Road Transport Act 2018 in Bangladesh: a critique of the transport workers’ liability for driving offences occasioning deaths in light of their equivalents in NSW-Australia

Abstract

Road safety laws play a vital role in the system of enhancing road safety outcomes. Ineffective and outdated laws do not provide the essential foundation needed for generating and maintaining positive community attitudes towards road safety. The Road Transport Act 2018 of Bangladesh (RTA2018) took almost a decade in the making, owing to strong resistance by transport companies. The RTA2018 aims to improve road safety by primarily punishing the offenders. This article finds that the provisions of the RTA2018 concerning the liability for deaths are flawed in many respects having implications for their enforcement and achievement of the legislation’s professed objective. This is illustrated recently in serious public unrest triggered by the deaths of two students, which led to students taking to the street to protest (Jawad in Road deaths and protests: a cycle doomed to repeat itself, 2021). The current complexities created by overlapping and effectively redundant critical new provisions mean that justice cannot be delivered under the RTA2018. This article demonstrates how the laws in Bangladesh regarding transport workers’ liabilities could be streamlined following the Australian (NSW) model. Specific recommendations are furnished to address flaws in the RTA2018. This detailed analysis of laws may also be used by other countries with poor road safety records to improve their laws.

Introduction

Motor vehicles (MVs) are an essential part of our life providing convenience and enabling productivity, but they pose a significant risk with their destructive ability to cause serious injury or death (Cammiss and Cunningham 2015). Deaths caused by MVs appear to become ‘a sui generis’ (King 2020) and judges despondently term such destruction as one of the ‘most serious social problems’ (King 2020, p. 272). Driving is a lawful act in itself; however, automobiles (automobiles, MVs and vehicles—used synonymously) are inherently risky on the road as dangerous driving of an MV has the potential to kill people including other drivers, passengers and pedestrians. Thus, driving relates to the people’s right to life and driving laws, which may impinge on other civil liberties, are justified (Prichard et al. 2010). Further, empirical research suggests that a small risk reduction measure can prevent harm (Redelmeier et al. 2003), and such prevention can be achieved through proper regulation.

Regulation through effective countermeasures to deter driving offences is critical, given its damaging impact on the community through deaths and injuries (Freeman et al. 2016). Therefore, irresponsible driving causing death merits severe punishment (Hirst 2008). It is widely believed that motorists responsible for fatalities generally receive lenient treatment from the courts, even where they commit a serious offence like manslaughter (Hirst 2008). The public generally demand heavier penalties together with ‘swift and sure justice’ for the offences causing deaths whilst driving MVs (Cammiss and Cunningham 2015). Hence, the trend has changed and modern sentencing principles favour greater severity in punishment resulting in awarding more severe penalties to motorists causing deaths than most other involuntary killers (Hirst 2008). Bangladesh aimed to embrace this severity in the RTA2018.

Typically, road safety is measured in terms of the number of crashes, fatalities and injuries (Prichard et al. 2010). Bangladesh, with over 170 million people, has been striving against road accidents for decades. As estimated by the World Health Organisation (WHO), about 20,000 people die and 50,000 become grievously injured every year in Bangladesh in road-related crashes (Correspondent 2019a). A recent international report jointly prepared by the European Union (EU), the United Nations Economic Commission for Europe (UNECE) and WHO reveals that Bangladesh has the lowest number of vehicle-users against the highest number of accidents in the world (Dey 2018). At least 439 people died in November 2020 alone despite the partial-pandemic-lockdown in place (Report 2020; UNB 2020), whilst the highest number of deaths over the past 5 years occurred in 2019, followed by the deaths in 2020. Drivers are responsible for 90.69% of accidents (Zebel 2020). This conforms to the findings from the analysis conducted on data from 1998 to 2018 by the Accident Research Institute of the Bangladesh University of Engineering and Technology (ARI) (Hossain 2020).

Appreciably, the Supreme Court of Bangladesh sometimes issues suo motu rules directing the government to implement, amend or make the law to prevent such accidents, and ordering the MV owners and others to compensate the victims and/or their families, as it happened in the Government of Bangladesh v Ministry of Home Affairs (High Court Division, Suo Motu Rule No. 02 of 2007). Pointing to a sort of ‘lawlessness’ in practice in the country’s traffic system, the Court expressed its discontent in this 2007 Rule by saying that:

Apparently nothing much has been done in order to control the speed of the vehicles within the limits spelt out in [law] …. In the meantime, hundreds and thousands of people died in the road-accidents. Recently, it has been reported in a newspaper that nearly 25 (twenty-five) thousand people died or maimed during the period of last one year. This is a staggering figure but surprisingly not a single case of punishment … has been furnished either on behalf of the BRTA [Bangladesh Road Transport Authority] or the Inspector General of Police [emphasis added] (High Court Division, Suo Motu Rule No. 02 of 2007, p.2).

