VOL 20 NO 157 REGD NO DA 1589 Dhaka, Saturday, May 04,2013

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Of disasters, negligence and liability: Nimtoli tragedy revisited

Published : Saturday, 04 May 2013

In case of fire in garment factories and accidents in unauthorized buildings, the regulators like the Fire Service or Rajuk come up with arguments that the factories or buildings do not have licence or permission, But they cannot avoid the tortfeasor liability, writes

M S Siddiqui

The economy of Bangladesh has been growing, on an average, by about 6.0 per cent for the last 1516 years, and there is an emerging middle class. Statistics reveals that higher growth is occurring in the service sector rather than in the industrial sector. Although the demand for services and the availability have gone up, there is a lack of professionalism among the service providers. The regulators are somewhat reluctant to carry out their responsibilities. Moreover, Bangladesh does not have any tort act of its own. The country inherited a draft Tort Act from the British colonial government. But the relevant authorities seem to be ignorant about even where the draft is. Regulators are generally bureaucrats, and are 'relieved of' all their liabilities. These possible liabilities are interrelated, with one influencing the other, particularly under the Tort Act or Convention. Many people were roasted alive in a devastating fire at Nimtoli in the capital in 2010. The blaze occurred apparently due to storage of combustible chemicals in the residential area. Businesspersons dealing in chemicals in old Dhaka have come under surveillance by law enforcers and regulators after the Nimtoli fire. But the civil society and the people in general also have a role to play. The government and some private organisations like housing developers should be held responsible for failure to prevent certain types of accidents or disasters. Practically, the state and private service providers are creating public regulatory or supervisory agencies or authorities to watch over the people's interests. These supervisory bodies are sometimes not serious about their role. In case of fire in garments factories and accidents in unauthorised buildings, the regulators like the Fire Service or Rajuk come up with arguments that the factories or the buildings do not have licence or permission. But they cannot avoid the 'tortfeasor liability'. However, it is difficult to justify the liability of regulatory authorities in Bangladesh, as the supervision is usually not the main cause of damage to a third party. This is more difficult since there is no effective Tort Act and there is no practice and precedence of punishment to those responsible. The citizens rely on regulators and supervisors for their safety and security. The element of reliance

becomes even stronger, if a wing of the government is involved. If a government body decides to create and implement rules, it should also enforce these rules. The government regulators and supervisors have much more responsibility than the private supervisors. The appointment of a regulator or supervisor sends the clear message that there is someone to watch over whoever needs to be watched. Liability of supervisors quite often involves the liability of a public body or agency or a public authority. The regulators have discretionary powers. This does not mean that the job will end with only a marginal test done carelessly. For instance, a supervisor must not ignore signs of any possible mishap if it is brought to his attention. These warning signs need to be followed up. It is known to all the garment factories in the city do not have fire-fighting instruments and fire exits, but they have all necessary licences and permissions from the relevant authorities. The regulators have discretionary powers to go to any garment industry and ask for its licence and see the facilities available. The Nimtoli fire happened due to storage of flammable or highly flammable explosive materials in a residential building and there was the cooking in progress for a marriage ceremony, which generated heat and caused explosion of the materials causing death to residents and damage to properties. Most of the organic materials are explosives, flammable or highly flammable, depending on their quality. Exceptions are some chlorinated solvents like dichloromethane and chloroform. Mixtures of solvent vapours and air can explode. Both diethyl ether and carbon disulphide have exceptionally low autoignition temperatures which increase greatly the fire risk associated with these. The auto-ignition temperature of carbon disulphide is below 100C (212F), so objects such as steam pipes, light bulbs, hotplates and just-extinguished bunsen burners can ignite vapour. Explosives are distinguished between high explosives, which detonate, and low explosives, which deflagrate. Low explosives (that burn through deflagration rather than detonation wave), usually a mixture, are initiated by heat and require confinement to create an explosion. High explosives (supersonic reaction, thus will explode without confinement) are compounds, initiated by heat and high brisance. "Brisance" means the shattering effect of an explosion. Moreover, solvent vapours are heavier than air, they sink to the bottom and can travel a large distance nearly undiluted. Solvent vapours can also form in supposedly empty drums and cans, posing a flash fire hazard; hence empty containers of volatile solvents should be stored open and upside down. Bangladesh is not an addictive drug producing country. But close proximity to Golden Triangle and Golden Crescent has rendered the country vulnerable to trafficking-in and abuse of drugs. 'Precursor chemicals' are imported under licence for industrial and other uses. There are no records of diversion of 'precursor chemicals' in Bangladesh. The country does not manufacture any substance listed in the convention against illicit trafficking of narcotic drugs and psychotropic substances, other than Sulphuric Acid and Acetic Acid. It imports a number of precursors or solvents for use in domestic industries. Ephedrine, pseudo-ephedrine,

