Legal Regulation of CSR in Weak Economies: The Case of Bangladesh

Rahim, Mia Mahmudur

doi:10.1007/978-3-642-40400-9_6

Legal Regulation of CSR in Weak Economies: The Case of Bangladesh

Mia Mahmudur Rahim⁴

Chapter
First Online: 01 January 2013

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1 Citations

Part of the book series: CSR, Sustainability, Ethics & Governance ((CSEG))

Abstract

The aim of this chapter is to assess the extent to which laws relating to CSR in Bangladesh might contribute to including CSR as a central theme in self-regulated corporate responsibility. It explains why the major Bangladeshi laws relating to corporate regulation and responsibility do not possess the required features necessary to compel corporate self-regulators to contribute to developing a socially responsible corporate culture in this country. It argues that development of a socially responsible corporate culture in Bangladesh should not rely on either corporate self-regulation or authoritative modes of regulation. Rather, this should be based on a combination of force majeure and economic incentive-based legal strategies, as long as civil society, the media, NGOs, and the consumers of Bangladesh are able to systematically monitor corporate self-regulation.

An initial version of this chapter was published. For details, see Mia Mahmudur Rahim, ‘Legal Regulation of Corporate Social Responsibility: Evidence from Bangladesh’ (2012) 41(2) Common Law World Review 97–133

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Notes

1.
These industries are prominent for their impact, attitude and business strategies. Bangladesh’s RMG industry is one of the largest exporters of garments in the world. It is the largest foreign currency earning industry in this country and engages a large proportion of the labour force of this country. Currently there are 4,673 registered companies/companys in this industry. Other than the registered companies, there are thousands of unregistered companies working as sub-contractors, and together, these registered and unregistered companies contribute the most companies/companys to all the industries in Bangladesh. The Bangladeshi ship-breaking industry is the largest of its kind in the world. Recently, its workplace environment, business strategies and pollution management have become important issues in the industrial policy and corporate regulation debates. The leather goods and processing industry is also prominent for its poor environmental management strategies and corporate attitudes. Together, approximately 150 companies from this industry are the largest water polluter in Bangladesh.
2.
The rationale for the choice of these three laws is provided in the Methodology section of Chap. 1 of this book.
3.
Central intelligence Agency, the World Fact Book (2009) Central intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/index.html at 1 April 2011.
4.
Bangladesh Bureau of Statistics, Statistical Pocketbook of Bangladesh, 2008, Dhaka.
5.
Asian Development Bank, ‘Bangladesh Quarterly Economic Update’ (Asian Development Bank, 2010) 8, http://www.adb.org/Documents/Economic_Updates/BAN/2010/QEU-Sep-2010.pdf at 6 February 2011; in four of the last 6 years Bangladesh’s economy has grown at around 6 %. For details, see GDP, Savings and investment, Ministry of Finance at http://www.mof.gov.bd/en/budget/er/2009/c2.pdf at 12 February 2011.
6.
Javed Siddiqui, ‘Development of Corporate Governance Regulations: The Case of an Emerging Economy’ (2010) 91(2) Journal of Business Ethics 253, 257.
7.
Details are available at http://dsebd.org/latest_share_price_scroll1.php at 23 September 2011.
8.
In June 2011, this sector earned $1,000 million. For details, visit Bangladesh Bank, Economic Data at http://www.bangladesh-bank.org/econdata/openpdf.php?i=6 at 2 July 2011.
9.
Bangladesh Bank, Monthly Balance of Payments http://www.bangladesh-bank.org/econdata/bop?txtPeriod=1 at 2 July 2011.
10.
World Bank, ‘The Future of Research on Corporate Governance in Developing and Emerging Markets’ (World Bank, 2002) in Shahzad Uddin and Jamal Choudhury, ‘Rationality, Traditionalism and the State of Corporate Governance Mechanisms: Illustrations from a Less-Developed Country’ (2008) 21(7) Accounting, Auditing & Accountability Journal 1026. For details on this reform from a developing country’s perspective, see Randhal Morck, Daniel Wolfenzon and Bernard Yeung, ‘Corporate Governance, Economic Entrenchment, and Growth’ (2005) 43(3) Journal of Economic Literature 655; Ajit Singh and Ann Zammit, ‘Corporate Governance, Crony Capitalism and Economic Crises: Should the US Business Model Replace the Asian Way of “Doing Business”?’ (2006) 14(4) Corporate Governance: An International Review 220.
