was put on hold. No new information has come out about whether or not the bill will be brought up again for debate.

Canada introduced Bill C-45, in reaction to the Westray Mine disaster that occurred in May 1992, causing the death of 26 miners in Plymouth, N.S. The Westray bill, also known as Bill C-45, was a legislative amendment to the Canadian Criminal Code that became law on March 31, 2004 (Macpherson, 2004). The 2003-introduced bill established new legal obligations for occupational health and safety and set severe penalties for infractions that result in injury or death [Library of Parliament, (nd)].

Bill C-45 only deals with the criminal responsibility of the organization. It doesn’t change the current law about the directors, officers, and employees’ personal liability. Directors and officers are responsible for any crimes they commit on their own, just like everyone else.

Thus, the rules impose additional criminal obligations and responsibilities on both individuals and entities (which are defined to include corporations). Individuals and organizations can now be found guilty of criminal negligence for failing to perform a duty in a willful or reckless disregard for the lives or safety of others.

Two steps are required to convict an organization of criminal negligence in the context of workplace safety (Macpherson, 2004). First, the Crown must establish beyond a reasonable doubt that the actions of a single representative (employee, partner, contractor, or agent of the organization) violated the Criminal Code duty in a willful or reckless manner, resulting in serious injury or death. Second, after establishing a breach of duty, the Crown must demonstrate that a senior officer with operational or executive authority, or, as the drafters put it, a person with “real clout” who is responsible for the portion of the organization involved in the breach either failed to act or prevented themselves from acquiring the knowledge to act. The Crown must demonstrate a significant divergence from the reasonable expectations of a senior officer with responsibilities to protect workers and the public.

The new duty found in Sect. 217.1 of the Criminal Code requires that: “Everyone who undertakes, or has the authority to direct how another person does work or performs a task, is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task (c C-46, Criminal Code1985)”. “Everyone” encompasses individuals, organizations broadly construed, and companies.

The Criminal Code mandates that reasonable efforts be taken to prevent physical harm to any person, including members of the public or volunteers who may attend the workplace or be affected by workplace activities.

The Criminal Code further states that “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons (s. 219, Criminal Code1985).”

In addition, a breach of duty must constitute a “marked” and substantial divergence from the standard of a reasonably prudent person under the circumstances. There must be more than an accidental failure to comply with occupational health and safety or the Criminal Code norm. There must be evidence of blatant disdain or apathy towards the obligation.

Under Bill C-45, the Criminal Code provisions have possible liabilities. The highest penalty for criminal carelessness resulting in death is life in prison, whereas the maximum penalty for criminal negligence resulting in bodily harm is ten years in jail.

When the Crown pursues by summary conviction (the least serious method of proceeding), the maximum fine for organizations, including corporations, is $100,000. There is no maximum fine for a corporation or organization when the Crown proceeds by indictment (the most serious method of proceeding). In addition to monetary penalties, organizations may be placed on probation, and the terms of a probationary order may include the following: requiring the organization to make restitution, financial or otherwise, relating to the offense; requiring the organization to report to the court or the public on the implementation of remedial steps; requiring the appointment of a senior officer to be responsible for implementing remedial procedures and requiring the organization to comply with any other terms of the probationary order.

This part of the discussion shows that the selected common-law countries have taken various initiatives to tackle industrial killing. While large industrial accidents have worsened in developing countries, the situation has improved in some wealthy common-law countries (Mihailidou, Antoniadis, & Assael, 2012). The improvements in these countries could be attributable to the changes in the law, which now effectively hold firms criminally liable for severe workplace accidents, which may be a lesson for developing countries like Bangladesh.

State Obligation Under the International Policy to Tackle Industrial Killing

In a plain sense, state obligation can be defined as the fulfillment of commitment (either positive or negative) by the states with respect to their consent to a particular international instrument (Lukashuk, 1989). While the debate is still going on whether international law construes as soft law or not, ‘state obligation’ particularly places a barrier on the ‘soft law’ debate (Guzman, & Timothy, 2010). The Vienna Convention on the Law of the Treaties (VCLT,1969) says “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith (art. 26, VCLT1969).” And when a state becomes a party to an instrument that is of international nature, its government expressly takes the obligation on itself to perform the said obligation. The term ‘obligation’ contains three key elements as expounded by the Office of the UN High Commissioner for Human Rights, namely, (i) the obligation to respect; (ii) the obligation to protect; and (iii) the obligation to fulfill [Human Rights Advocacy and the History of International Human Rights Standards, (nd)]. Obligation to respect denotes that the state must refrain from interfering with or curtailing the enjoyment of human rights while the obligation to protect imposes a duty on the state to protect individuals and groups against human rights abuses. The third element imposes a duty to take positive action to facilitate the enjoyment of basic human rights.