The facts and figures stated above are alarming. These incidents occurred despite the presence of laws, the Motor Vehicles Ordinance-1983 (MVO1983), the Penal Code 1860 (PC1860), and of several enforcement agencies. People complain against both the weaknesses of the existing law and laxity of regulators. To address the legal loopholes, parliament enacted RTA2018 which partially came into force in November 2019, keeping 10 sections of major offences including those discussed in this article suspended (Bhattacharya 2020), whilst the RTA2018 replaces the MOV1983.

This article intends to critically examine the new and pre-existing legal provisions governing road accidents occasioning death or vehicular manslaughter (VM, includes all deaths on the road caused by or arising out of the use of MVs) and corresponding penalties, with an aim to discover weaknesses in the relevant sections of the RTA2018 and the PC1860 (RTA2018 refers to the PC1860 for the trial of deaths on the road) and to provide suggestions for their further improvement.

Methods

Drivers and their associates, such as bus conductors, play critical roles in making roads (un)safe, whilst laws aim to discipline road users. For example, public buses in Bangladesh typically have two helpers near two doors and a conductor to collect fares, and trucks may have helper(s) on board. They all assist with driving by providing signals, in their customary way to the driver, of traffic conditions behind and beside their MV. In doing so, they sometimes loudly guide the driver or slap the body of the MV in various ways, the meanings of which are known to transport workers. These signals are of particular importance when drivers’ rear or left side vision is obstructed by an excess of standing passengers or driving conditions, such as heavy rain. Therefore, the law should regulate all of those who are directly or indirectly involved in driving MVs. The quality of law thus greatly matters. The flaws in Bangladeshi laws concerning transport workers’ liabilities will be examined through the lenses of the equivalent statutory provisions of New South Wales, Australia (NSW) and the relevant principles of common law, as Bangladesh belongs to the common law family.

The NSW law has been chosen given its success in recent years as the statistics reveals that the number of road deaths in every 100,000 people has declined from 28.9 in 1970 to 4.99 in 2017 (Centre for Road Safety, https://roadsafety.transport.nsw.gov.au/statistics/fatalitytrends.html, 2020). This success in NSW is attributed to several factors, such as improved legislation, increased police presence on the roads, the introduction of random breath testing, upgrades of vehicle technology, and enhanced road safety through better infrastructure. This article focuses on improved legal provisions.

Arguably, despite the socio-economic differences between these two common law jurisdictions, such a textual comparison will be able to demonstrate how Australian approach can help legal drafters in Bangladesh to improve their legal texts. This article is the first of its kind on the RTA2018. Its analysis relies predominantly on primary legal materials (legislation and case law) and scholarly secondary publications (journals, books, reports), whilst also drawing upon pieces from a few national newspapers for useful information due to these sometimes being the most relevant sources available.

Background information treatment of deaths by motor vehicles under the statutes prior to the enactment of the RTA2018

This section discusses the treatment of deaths by MVs under the statutes prior to the enactment of the RTA2018. Theoretically, the MVO1983 and the PC1860 were the two pieces of legislation which were applicable to the consequences of MV accidents. The repealed MVO1983 had no criminal provisions for driving offences causing death, although it proscribed certain driving-related offences (not resulting in death) with specific criminal sanctions (ss138-148, 152,155,159,167). Hence, the MVO1983 falls beyond the scope of the present endeavour. However, the PC1860, which is the main criminal legislation, includes s304B which relates to the offence that ‘causes the death of any person by rash or negligent driving’. In addition, the PC1860 contains s304A about ‘causing death by negligence’ as a general criminal provision. Further, the PC1860 includes intentional (murder, s300) and unintentional unlawful homicide (culpable homicide, s299) caused by anyone, anywhere under any circumstances. For more than a century, it appears that these two penal sections had kept lawmakers disincentivised to add separate offences for deaths on the road. Apart from these ss304B and 304A, s279 of the PC1860 proscribes driving which is likely to cause physical harm to people, but it does not actually require any consequences, let alone any deaths. The discussion of s279 is thus avoided, as it falls outside the scope of this article which considers only offences causing death.

Although Bangladesh is a common law country, it relies little on the substantive common law definitions of the offences at hand (VM, unintentional killing), other than the judicial interpretations of their statutory definitional provisions to a limited extent. Hence, the PC1860 itself provides for both the definitions and punishments of these serious offences which is to be discussed below. However, for now, the relevant provisions of the PC1860 exist with their own flaws in relation to VM, compounded by enforcement weaknesses, which entails the enactment of the RTA2018.