11.
Uddin and Choudhury, above.
12.
Non-legal drivers are those actors and factors that can create an impact on the internal regulation of the regulatees. The type and availability of such drivers varies with the societies and regulates concerned. Some general non-legal drivers are the media, civil groups, NGOs, coalitions of corporations, quality of education, consumerism etc.
13.
Ataur Rahman Belal, Corporate Social Responsibility Reporting in Developing Countries: The Case of Bangladesh (2008) 38.
14.
M J H Jabed and Kazi Mahmudur Rahman, ‘Corporate Responsibility in Bangladesh: Where Do We Stand’ (The Centre for Policy Dialogue, 2003) 3.
15.
BGMEA, Summary Report on Compliance (2008). The BGMEA’s report is based on its Compliance Monitoring Cell’s quarterly investigation into compliance situations. The BGMEA’s quarterly survey covers employment conditions such as minimum wages, issue of identity cards and appointment letters, provisions of leave including weekly, casual, sickness and maternity, festivity leave and benefits for maternity leave, overtime payments, fire safety arrangements, and formation of participatory committees. For a scholarly contribution that supports this, see Jabbar Jenefar, Ready Made Garment Sector in Bangladesh: A Study from the Employers’ Perspective, RMG industry, Post MFA regime and Decent Work: The Bangladesh Perspective (2005) 55, 63.
16.
In this regard, an international Labor organziation (ILO) study found that though a worker cannot work for more than 8 h per day, 50 % of Bangladeshi workers work for at least 12 h per day, and 40 % of workers work 12–15 h per day. For details, see ILO, Social Compliance and Decent Work: Bangladesh Perspective (2007) 16. Another study by the Nari Unnayan Kendar supports the findings of the BILS survey. According to the NUK survey, 90 % of the export production zone (EPZ) factories and 30 % of factories with a contract with their buyers maintain the working hours required by the law. Factories working with buyers’ agents and subcontracting factories do not maintain legal working hours. Masuda Khatun Shefali (Executive Director, Nari Unnayan Kendar), ‘Social Compliance in Textile and Garment Sector in Bangladesh’ (speech delivered at the Ministry of Commerce Textile Cell, Dhaka, 25 July 2005).
17.
Jabed and Rahman, above n 14, 5.
18.
Ibid.
19.
Ibid 4.
20.
Ibid.
21.
Ibid 5.
22.
Malik Asghar Naeem and Richard Welford, ‘A Comparative Study of Corporate Social Responsibility in Bangladesh and Pakistan’ (2009) 16(2) Corporate Social Responsibility and Environmental Management 108, 113, 115.
23.
Ibid 119.
24.
The RMG industry is the only multi-billion-dollar manufacturing and export industry in Bangladesh, and is one of the chief RMG exporters worldwide. In April 2011, this industry exported US $14.17 billion worth of garments. This industry is the most flourishing trade in this country: from 0.001 % of the country’s total export earnings in 1976, it has increased its share to approximately 79 %. Over the last two decades it has grown by approximately 20 % per annum on average. For details, see Bangladesh Bank, Monthly Balance of Payments at http://www.bangladesh-bank.org/econdata/bop.php?txtPeriod=1 2 July 2011; ‘Comparative Statement on Exports of RMG and Total Exports of Bangladesh, Bangladesh Garments Manufacturing and Exporters Association’, http://www.bgmea.com.bd/home/pages/Tradeinformation at 11 February 2011; ‘BGMEA At a Glance’, http://www.bgmea.com.bd/home/pages/aboutus at 11 February 2011; ‘Facts and Figures of Knitwear Sector’, Bangladesh Knitwear Manufacturers and Exporters Association, http://www.bkmea.com/facts_figures.php at 11 February 2011; Mohammed Ziaul Haider, ‘Competitiveness of the Bangladesh Ready-Made Garment industry in Major International Markets’ (2007) 3(1) Asia-Pacific Trade and Investment Review 3, 6.
25.