Keeping this in mind, it would be pertinent to look into the case of Bangladesh with regard to its stance on international law. Therefore, this section explores Bangladesh’s commitments under different major international instruments and draws an analogy that to what extent it is under a legal obligation to make a safe workplace in order to prevent industrial killings.

The expression ‘major international instruments’ is used within the strict sense of this paper that matches the subject of interest. A human being is definitely entitled to human rights simply because of his being one. For instance, a person fleeing to another country with fear of persecution may enjoy his rights under the Refugee Convention of 1951. In the same way, industrial workers shall have the right to life that goes without debate. It is that specific rights for a specific group of people that reserve the concentration in this paper. For the said purpose, this part explores Bangladesh’s ratification status with regard to the international instruments interconnected with workplace safety.

Not just a mere milestone paper, the Universal Declaration of Human Rights (UDHR,1948) is regarded to be the foundation of international human rights law. In fact, the development of modern human rights is highly in debt to this instrument for setting a “foundation for our common future.” The declaration itself motivated the later journey of stealth expansion of human rights into more specific branches. Such bifurcation widened the scope of UDHR at domestic levels. It is in no doubt that UDHR is also reflected in the Constitution of Bangladesh like the Constitution of many other countries. UDHR possesses the right to life (art. 3, UDHR1948), protection from torture or cruel, inhuman, or degrading treatment or punishment (art. 5, UDHR1948), right to recognition of law (art. 6, UDHR1948), equality of law (art. 7, UDHR1948), right to social security (art. 22, UDHR1948), and right to favorable conditions of work [23(1), UDHR1948]. These rights are also enshrined in the country’s Constitution.

Further, Bangladesh acceded to International Covenant on Civil and Political Rights (ICCPR1966) on 6th September 2000 where it undertook to give effect to the inherent right to life (art. 6, ICCPR1966), prohibition on forced labor [art. 8(3) (a) (b), ICCPR1966], equality before law (art. 16, ICCPR1966) amongst other obligations. Thus, it is obligatory for the country to perform its international obligation.

Upon acceding to International Covenant on Economic, Social and Cultural Rights (ICESCR1966) on 05th October 1998 Bangladesh is said to have undertaken the responsibility to implement the provision in domestic systems. The ICESCR simply puts a clear obligation to ensure “safe and healthy working conditions” for everyone including the workers [art. 7(b), ICESCR1966].

Furthermore, the Human Rights Council of the United Nations endorsed the Guiding Principles (UNGP, 2011) of Business and Human Rights in its resolution 17/4 of 16 June 2011. The general principles as set out in the GP are grounded in states’ existing obligations to respect, protect, and fulfillment of human rights. This tells us why the principles are not something entirely new but a reformulation of states’ already existing human rights obligations in the context of business operations. The GP at the very outset also adds “the need for rights and obligations to be matched to appropriate and effective remedies when breached (UNGP, 2011).”

The guiding principles brought three aspects under the same roof to make a divergence between human rights and corporate responsibility. First, it sets out the state’s duty to protect human rights that solely describes what state’s responsibility is from the foundational aspects. Secondly, it narrates the corporate responsibility to respect human rights and lastly, the remedial measures to be taken in case of violation of such responsibility.

Further, corporate responsibility should be understood not as a responsibility to society only. Since the concern is human rights, it should be extended equally to the workers working in the corporation as well. Furthermore, the responsibility does not end with administrative requirements only, it also requires corporations to involve in remedial measures when they contribute to an adverse impact. Such remedial measures must maintain domestic laws and international standards.

An extension of the state’s responsibility is seen in ensuring access to remedy. It simply calls for judicial, administrative, legislative, and other appropriate means for ensuring access to remedies that are effective in nature (UNGP 2011). It might be a state-based judicial mechanism, or state-based non-judicial grievance mechanism, or a non-state-based grievance mechanism. The effectiveness criteria for non-judicial grievance mechanisms must be legitimate, accessible, predictable, equitable, transparent, and right-compatible (UNGP 2011).