Unlike the MVO1983, the RTA2018 categorically criminalizes driving causing deaths alongside s304B of the PC1860. From this point of view, the new legislation seems to be an improvement in relation to road safety regulation. However, its success may be constrained by the loopholes that it contains. Notably, although the RTA2018 replaces the MVO1983, it (RTA2018) retains and heavily relies on the relevant provisions of the PC1860 to address the deaths on the road. Below are the definitions of offences at hand.

Analysis of definitions of offences arising from deaths caused by motor vehicles

An offence is generally comprised of actus reus (conduct/physical element) and mens rea (fault/mental element) minus defences, though defences are not legally a constituent element of an offence. The offences under the RTA2018 will be examined in light of two elements—actus reus and mens rea, as well as defences and punishments.

The RTA2018 contains two sections, s98 and s105, in relation to transport workers’ individual liabilities for loss of third party’s life or property. Section 98 spells out that driving an MV shall be an offence on the part of its driver or its conductor or helper, if it is driven at a speed exceeding the legal limit, or in a manner which is reckless or dangerous overtaking or overloading, or losing control of the vehicle causing any accident resulting in loss of life or property. The offender shall be punishable with imprisonment for a maximum of 3 years, or with fine not exceeding three lac taka (US$3,750 approx.), or with both, and the court may order the whole or part of the fine to be paid to the victim.

Whilst the enactment of this new legislation is appreciable, the definitional provisions in s98 have various lacunas and ambiguities, which may impede its enforcement against defendants, resulting in victims’ deprivation of justice and lack of deterrence for future offenders including recidivists. These are discussed in turn below.

Ambiguities in actus reus elements

The actus reus elements are speeding, recklessness or dangerous overtaking or overloading or losing control of the vehicle. All of these acts are prevalent on the road in Bangladesh, with many drivers demonstrating a road-user culture of behaving dangerously and competitively when driving. Frequently people drive recklessly and dangerously, for example, by overtaking competing service provider vehicles in the pursuit of increased income, and/or using their mobile phones whilst driving. Such dangerous and distracted actions contribute to accidents (Saleh 2018).

Actus reus elements are not sufficiently clear. The words ‘reckless’ and ‘dangerous’ are attached to actus reus elements. However, definitions of ‘recklessness’ and ‘dangerousness’ are required, and losing control of MVs needs clarification as to whether the loss of control should be owing to driving faults or mechanical faults. This is because these two different faults should have different implications. For example, if the MV did not have a fitness certificate, had a fitness certificate which was issued unduly, or the driver and his/her assistants did not have a valid licence or had a licence issued improperly, then the liability should extend to owners and in some cases regulators as well, in addition to drivers. This is so because, the owners were negligent in appointing unqualified people as drivers and their assistants reasonably knowingly, whilst the regulator should take responsibility for issuing licence unfairly. Of great concern is that, the Bangladesh Road Transport Authority (BRTA) reported to the Supreme Court of Bangladesh in February 2019 that 33% of buses do not have fitness certificates, whilst condition of engines of 59%, speed governor seals of 56%, bodies of 46%, both indicator and signal lights of 41%, chassis of 38%, wheel arch of 36% and both wipers and brake lights of 31% buses are in a bad condition (Correspondent 2019b). An unfit MV is always dangerous for all—transport workers, passengers and pedestrians—who may be directly affected by an accident, and its owner may suffer a substantial financial loss, in the absence of a useful insurance system. Additionally, they may have to face legal actions. Notably, Bangladesh does not have a good insurance system in place that might protect claimants.

The burning question is: how do unfit MVs manage to continue to be on the road and transporting the public? Despite the prevalence of such unlawful circumstances, s98 places liability specifically on drivers, conductors and helpers only. Notably, we will shortly argue that s98 is overridden by s105 of the RTA2018, rendering it completely redundant, as far as it relates to VM. Hence, we will examine the actus reus elements further in the discussion of conduct elements of the sections which are presently enforceable against deaths on the road. The fault element ambiguities are shown below, which will also be relevant to the more critical statutory provisions (s304B of the PC1860 & s105 of the RTA2018) to be discussed in this article.