Mohammed Ghulam Hussain, ‘Compliance in RMG Industry of Bangladesh’ in Social Compliance and Decent Work: The Bangladesh Perspective: Papers and Proceedings of the National Tripartite Meeting on Social Compliance in the RMG Sector (2007) 1, 33; Pratima Paul Majumder and Anwara Begum, ‘The Gender Impact of Growth of Export Oriented Manufacturing in Bangladesh: Case Study: Ready-Made Garment Industry Bangladesh’ (Bangladesh Institute of Development Studies, 2000) 37; in 1994, a Bangladeshi worker was paid only US $0.11 for each shirt made, Indian and Pakistani workers were paid US $0.26 and US $0.43 respectively. For details, see Salma Chaudhuri Zohir, Intra-Household Relations and Social Dynamics among Garment Workers in Dhaka City (2000).
26.
Clean Clothes Campaign, Bangladesh: Factory Workers are Entitled to Realistic Living Wage (29 July 2010) http://www.fibre2fashion.com/news/apparel-garment-association-news/newsdetails.aspx?news_id=89200 at 28 December 201; Matiur Rahman, ‘Grievance Against the Wage Role, Agitation in Chittagong: Three Killed’, The Prothom Alo (Dhaka), 13 December 2010; M. Hossain, ‘RMG Workers’ Minimum Wage Fixation: BGMEA Wants a Balance Between Need, Affordability’, The Financial Express (Dhaka), 15 July 2010.
27.
Clean Clothes Campaign, Bangladesh: Factory Workers are Entitled to Realistic Living Wage (29 July 2010) at 11 January 2011.
28.
Fahmida Khatun et al., Gender and Trade Liberalisation in Bangladesh: The Case of the Ready-made Garments (2007) 39.
29.
A study revealed that for the same investment and the same time period, a compliant RMG company generates more turnover than a non-compliant company. For details, see Lal Mohan Baral, ‘Comparative Study of Compliant and Non-Compliant RMG Factories in Bangladesh’ 10(2) International Journal of Engineering and Technology 129, http://www.ijens.org/108602-7272%20IJET-IJENS.pdf at 4 January 2011; Monjur Ahmed, ‘Message to Walmart: Low Wages Hampers the Credibility of the top RMG Exporting Country’, The Prothom Alo (Dhaka), 21 July 2010; Shahiduzzaman Khan, ‘Trade Unionism and Minimum Wages issue in Apparel Industry’, The Financial Express (Dhaka), 4 July 2010.
30.
Muhammad Azizul Islam and Craig Deegan, ‘Motivations for an Organisation Within a Developing Country to Report Social Responsibility Information: Evidence from Bangladesh’ (2008) 21(6) Accounting, Auditing and Accountability Journal 850, 854.
31.
Circular No. BGA/ssd/2005/128, Dec. 10, 2005.
32.
Islam and Deegan, above n 30, 854.
33.
Mohammad M Maruf Hossain and Mohammad Mahmudul Islam, ‘Ship-Breaking Activities and its Impact on the Coastal Zone of Chittagong, Bangladesh: towards Sustainable Management’ (Young Power in Social Action, 2006) 5; M Shadad Hossain et al., ‘Occupational Health Hazards of Ship Scrapping Workers at Chittagong Coastal Zone, Bangladesh’ (2008) 35(2) Chiang Mai Journal of Science 370, 371.
34.
In this country, Chittagong Steel House first scrapped a Greek ship, the ‘M D Alpine’ in 1964. The introduction of commercial ship-breaking in this country began in 1974 when Karnafully Metal Works Ltd. bought a damaged Pakistani ship, the ‘Al Abbas’. See, Hossain and Islam, above 5; M Shahad Hossain et al., above.
35.
Sitakundu AFP, ‘Scrap Ships Could Shore up Demand for Cheap Steel’, The Daily Star (Dhaka), 19 August 2008.
36.
Ibid.
37.
For details, see Hossain and Islam, above n 33.
38.
Ruben Dao, ‘Childbreaking Yards: Child Labour in the Ship Recycling Industry in Bangladesh’ (2008), http://www.fidh.org/IMG/pdf/bgukreport.pdf at 6 January 2011.
39.
Md. Saiful Karim, ‘Violation of Labour Rights in the Ship-Breaking Yards of Bangladesh: Legal Norms and Reality’ (2009) 25(4) International Journal of Comparative Labour Law and Industrial Relations 379, 380.
