Forced slum evictions in Bangladesh: the role of structural injunction as an appropriate judicial remedy
thesisposted on 28.03.2022, 23:14 authored by S. M. Atia Naznin
Housing is not a right, rather, it is a basic necessity and, therefore, non-justiciable under the Constitution of Bangladesh. However, in the face of the systematic violation of this basic necessity through state-led forced demolition of slums, several local human rights organisations have been litigating on behalf of poor slum dwellers since the late 1990s. Alongside this effort, the Bangladesh Supreme Court has taken a forward-looking approach by directing the government to arrange alternative accommodation prior to evictions. However, critics argue that the judgements have done only symbolic justice by failing to improve the status quo of the evicted slum dwellers. Continued non-compliance with court orders by government authorities due to lack of political will has been identified as the major challenge behind this. Although the political branch of the government is the principal organ to implement court orders, judicial remedies can play a complementary role to influence compliance. In comparison to traditional remedies, such as declarations, recommendations, damages or negative injunctions, scholars and the judicial practices of numerous jurisdictions have increasingly preferred the adoption of structural injunctions and retention of judicial supervision to effectively influence implementation of the court orders. Such remedies enable a court to exercise continuous monitoring over the implementation of its order and engage in dialogue with the executives to prevent them from taking arbitrary ownership of the social rights delivery system. The Bangladesh Supreme Court is yet to adopt structural injunction in litigation on forced slum evictions. Rather, it generally orders weak remedies like declarations and recommendations which are deficient in monitoring political compliance. However, the Court faces several real and compelling challenges that hinder the adoption of structural injunctions. For example, concerns about the separation of powers, resource scarcity, backlog of cases and weak protection afforded to housing in the Constitution or legislation result in judicial deference to the executive authority and consequent avoidance of the adoption of structural injunctions. The scope of structural remedies is also challenged by the absence of a favourable political culture or support structure of vigilant rights-advocacy lawyers or organisations and responsive enforcement agencies. At the same time, an effective remedial intervention by the Court to realise the basic necessity of housing of slum dwellers is required in a society like Bangladesh where social inequality and injustice prevail over constitutional commitment. Against this backdrop, this research explores, firstly, whether structural injunctions offer an appropriate remedy in litigation on forced slum evictions in Bangladesh and, secondly, whether the Bangladesh Supreme Court has the constitutional authority and institutional capacity to overcome the aforementioned challenges and adopt such remedies. By examining prevailing theoretical perspectives, laws and policies and data collected from a field study, this thesis argues that effective remedial intervention via the adoption of structural injunction by the Court to realise the basic necessity of housing of slum dwellers is required in a society like Bangladesh where social inequality and injustice prevail over constitutional commitment. The Court has sufficient constitutional authority and institutional capacity to exercise structural injunctions and supervise political compliance. This authority and capacity emanate from the existence of positive constitutional values to establish socio-economic justice, remedial developments in numerous jurisdictions, remedial authority of the Court under the Constitution, and, overall, the adoption of structural injunction by the Court in other rights litigation. However, to effectively deal with the challenges posed by such injunctions, judges should seek inter-institutional cooperation from relevant stakeholders such as the National Human Rights Commission or the litigating organisations. This research advocates for a change in the judicial strategy of issuing an effective structural remedy to offset the state's often arbitrary interference with slum dwellers' basic necessity of housing. Broadly, it emphasises social transformation by influencing primarily the current remedial approach of the Court and the country's governance system, to ensure justice to evictees.