Fault elements in section 98 driving offences

Evidently, the definition of the offence provided in s98 of the RTA2018 does not mention any mens rea element as such, nor does it negate the need for such elements. Addressing an ambiguity of mens rea requirements in statutory provisions, the High Court of Australia (HCA, the nation’s highest court) in He Kaw Teh v The Queen (HKT) pronounced whilst interpreting statutory law, that if a provision of legislation is silent about the mens rea requirement, it does not necessarily mean that no mens rea is required (HKT). The HCA held that where the legislation is silent and there is no exclusion of a mens rea requirement, either expressly or by necessary implication in the section creating the offence, there is still a common law rebuttable presumption that mens rea is required. The mens rea requirement can be successfully rebutted by the prosecution, if they can prove that the lawmakers intended to avoid such a requirement of a given offence and to make the offence one of strict or absolute liability. The HCA also sets forth the ways of rebutting the mens rea presumption in which it specifies three matters to be taken into consideration in ascertaining whether the presumption has been displaced by the relevant section of the statute, and whether the legislators intended the section creating the offence to negate fault element altogether (HKT paras 5–7). These three matters are the language of the section defining the offence, the subject matter of the statute, and the efficacy of law (HKT, paras 5–7).

Firstly, with regard to language, the words of the section defining the offence should be interpreted carefully to discover whether legislators intended to add any mens rea as a constituent element of the offence (HKT, para 5). With the benefit of hindsight, it seems that the wording of s98 does not imply that the parliament intended to apply mens rea, because all critical words are directly attached to actus reus. Secondly, the subject matter of the statute in relation to mens rea of a particular offence (HKT, para 6) refers to the nature of the offence in question: whether or not it is truly criminal. The presumption is that the more serious the offence (the severity of penalties a relevant consideration), the more likely it is that a fault element was intended to be incorporated by legislators. The subject matter of the RTA2018 is indeed serious, because it addresses a grave concern of accidents resulting in harm including loss of life. However, the punishment for the consequence of even death of humans is considerably low compared to that of unintentional culpable homicide, generally known as manslaughter. Unintentional culpable homicide shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to a life-term imprisonment under s304 of the PC1860 (see also its ss299, 301). In contrast, s98 of the RTA prescribes a maximum jail term of 3 years for death, which is equivalent to the punishment for offensive driving with no consequences under s279 of the PC1860. In view of such light penalties in s98, compared to those sanctioned for unintentional culpable homicide under the core criminal legislation (PC1860), it can be argued that parliament might not have intended to add a fault element. Thirdly, the last point to pay regard to is the efficacy of law with or without mens rea elements. In this respect, the impact of the law is to be taken into account in view of whether the imposition of strict or absolute liability would have a good deterrent effect.

The creation of deterrence by any law depends on its clarity, penalties, and proper enforcement by competent authorities. Also, the benefit of a given law depends on either its voluntary compliance by its subjects, or its compulsory enforcement by competent authorities, the judiciary and the executive, in an efficient manner (Solaiman 2005). Having regard to the facts and figures of the frequency of accidents and their resultant fatalities as alluded to earlier, it can be logically argued that any fault elements as an essential component of the offences under s98 would impede its enforcement and emasculate its efficacy. Generally, it would be difficult for the prosecution to prove any subjective mens rea elements such as intention, knowledge or recklessness.

In summary, it can be inferred from the above judicial interpretation of mens rea requirement by the HCA in HKT and its corresponding references to s98 of the RTA2018 that the legislators might not intend any fault element to be attached to the actus reus elements. This is so because the maximum term of imprisonment prescribed is only 3 years for killing people on the road, as opposed to the life imprisonment for unintentional homicide under the PC1860 (see its ss299, 304), which requires mens rea. Such an inference on s98 can be further substantiated by reference to its statutory equivalent in NSW, s52A of the Crimes Act 1900 (CA1900), as follows.

The Judicial Commission of NSW identifies s52A of the CA1900 as the statutory scheme for dangerous driving (Judicial Commission of NSW 2020, https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/dangerous_driving.html). Section 52A incorporates both definitions and penalties of two basic offences and their aggravated forms, depending upon the consequences of the prohibited driving and circumstances of aggravation. The consequences are occasioning death (subsections 1 and 2) or grievous bodily harm (GBH) (subsections 3 and 4, unrelated to this article), of a victim.

Section 52A(1) defines the offences occasioning death:

A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years.

The aggravated version of the offence attracts a higher penalty in s52A(2):

A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.

The offences contained in s52A are regarded as the most serious driving offences in NSW. Though serious, the dangerous driving offences defined in s52A are judicially interpreted as of strict liability requiring no evidence that the accused had driven the MV knowingly, or intended to drive dangerously (see Jiminez v The Queen 1992; Anthony et al. 2013). A common law defence to such a strict liability provision is an honest and reasonable mistake of fact that it was safe to drive, with the initial or evidential burden placed on the defendant (HCA in Jiminez v The Queen 1992). To satisfy this burden, the defendant ‘must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which if true, would take his act outside the operation of the enactment and that on those grounds he did so believe’ (Proudman v Dayman 1941, p. 541). Once the evidential burden is successfully discharged, the onus is shifted to the prosecution to disprove the defendant’s claim (legal burden). This defence is believed to have derived from the landmark decision in which Dixon J of the HCA pronounced that ‘As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence’ (Proudman v Dayman 1941, p. 540).