40.
Dao, above n 38, 5. There are no official statistics regarding human casualties in these yards. The figures relating to these casualties are dependent on regular local media releases complied by local NGOs. According to these sources, 500 people died over the last 15 years, with 200 deaths occurring in the last 5 years. In both cases, these deaths amount to between 1,000–1,200 over the last three decades, assuming that the annual loss of life of ship-breaking workers is more or less the same each year. However, these figures do not cover the deaths of workers who die as a result of chronic diseases due to exposure to toxic substances. For details, Erdem Vardar et al., ‘End of Life Ships: The Human Cost of Breaking Ships’ (December 2005). This report can be found at http://www/fidh.org/IMG/pdf/shipbreaking2005a.pdf at 14 November 2011.
41.
Karim, above n 39, 380.
42.
The apex court of this country has given these directions while deciding some writ petitions related with the conservation of costal environment and labour rights in ship braking yards. For instance, in writ petition Writ Petition No. 2911 of 2003 (Bangladesh Environmental Lawyers Association—BELA v. Bangladesh). In its petition Bangladesh Environmental Lawyers Association named as respondents the Ministry of Shipping, the Ministry of Industries and Commerce, the Ministry of Labour and Employment, the Ministry of Environment and Forest, the Department of Environment, the Department of Fire Service and Civil Defence, the Chief Inspector of Factories and Establishments, the Department of Explosives, the Collector of Customs, the Mercantile Marine Department, and the Bangladesh Ship Breakers Association. The BELA sought to compel the respondents to “(i) ensure that ship breaking operation by the owners of ship breaking yards are undertaken only after obtaining certificate of environmental clearance as required under section 12 of the Environment Conservation Act 1995 and the Environment Conservation Rule 1997 and in strict compliance thereof to check pollution of coastal/marine ecosystem caused by the disposal of hazardous ship wastes; (ii) ensure that ship breaking operation by the owners of ship breaking yards are undertaken only after obtaining gas free certificate …; (iii) ensure that import of ship for breaking purposes is regulated in line with the requirements of the Basel Convention, 1989; [and] (iv) adopt detailed and appropriate safety and labour welfare measures.” The petitioner also sought an order requiring the government authorities “to submit periodic reports of compliance stating the progress achieved in implementing the time-bound directions of [the] Court and/or require any other person, body or authority to monitor such progress and report.” Upon hearing the petition, the High Court Division of the Bangladesh Supreme Court “issued a Rule Nisi calling upon the respondents to show cause why they should not be directed to ensure that ship breaking operation is undertaken only after obtaining certificate of environmental clearance as required under section 12 of the Environment Conservation Act 1995 and on adopting detailed and appropriate safety and labour welfare measures as required under the Factories Act 1965. The Court has also asked the respondents to show cause as to why ship breaking shall not be undertaken only after obtaining gas free certificate from the custom Department to prevent dangerous explosion and protect the workers/labourers from the risk of death, grievous heart [sic] and injuries. In this regard the respondents would also show cause why import of ship for breaking purposes shall not be regulated in line with the requirements of the Basel Convention, 1989.” Amongst the other writ petitions where the court has provided direction, Writ Petition No. 3916 of 2006 (Bangladesh Environmental Lawyers Association v. Bangladesh), Writ Petition No. 3916 of 2006 (Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, judgment delivered on 6 Jul. 2006, unreported), Bangladesh Environmental Lawyers Association v. Ministry of Shipping (MT Enterprise Case, order dated Mar. 17, 2009), Writ Petition No. 2048 of 1997 (Bangladesh Ship Breakers Association and Another v. The Commissioner of Customs and other, order dated 10 Apr. 1997, unreported) are prominent. For some references of some other writ petitions related with these issues, visit Bangladesh Environmental Lawyers Association, List of Selected Public Interest Litigation at http://www.belabangla.org/html/pil.htm 29 January 2010.
43.
In Bangladesh, like “other common law countries with written constitution[s], neither the [c]onstitution nor the judiciary is supreme, and the Supreme Court is the final interpreter of law. The function of the judiciary includes the enhancement of rule of law, to promote the fundamental rights, and to administer the law impartially between citizen and state and between citizen and citizen. The judiciary can mould principles of law and give them a sense of coherence and direction.” Jona Razzaque, ‘Access to Environmental Justice: Role of the Judiciary in Bangladesh’ (2000) 4 Bangladesh Journal of Law 1, 1.