Moreover, the “ILO Declaration on Fundamental Principles and Rights at Work”, (ILO DFPRW, 1998) which was made in 1998 and revised in 2022, is a promise by governments, employers’ organizations, and workers’ organizations to uphold basic human values, which are important to social and economic lives. It affirms the five obligations and commitments inherent in ILO membership, one of which is a “safe and healthy working environment.” Bangladesh is one of the forefront countries to ratify ILO Conventions. For example, she has ratified all [8 (eight)] fundamental Conventions. The last ratification was on 22 March 2022 and will enter into force for Bangladesh on 22 March 2023. She has also ratified the protocol of 2014 to convention no. 29 on 20 January 2022 (ILO, Ratification for Bangladesh).

However, she has not ratified the Occupational Safety and Health Convention, 1981; Protocol of 2002 to the Occupational Safety and Health Convention, 1981; Promotional Framework for Occupational Health Convention, 2006; Occupational Safety and Health (Dock Work) Convention, 1979; Occupational Health Services Convention, 1985; Safety and Health in Construction Convention, 1988; Chemicals Convention, 1990; and Prevention of Major Industrial Accidents Convention, 1993, which are important to protect workers from industrial killing.

Apart from those conventions, some technical instruments like the Social Security (Minimum Standards) Convention, 1952; Maintenance of Social Security Rights Convention, 1982; Employment Injury Benefits Convention, 1964 are also on the same list. This shows the country’s saddening position on occupational safety-related conventions that are not ratified, let alone considering bringing them into the domestic system. Thus, the escape route of liability is visible in the form of non-ratification.

Even if the state has not yet to be ratified many conventions drafted by ILO, it can be said that she has obligations under the covenant and conventions she has ratified. Apart from that, though the current corporate labor policy is deficient, the state has liability under the constitution of Bangladesh, which is the supreme law of the land, to stop industrial killings.

Conclusion and Policy Recommendation

Though Bangladesh belongs to the common law family, in a real sense, common law does not represent the law of Bangladesh when it’s come to questioning about industrial killing (Solaiman, 2021, a; Solaiman, & Begum, 2014). The country’s legal system generally does not broadly incorporate common law ideas beyond the enunciation of statutory provisions. Therefore, in actual fact, the idea of common law responsibility or common law negligent manslaughter is largely absent (Solaiman, 2021, a; Solaiman, & Begum, 2014). As a result, corporate liability must be established in accordance with the PC1860 by mentioning a separate section about ‘corporate homicide.’ A separate section under the PC1860 may remove the current ambiguity to place arrant corporations under homicide liability, which has also been practiced in Australia and Canada. It also would be pertinent to shed light on the process of the corporate manslaughter justice system practice in the UK, from which common law has been inaugurated.

In addition to corporate criminal liability, individuals whose negligent conduct directly relates to industrial killing may also be liable under criminal negligence. A legislative policy may be enacted to hold the corporate boss accountable by default because a corporate boss is the most important person responsible for correcting corporate activities in line with corporate policies. His failure indicates his failure to perform his duty. Besides criminal culpability upon errant corporations and individuals, reparation and compensation policy should be adequate for the victims and their families. For example, housing facilities may be provided to victims and their families. Competent family members of victims may get jobs based on their competency. Disabled workers may get job offers from companies to do alternatively from home.

As of state obligation under international law, Bangladesh has been showing a keen interest in upholding international law since its independence in 1971. The very first document of this country from which the country formally stepped into the world as a free and independent nation is the ‘Proclamation of Independence’ (POI) which expressly undertook “all duties and obligations…under the charter of United Nations” [Bangladesh Awami League, (nd)]. However, the current Constitution of the country has taken a slight shift afterward from the POI since it merely talks about the “promotion of international peace, security and solidarity” (art. 25, Constitution of Bangladesh, 1972) that is ‘not judicially enforceable’ (art. 8, Constitution of Bangladesh, 1972) and thus solely depends upon the Government in power. Now, whether the country accepts international law as obligatory within its domestic framework and practices accordingly has become a separate stream of investigation. Further, the Constitution defines ‘law’ as “any Act, ordinance, order, rule, regulation, by-law, notification or other legal instruments, and any custom or usage, having the force of law in Bangladesh (art. 152 Constitution of Bangladesh, 1972).” Applying the literal rule (or strict rule) of interpretation, one would easily find the non-existence of any reference to any particular word that suffices to bring international instruments within the periphery of what is legally recognized as ‘law’ in Bangladesh. Such absence leads to confusion about whether international law has any effect on the domestic court of Bangladesh or not. Therefore, the position of international law in the domestic legal system of Bangladesh has gone and is still going through scholarly debates. Such confusion has traveled court corridors, intellectual debates, and even judicial proceedings.