Notably, as can be seen in the above-quoted s52A, the definition of the offences includes no mens rea elements, neither regarding ‘reckless’ nor ‘negligent driving’; nonetheless, the prescribed punishments (10 and14 years) are much higher than those permitted in s98 of the RTA2018. However, s52A impliedly includes a defence of ‘honest and reasonable mistake of fact’ which is not explicitly present in s98, and whether or not this defence is inherent in s98, remains uncertain.

It should be noted that s105 of the RTA2018 duplicates the consequence of loss of life (already included in s98) and adds GBH which was not in s98 (instead, s98 included loss of property). We can now turn to s105 to examine what difference it makes, through the duplication of death as a consequence, and to consider the ramification of this reinforced proscription of dangerous driving.

Deaths duplicated in s105 and its implications for s98 of the RTA2018

Perhaps the most important consideration is that s105 of the RTA2018 definitely overrides s98, making the later unenforceable and thereby effectively redundant in practice. This is because, s105 (its title ‘Crimes Concerning Accidents’) is meant to define crimes relating to MV accidents, but it begins with an overriding proviso:

Notwithstanding anything contained in this Act, if a person is grievously injured or killed in an accident involving driving a motor vehicle, offences relating to that accident shall be deemed to be offences under the relevant provisions of the Penal Code 1860:

Provided, however, that notwithstanding anything contained in s304B of the Penal Code 1860, if a person is grievously injured or killed caused by a person’s reckless or negligent driving of a motor vehicle occasioning the accident, the latter person shall be punished with imprisonment of either description for a term which may extend to five years, or with a fine up to five lac taka [US$6,250 approx], or with both.

If, and as it must be in practice, s105 overrides s98, the significance of incorporating s98 is questionable, other than the cases causing loss of property. If it applies to property loss only, imprisonment for a term of 3 years may be too lengthy to achieve the efficacy of the law; rather the pecuniary penalty could be increased with a shorter term of imprisonment, so that the victim could receive adequate compensation and the perpetrator could get appropriate punishment proportionate to his/her wrongful conduct. This is so because the PC1860 stipulates the same term of 3 years imprisonment with an unspecified amount of fine for ‘rash or negligent’ driving causing death of any person (s304B). However, we are not in favour of the latter 3 years either, as will be argued shortly below.

Taking into account the duplication and overriding effect identified above, the legislature owes an explanation as to the applicability and usefulness of s98 in the presence of s105 which relies absolutely on the PC1860 by overriding anything that may be contained anywhere in the RTA2018. Notably, an important change that s105 of the RTA2018 brings about is increasing the punishment set forth in s304B of the PC1860 as follows.

Inadequacy of punishments despite the increase under s105 of the RTA2018

The first paragraph of s105 does nothing more than overriding other provisions on offences causing GBH or death in the RTA2018 and refers to s304B of the PC1860, for the trial of road deaths. The second paragraph increases punishments for reckless (rash) or negligent driving (as proscribed in s304B) from 3 to 5 years and permits pecuniary penalties from unspecified amount (s304B) to a maximum of five lac taka (US$6,250 approx.). The increased maximum penalties are inadequate; moreover, no minimum threshold has been prescribed, and only a pecuniary penalty may be awarded in exclusion of incarceration, which could be counterproductive in some cases as explained shortly below.

Appreciating the significance of higher penalties in road safety, the NSW Court of Appeal in R v Slattery (1996) held that increasing the penalties by amending legislation denotes the seriousness of the offences which requires giving prominence to the principle of deterrence (see also Freeman et al. 2016). The Court adds:

The action of the legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner (R v Slattery 1996, p. 524).

More recently, Wilson J of the NSW Court of Criminal Appeal iterated the significance of general deterrence and asserts that it is important ‘because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle’ (R v Manok 2017). Wilson J adds ‘It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress’ (R v Manok 2017, para. 79].