44.
It would be worth mentioning the suggestion of Sawyer. He writes: ‘These developing nations [India, Bangladesh, and Pakistan] must improve conditions themselves because the shipbreakers are in their jurisdictions. If the shipbreakers do not improve their standards, developed nations will increase their own shipbreaking industries and nations with minimally higher standards, like China, will steal away market share. In order to sustain their shipbreaking industry, these three developing nations must do together what they have been unwilling or unable to do alone, achieve the goal of environmentally sound management of the shipbreaking industry’. For details, see John F. Sawyer, Shipbreaking and the North-South Debate: Economic Development or Environmental and Labor Catastrophe? (2002) 20 Pennsylvania State International Law Review, 535, 562.
45.
Satadal Sarkar, ‘When Will the Waste Flow in the Buriganga Stop?’, the Prothom Alo (Dhaka), 10 November 2010.
46.
Product-Wise and Region-Wise exports, the Ministry of Commerce of the Government of Bangladesh, http://www.epb.gov.bd/?NoParameter&theme=default&Script=exporttrend#Region at 14 February 2011.
47.
Mohammad Golam Rasul, Faisal Islam and Mohammad Masud Kamal Khan, ‘Environmental Pollution, Generated from Process industries in Bangladesh’ (2006) 28(1) International Journal of Environment and Pollution 144.
48.
A K Enamul Haque, Human Health and Human Welfare Costs of Environmental Pollution from the Tanning Industry in Dhaka—An Environmental Impact Study (North South University, 1997) in Moinul Islam Sharif and Khandaker Mainuddin, ‘Country Case Study on Environmental Requirements for Leather and Footwear Export from Bangladesh’ (Bangladesh Centre for Advanced Studies, 2003) 10.
49.
Sharif and Mainuddin, above 9; for details and the source of this information, see Sarkar, above n 42.
50.
Anisur Rahman Khan, ‘Tanneries Relocation Move Hits Roadblock’, The Independent (Dhaka), 21 July 2010.
51.
Ibid; Sarkar, above n 42.
52.
Dr. Mohiuddin Farooque v. Bangladesh & Others, Writ Petition No. 891/1994 (Industrial Pollution Case).
53.
Ibid. A synopsis of this case is available at Bangladesh Environmental Lawyers association, ‘List of Selected Public interest Litigation (PIL) of BELA’, http://www.belabangla.org/pdf/pil.pdf at 22 October 2011.
54.
Ibid.
55.
Sharif and Mainuddin, above n 45, 9.
56.
Khan, above n 47.
57.
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and Others, Writ Petition No. 1430 of 2003.
58.
Abul Hasnat and Suvongkor Kormokar, ‘Leather Industry Passing a Critical Situation’, The Prothom Alo 5 November 2011.
59.
Section 104 of Schedule 1 of the Companies Act 1994 (Bangladesh).
60.
In this Act, most of the rights and liabilities of corporate directors are mentioned in Sections 90–115. In certain other sections of this Act, there are more rights and liabilities of directors. However, none of these sections has specifically dealt with the liabilities of corporate directors for the social responsibilities of companies.
61.
Section 139 of the Companies Act 1994 (Bangladesh) is related to this issue. It states: ‘(1) If any prospectus is issued in contravention of [S]ections 136 or 137, the company and every person, who is knowingly a party to the issues thereof, shall be punishable with fine which may extend to 5,000 taka.’
62.
Section 146 of the Companies Act 1994 (Bangladesh) denotes that directors stating false information in their company’s prospectus will not be liable if they can prove that the ‘statement was immaterial or that he had reasonable ground to believe, and did, up to the time of the issue of the prospectus, believe the statement was true.’ Moreover, the due diligence provision of this Act is not clearly defined. These issues will be explained in the next section of this chapter.
63.
Heledd Jenkins and Natalia Yakovleva, ‘Corporate Social Responsibility in the Mining industry: Exploring Trends in Social and Environmental Disclosure’ (2006) 14(3–4) Journal of Cleaner Production 271; Francesco Perrini, ‘Building a European Portrait of Corporate Social Responsibility Reporting’ (2005) 23(6) European Management Journal 611; MaryAnn Reynolds and Kristi Yuthas, ‘Moral Discourse and Corporate Social Responsibility Reporting’ (2008) 78(1) Journal of Business Ethics 47.