ergometrine, toluene and potassium permanganate are imported by the country for industrial, scientific and research purposes. However, the Narcotics Control Act, 1990, includes sanctions against diversion of precursor chemicals. The Narcotics Control Act of 1990 (Act Number XX of 1990) covers the control of narcotic drugs and psychotropic substances. Narcotics Control Rules were framed in 1999 under this Act. The Act was further strengthened through an amendment in 2002. The Act prohibits import, export, sale, purchase, manufacture, processing, transport, possession, use or any other kind of operations except for medicinal, scientific, or legitimate industrial purposes under a licence, permit or pass (Section 9). The Department of Narcotics Control issues licences, permits or passes. However, they cannot be issued to persons with a criminal record (Sections 11 & 12). Handling precursors without the requisite licence, permit or pass entails imprisonment of 2 to 10 years while violation of any condition of the licence leads to imprisonment of up to 5 years and a fine. Importers require an import licence and an import authorisation to import precursors from the Department of Narcotics Control (DNC). On arrival of the consignment, the DNC verifies the physical stock and use of the precursor. Bangladesh does not export any precursors. It has provisions for warning on labels and packages of drugs and precursors. It makes maintaining of correct accounts of drugs and precursors mandatory and introduces controlled delivery procedure under the Act. The total manpower of DNC is 1277. The DNC, police, Boarder Guard, customs offices and the coast guards have been empowered by law to intercept drug trafficking separately and collectively. Bangladesh also witnessed the establishment of NNCB (National Narcotics Control Board) headed by the Home Minister as the highest body to formulate policies regarding drug-related issues. It has formed DDCCs (District Drug Control Committees) at the district level with the DC (Deputy Commissioner) as the chairperson. This committee sits every month to review the drug situation in the district and takes remedial measures. There is a specialised Chemical Examination Laboratory for quick examination of drugs and precursor chemicals in cases of investigation and trial in court. As per the related act and rules, the explosives department is authorised to issue licence for warehouses only on applications accompanied by the layout of the warehouse, inspection report and the approval letter by the Deputy Commissioner of the district concerned, the proof of where the premises is self-owned or rented, police clearance and all other relevant certificates and documents. The authorised officer also inspects the warehouse and issues a storage permit/licence. The importers again obtain permission for each and every consignment imported from abroad. The government may make rules consistent with the act by authorising any officer, either by name or by virtue of his office-to enter, inspect or examine any place, carriage or vessel in which an explosive is being manufactured, possessed, used, sold, transported or imported under the licence issued under the act., or if he has a reason to believe that an explosive has been or is being manufactured,

possessed, used, sold, transported or imported in contravention of the act or the rules made under the act. Under the strict laws and rules, none can store explosives, flammable precursor products anywhere other than approved warehouses. The rationale of these laws and the UN Convention is to monitor or track down use of these products for the actual and intended purpose other than use in production of addictive drugs and explosives, etc. Apart from the relevant departments of the government, there are two assigned and empowered entities with very strong acts to monitor all import, export, sale, purchase, manufacture, processing, transport, possession of solvents / precursor products. Did all these regulators monitor the activities of import, transportation, storage and utilisation ending in proper use and consumption? This is a matter of investigation how the traders can store explosive products in any warehouse in residential buildings. Isn't there any liability of the regulators for the loss of lives and properties owing to sheer negligence or shirking of their responsibility? Coming to the question of liability of supervisors, one could point out the possibility that the imposition of liability could at the same time be a form of extra-supervision, the 'supervision of the supervisors', effectively making way for what would be called 'meta-supervision.' Of course, this task of 'meta-supervision' will then also fall on the government in its supervisory capacity, which is also something that needs to be taken into account. In Bangladesh, it seems that nobody is accountable to anyone.

The writer is a part-time teacher at Leading University, Dhaka. shah@banglachemical.com