The inadequacy of the amended punishment in Bangladesh law becomes evident when compared with s52A of the CA1900 which provides for imprisonment of 10 years, and 14 years for aggravated version of the offence as shown earlier. Section 52A deals with the consequence of GBH and death by dangerous driving, so much as s105 of the RTA2018 does. Section 52(3) of the CA1900 prescribes 7 years imprisonment for dangerous driving occasioning GBH, whilst s52A(4) sets forth 11 years of imprisonment for aggravated dangerous driving occasioning GBH (circumstances of aggravation are described in subsection 7). Hence, the penalties for causing GBH in NSW are much higher than those prescribed under s105 of the RTA2018 and 304B of the PC1860 for death in Bangladesh. Death is separately addressed in subsection 1 and 2 of s52A with even much higher punishments (10 years and 14 years). Although these prescribed terms of imprisonments in NSW are not accompanied by any pecuniary penalty, this does not soften the punishment in any way, because the amount of fine that can be added to the significantly lower term of incarceration under s304B of the PC1860 is very small, and the courts have the discretion to impose either or both of imprisonment and fine. It means the perpetrator may avoid jail term altogether at the ‘absolute’ discretion of judge in the absence of any practice of sentencing hearing in Bangladesh (Bari 2014). The exact punishment in some cases may be influenced and worsened by corruption, as allegations of bribery against the judiciary have become a common phenomenon. For example, a 2016 survey conducted by Transparency International Bangladesh (TIB) revealed that 48.2% of people pay bribes to the judiciary (Report 2016). The overall corruption in Bangladesh is alarming as it scored 26 out 100 in the 2019 Corruption Perceptions Index of Transparency International, a German-based organisation (details can be obtained from https://www.transparency.org/en/countries/bangladesh). The situation is worsening as evidenced by the new downgraded ranking of Bangladesh to 12th for 2020 (Transparency International Corruption Perceptions Index 2020—released in January 2021), two steps lower than the rank of 14th in 2019 (details can be obtained from https://www.transparency.org/en/cpi/2020/index/bgd). In response to this downgrading, the Chairman of the Anti-Corruption Commission–Bangladesh publicly opines that ‘government is not sincere in curbing graft’ and adds that ‘most of its recommendations go unheeded’ (Correspondence 2021). In response to a query about judicial corruption, the Chief Justice of Bangladesh in 2016 publicly asserted that ‘corruption prevails all over the place across the country and judiciary is nothing different’ (Desk 2016). In such a situation, the discretion of the judges needs to be constrained, and the term of imprisonment should be further increased in order to be an effective deterrent.

Overlapping coverage of the offences with different punishments generating confusion

A critical issue is that s304B is concerned with ‘rash or negligent’ driving, whilst s98 is silent about negligence, but s98 covers over-speeding, or reckless driving or dangerous overtaking or overloading, or loss of control. No judicial interpretation is found showing that s304B covers all these offences captured in s98. Then, a question may arise, who will try the cases causing death or GBH by driving offences mentioned in s98 beyond the coverage of s304B, given the overriding proviso of s105? This disparity between the three sections (ss98 & 105 of the RTA2018 and s304B of the PC1860) and the displacement of s98 by s105 need to be reconsidered and clarified.

In addition, a further question may reasonably be asked, which is: what is the reason for keeping s304B of the PC1860 unchanged where the section is exclusively dedicated to rash and negligent driving? Instead of adding the second paragraph to s105 of the RTA2018, s304B of the PC1860 could be directly amended by changing the penalties. Then, s105 could be fully avoided by adding the overriding effect to s98, if such a proviso was deemed indispensable. The coexistence of these two sections (s105 & s304B) can obviously create confusion amongst the public. This is so because s304B punishes exclusively ‘rash or negligent driving’ for maximum 3 years imprisonment and it stays as it is, on the other hand s105 increases s304B’s punishment to 5 years for the same offence, then what is the need for keeping 3 years in s304B unchanged?

Causation and persons liable under s98 and s105 of the RTA2018

Causation and culpability are two distinctive grounds of criminal liability. The concept of causation differs from the culpability of an accused in that the former relates to the consequences of behaviour, whilst the latter refers to an offender’s fault or state of mind at the time of commission of the offence. Hence, culpability corresponds to the element of mens rea (Husak 2012), and this mental element can be of four types—intent, recklessness, knowledge and negligence (Brown et al. 2020)—whereas consequence can be legally linked to both actus reus and mens rea (Brown et al. 2020). Causation is immensely important when the commission of an offence requires a certain consequence to occur that places the onus generally on the prosecution to prove a causal link between the two (causation and consequence).

Unlike s98, s105 does not specify the persons to be liable for the death or GBH of a victim. Apparently, only the driver may be held liable under s105, as s105 refers to s304B which provides that whoever causes death shall be liable.

Therefore, a critical requirement in s304B is causation. Indeed, drivers physically control the steering; however, as alluded to earlier, their associates provide signals of traffic conditions surrounding their vehicles to their drivers. Drivers generally heed these signals, as is customary in Bangladesh. Then, a question may arise as to who causes the death if the driver is misguided by his/her associates?