64.
Andrew Griffin, New Strategies for Reputation Management: Gaining Control of Issues, Crises and Corporate Social Responsibility (2008); Mette Morsing and Majken Schultz, ‘Corporate Social Responsibility Communication: Stakeholder Information, Response and Involvement Strategies’ (2006) 15(4) Business Ethics: a European Review 323; William S Laufer, ‘Social Accountability and Corporate Greenwashing’ (2003) 43(3) Journal of Business Ethics 253; M L Barnett, ‘Stakeholder influence Capacity and the Variability of Financial Returns to Corporate Social Responsibility’ (2007) 32(3) Academy of Management Review Archive 794.
65.
Charles Medawar, ‘Corporate Social Audit’ (1976) 1(4) Accounting, Organizations and Society 389–394.
66.
Rob Gray et al., ‘Social and Environmental Disclosure and Corporate Characteristics: A Research Note and Extension’ (2001) 28(3–4) Journal of Business Finance and Accounting 327, 329.
67.
For details see D Zeghal and S A Ahmed, ‘Comparison of Social Responsibility information Disclosure Media Used by Canadian Firms’ (1990) 3(1) Accounting, Auditing and Accountability Journal 38.
68.
Under Schedule X1, and Part II of the Companies Act 1994 and under Schedule, Part II of the Securities and Exchange Rules 1987, the total amount spent on the use of energy is to be shown in notes in the financial statements under a separate heading of expenditure. For details, see Probal Dutta and Sudipta Bose, ‘Web-Based Corporate Reporting in Bangladesh: an Exploratory Study’ (2007) 35(6) Cost and Management 29, 37.
69.
Sheikh Solaiman, ‘Investor Protection and Civil Liabilities for Defective Prospectuses: Bangladeshi Laws Compared with their Equivalents in India and Malaysia’ (2005) 25 Journal of Law and Commerce 509, 538; Belal, above n 13, 36; Moazzem Hossain, ‘Some CA Firms Fail to Perform Duties in Capital Market’, The Financial Express (Dhaka), 22 March 2011.
70.
According to Section 143(1) of the Companies Act 1994 (Bangladesh), ‘untrue statement’ includes statements that are misleading in the form and context in which they are included, and any omission from a prospectus which is calculated to mislead.
71.
Siddiqui, above n 6, 271. For a comprehensive report on the institute of Chartered Accountants of Bangladesh’s role in regulating the accounting auditing profession, see Bangladesh Company institute, ‘A Comparative Analysis of Corporate Governance in South Asia: Charting a Roadmap for Bangladesh’ (Bangladesh Company institute, 2003) 24, 27.
72.
AIMS, ‘AIMS Ditches Modern Food’, Weekly Market Review (Dhaka), 10 July 2000, 2. Details available at http://www.aims-bangladesh.com/2000/75WeeklyJuly-10-2000.pdfcan; M S Rahman, ‘AIMS Backs Down on Pledge to Underwrite Modern Food: Audited Accounts Differ from Prospectus Statement’, The Daily Star (Dhaka) 3 July 2000, in Solaiman, above n 65, 24.
73.
Rahman, above.
74.
Dulacha G Barako, Phil Hancock and H Y Izan, ‘Factors Influencing Voluntary Corporate Disclosure by Kenyan Companies’ (2006) 14(2) Corporate Governance: An International Review 107, 109.
75.
Harvey Pitt, ‘The Changing Standards by Which Directors Will Be Judged’ (2005) 79(1) St. John’s Law Review 1, 2.
76.
For more discussion of this term, see Richard R Cipra, ‘There is No Substitute for Due Diligence’ (2004) 8 Los Angeles Business Journal; Eric Hallinan, ‘Due Diligence’ (2004) Reeves Journal; Reference for Business, ‘Due Diligence’, http://www.referencesforbusiness.com/management/De-Ele/Due-Diligence.html at 23 July 2011.
77.
Solaiman, above n 65, 525.
78.