The constitution of Bangladesh does not accommodate international legal instruments as binding and these instruments do not have obligatory force in the country’s courts. This leads to absolutely no forum for judicial redressal for the violation of international law in its domestic court. To remove these gaps, current labor law should insert a legal avenue to bring the corporate bodies who evidently violate the country’s international commitments.

In addition to that, the country’s apex court can play a significant role to articulate international law. For example, the Supreme Court of Bangladesh noted observations in two separate cases in this regard. In Hussain Muhammad Ershad vs. Bangladesh (2001) the court opined that though the court is not bound to comply with international law, it may take these laws into consideration when these laws are not in conflict with domestic laws. Also applying different international principles relating to human rights in domestic cases is a growing tendency of the Supreme Court of Bangladesh [Bangladesh National Women Lawyers Association v Government of Bangladesh (2009)].2

In addition to the court’s position about the application of international law, the state has ratified several international instruments; thus, she is responsible for following international policies to stop industrial killings. For example, Bangladesh has ratified ICCPR, so she is responsible for ensuring the inherent right to life. The state has ratified ICESCR, so she is responsible for providing workers with safe and healthy working conditions. She has ratified UDHR, so the state is accountable for ensuring favorable conditions of work, recognition of law, social security, and the right to life.

Though Bangladesh is an active member of numerous ILO conventions, she is yet to ratify many ILO conventions pertinent to workplace safety and security. Therefore, this study recommended to ratified and practicing relevant conventions dealing with occupational safety and health. Further, ILO’s strict supervisory rule may play a significant role in following ILO policies while member states send reports on the progress of the implementation of the conventions they have ratified. Complain procedures by other member states, especially by trade unions, should be rewarded and protected to encourage complaints against errant companies and states to ensure workers’ rights. In addition to that, ILO may approve new policies to deal with industrial killing against disobedient companies and states. ILO also may provide technical help to states like Bangladesh for implementing and expanding workers’ rights with concrete safety regulations and dialogues among government, employers, buyers, and trade unions to stop industrial killings.

The Guiding Principle for Business and Human Rights is a wonderful instrument under the UN. Under this principle, the state can enforce laws requiring business entities to respect human rights and ensure that other laws relating to business corporations are at par with such positions. For better implementation, the state should build a nexus with business entities. The principles should be kept in mind while legislating business-related laws or formulating policies so that no chance of systematic violation arises due to conflicting provisions of law that obstruct the free enjoyment of human rights. Though UNGP is not naturally binding on states (Öberg, 2006), unless the nature of the resolution warrants it to be binding, she can follow UNGP to draw the attention of the world business community for branding made in Bangladesh.

It is to be noted that Bangladesh is one of the involved parties in meeting the 2030 agenda for Sustainable Development Goals (SDGs2030). Among the 17, at least four SDGs deal with workplace safety. For example, ‘ensuring healthy lives and promoting well-being for all (SDGs 3), productive employment, and decent work for all (SDGs 8), ‘building resilient infrastructure, promoting inclusive and sustainable industrialization (SDGs 9), providing access to justice for all, and building effective, accountable, and inclusive institutions at all levels (SDGs 16).’ Therefore, it is very pertinent to think that the state must be stopped industrial killing and be aware of the prediction of SGDs goals to meet by 2030.

Limitations of the Study and Future Recommendation

The discussion of this study is limited to industrial killing in the formal sector (global garment manufacturing supply chain, food supply chain, and container industry) in Bangladesh. There are other large numbers of formal and informal sectors in Bangladesh where several thousand workers lose their lives each year. Therefore, this manuscript recommends further study to include those sectors.

Fund

There is no grant or fund for this manuscript.

Statements and Declarations

Conflict of Interests

The author declares that there is no conflict of interest with the content of the manuscript.