Presently, no one can be punished until the causal link is established. There is no guidance on how to prove this link. In a dangerous driving case, the UK Court of Appeal held on causation of the harm that the defendant’s act or omission need not be a substantial or major cause of the death, but it has to be a cause, and something more than de minimis (R v Hennigan 1971). Primarily, the driver is likely to be responsible as the MV controller. Then, both the helpers and conductors (as specifically mentioned in s98) are likely to be acquitted even though they misguided their driver contributing to the fatal accident. Notably, s99 of the RTA2018 imposes liability on others for complicity (assisting or abetting in, or conspiring for the commission of an offer under the legislation) with the same penalty as applicable to the primary actor. However, the enforcement of s99 is doubtful owing to the overriding provision of s105.

Section 52A of the CA1900 prudently avoids this complexity by prescribing liability of those driving MVs which are involved in an impact occasioning the death in question. Section 52A (5) clarifies when a vehicle is ‘involved in impact occasioning the death’. It says, generally the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following:

(a) the vehicle overturning or leaving a road whilst the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle whilst the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (g) the person falling from the vehicle, or being thrown or ejected from the vehicle, whilst being conveyed in or on the vehicle (whether as a passenger or otherwise), (h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, whilst the person is being conveyed in or on the vehicle (whether as a passenger or otherwise).

Admittedly, the context is different because unlike the practice in Bangladesh, MVs in NSW generally do not use helpers or conductors. The expression in s52A is, nonetheless, very thoughtful in that the emphasis is on the consequences, whereas the Bangladesh law highlights causation, but does not provide any guidance on the nature of causality required (for example, whether it has to be just a cause or a major cause or an operating cause or the sole cause etc.). The expression in the century old Bangladesh PC1860 should be changed in line with the NSW law (a list of convictions in NSW can be obtained from https://www.publicdefenders.nsw.gov.au/Documents/manslaughter-motor-vehicle.pdf, 2020). An appreciable change has been made in the RTA2018 (s98) by directly naming the drivers, helpers and conductors, which will make the prosecution tasks easier, but its applicability is doubtful because of overriding effect of s105.

Legal clarity facilitates enforcement of traffic law, which helps create deterrence for all involved in driving directly or indirectly (for fatality trend in NSW, https://roadsafety.transport.nsw.gov.au/statistics/fatalitytrends.html, 2020). Of course, involvement in the accident must be the central consideration at the trial. Ambiguities in law may inhibit enforcement and thereby become a disincentive for road-users who may have contributed to accidents, but will walk free.

Discussion

The RTA2018 has been enacted at a moment when unprecedented public unrest was demonstrated in a manner which was grief-stricken, inconsolable, and politically unmanageable without harm (Hossain 2018; Zaman 2018; Azad and Wadud 2018). People wanted ‘road safety law’, whereas the government legislated ‘road transport law’, aimed at improving street safety. The RTA2018 has been a subject of criticism (Haq 2019; Ahmed 2018; Azad and Wadud 2018; Moneruzzaman 2019), owing to its inherent weaknesses. We have little doubt about the government’s intention to make a more pro-public law, but the transport owners and workers’ unions are overtly hostile. For example, ss98 and 105 speak of punishment for road accidents, and offences thereunder are now nonbailable. Both employers and workers demand that the crime be made bailable by amending these sections, and fines be reduced (Bhattacharya 2020). Notably, they succeeded in 1985 in reducing drivers’ punishment for rash and negligent driving causing death from 5 to 3 years imprisonment by pressing the government to the PC1860 (Haq 2019). This example, although not recent, underlines the scale of the cultural challenges still facing legislative amendments in Bangladesh that are intended to enhance crime prevention efforts.

Whatever may be the context, the RTA2018 seems to have been poorly drafted as it suffers from several ambiguities and shortcomings, rendering the law practically redundant to a great extent. The following flaws have been found in examining the provisions consequences for loss of life on the road.

First. Ambiguities in actus reus in s98 of the RTA

The words ‘reckless’ and ‘dangerous’ are parts of actus reus elements in s98. However, the meanings of these critical words are not provided, which would create application and enforcement problems. We recommend that statutory meanings of these terms and the ways of proving them, such as whether these will be tested subjectively or objectively, be added to the section for clarity and uniform application. Losing control of an MV is another actus reus element, and it needs to be clarified who will take the responsibility if such a control is lost owing to a mechanical fault and the owner did not fix it.

Second. No fault element in s98–nor does it negate the need for a fault element

An offence is generally committed by actus reus with the requisite mens rea, unless the legislation displaces the latter. The definitions of offence provided in s98 do not mention any specific mens rea element, nor do they negate its need, leaving the disputing parties in a dilemma, which is conceivably inhibitive to successful prosecution, unless the prosecution can successfully displace the common law presumption of mens rea requirement. Given the lower punishment prescribed for such deaths compared to other unlawful homicides, and the need for the efficacy of the law, we recommend that these offences be statutorily made strict liability offences, subject to the honest and reasonable mistake of fact defence to be tested purely objectively.

Third. Duplication of deaths and confusion about the application s98, s105 of the RTA2018 and s304B of the PC1860

Both s98 and s105 incorporate death as a common consequence, whereas the latter overrides the former. Apart from loss of life, s98 includes loss of property and prescribes 3 years imprisonment for either consequence, whereas s105 increases the term of incarceration from 3 to 5 years. A question begs to be answered as to the use of s98. If s98 is to deal with only property losses, the imprisonment term of 3 years may be disproportionately lengthy, whereas the same length of incarceration still stays in s304B for loss of life. The usefulness of s105 is also questionable because it does not define any offences, and the increase in punishment could be accomplished by directly amending s304B, and the overriding effect could be included in s98.

Further, s304 deals with ‘rash and negligent driving’, whilst s98 apparently avoids negligent acts, but covers over-speeding, or reckless driving or dangerous overtaking or overloading, or loss of control. No judicial interpretation is available showing that all the offences of s98 are embraced in s304B. Given the overriding effect of s105, who will try the cases involving offences of s98 not covered by s304B? This disparity between the three sections (s98, s105 & s304B) should be reconsidered and reconciled.

Fourth. Inadequate punishment with extensive sentencing discretion

Section 105 increases punishments prescribed in s304B. When compared with their NSW counterparts, punishments permitted in s304B as effectively amended by s105 are considerably low and probably too low to be an effective deterrent. Moreover, widely alleged corruption in the judiciary may render the actual penalties even lighter in some instances particularly in the absence of any sentencing hearing. We recommend that the punishments be further increased in line with the NSW law having regard to the identical serious consequences of death.

Fifth. Causation and ambiguity about the persons liable under s98, s105 of the RTA2018 and s304B1860

Causation, as distinct from culpability, is an essential requirement of the offence at hand. There is also a significant difference between establishing causation and proving consequences. Section 52A in NSW requires the vehicle driven by the person to be involved in an impact occasioning death of or GBH to another person; whereas s304B begins with prominence of causation. Proving the causal link between proscribed conduct and consequence is generally a harder task for the prosecution compared to showing the fatal consequences of road accidents. Section 98 and 105 are not clear about their emphasis on causes or consequences. So all of these provisions could be streamlined by giving emphasis to consequences in line with s52A. Arguably, only the driver can be held liable under s304B applying the doctrine of causation, as it fundamentally requires causing death by the accused. Unlike s304B, s98 categorically specifies drivers, conductors and their helpers as potentially liable persons, whilst s105 does not specify anyone. Then, who should be held liable eventually? This is ambiguous because unlike NSW, drivers in Bangladesh very often and sometimes blindly (e.g. when standing passengers or rains obstruct driver’s vision) follow the signals of their associates (helpers and conductors). In a case where the signal of an associate was inappropriate leading to the victim’s death, a legal question should arise who actually caused the death in question, although the driver appears to have factually caused it. This problem of ambiguity needs to be rectified.

Conclusion

Laws are at the heart of road safety (Miller et al. 2018). In an overly populated country like Bangladesh, where people are culturally traffic-law ignorant (Islam et al. 2020), appropriate laws that are powered by an unquestionable commitment of the government and its enforcement agencies to enforce the law are essential to stop deaths on the road. Raising public awareness of road safety along with incorporating the proposed amendments to the law will help enhance prevention of injuries and fatalities. A demonstration of timely actions against any violations of laws, along with transparency and unavoidable accountability in every facet of the regulatory activities of the transport sector is vital to improving road safety in Bangladesh. Primarily, it is the responsibility of the government to ensure public safety by making clear law followed by efficient law enforcement and attempts to motivate the road users to be compliant with the law. In the greater interest of people of Bangladesh, its national economy, and traffic crime prevention efforts, we hope the government will take the necessary action recommended in the discussion above concerning the inadequate and ambiguous drafting of some provisions in Bangladesh’s RTA 2018. The continuing problems concerning road safety are illustrated in the deaths of two students in late 2021, which led to public protests and the personal intervention of the Prime Minister (Jawad 2021). Although this legal analysis has been explicitly concerned with the laws of Bangladesh and NSW, this detailed analysis of laws might have wider applicability to other countries with poor road safety records to improve their laws.