For judicial observations on due diligence in Malaysia, see Globallink Container Line v. Bhumiputra Commerce Bank (Suit No. S7-22-1502-2003, Civil Division of the High Court of Malaya at Kuala Lumpur); for judicial observations on due diligence of corporate directors in India, see Soma Dhawal, ‘Directors Liability’ (2011), http://www.legalservicesIndia.com/articles/dl.htm at 22 October 2011; V Karthyaeni, ‘Directors’ Care and Duty in Case of Breach’ (2011), http://www.goforthelaw.com/articles/fromlawstu/article49.htm.
79.
Shahzad Uddin and Trevor Hopper, ‘A Bangladesh Soap Opera: Privatisation, Accounting, and Regimes of Control in a Less Developed Country’ (2001) 26(7–8) Accounting, Organisations and Society 643; Comparative Analysis of Management Accounting Practices in Sri Lanka, Bangladesh and Ghana (2004), Paper presented at the Asia and Pacific Interdisciplinary Research in Accounting Conference, Singapore in Uddin and Choudhury, above n 37, 30.
80.
Omar Al Farooque et al., ‘Corporate Governance in Bangladesh: Link Between Ownership and Financial Performance’ (2007) 15(6) Corporate Governance: An International Review 1453, 1455; Rwegasira provided a detailed account of this hybrid CG, see K Rwegasira, ‘Corporate Governance in Emerging Capital Markets: Whither Africa?’ (2000) 8(3) Corporate Governance: An International Review of Financial Studies 258; for a discussion on the suitability of US-styled stockholder model in weak economies, see Troy Paredes, ‘Corporate Governance and Economic Development’ (2005) Spring Regulation 34; Regarding CG in South Africa, see Andrew West, ‘Theorising Corporate Governance in South Africa’ (2006) 68 Journal of Business Ethics 233, for India, see A M Mukherjee-Reed, ‘Corporate Governance Reforms in India’ (2002) 37 Journal of Business Ethics 249.
81.
The capital market of this country is still in a primitive stage; in 2006, this market accumulated only 7.5 % of this country’s GDP. Hence, the banking sector supplies most business capital; excessive liquidity and competition drive this sector to pass credit leniently. For details, see the Bangladesh Bank at http://www.bangladesh-bank.org and the Securities and Exchange Commission of Bangladesh at http://www.secbd.org at 5 February 2011.
82.
Bangladesh has two stock exchanges, the Dhaka Stock Exchange and the Chittagong Stock Exchange. These Stock Exchanges, though established in 1954 and 1995, have not flourished in comparison with neighbouring exchanges. In 2006, the average number of listed companies for the four Indian stock exchanges was 1,175 and 237 in Sri Lanka, the average for the Bangladeshi exchanges is 347, as of 5 February 2011. Amongst the 500 listed securities on the Dhaka Stock Exchange (until 16 November 2011), only 271 are tradable. For details, see http://www.secbd.org/ and http://www.secbd.org/ at 5 February 2011.
83.
Siddiqui, above n 6, 256; Asian Development Bank, ‘Bangladesh Quarterly Economic Update’ (Asian Development Bank, 2010), http://www.adb.org/documents/economicupdates/ban/default.asp at 5 February 2011.
84.
O Imam and M Malik, ‘Firm Performance and Corporate Governance Through Ownership Structure: Evidence from Bangladesh Stock Market’ (2007) 3(4) International Review of Business Research Papers 88, 92; this scenario is prevalent in Asian CG structure. For instance, 68, 72, 67, 62, 56, and 48 % of listed companies in Hong Kong, Indonesia, Malaysia, Thailand, Singapore and South Korea respectively are controlled by family. For details, Richard Welford, ‘Corporate Governance and Corporate Social Responsibility: Issues for Asia’ (2007) 14(1) Corporate Social Responsibility and Environmental Management 42, 43, 48; Farooque et al., above n 76, 1455.
85.
Ibid.
86.
Section 86 of the Companies Act 1994 (Bangladesh). Uddin and Choudhury, above n 10, 1037; Bangladesh Company Institute, ‘A Comparative Analysis of Corporate Governance in South Asia: Charting a Roadmap for Bangladesh’ (Bangladesh Company Institute, 2003) 33; M Reaz and T Arun, ‘Corporate Governance in Developing Economies: Perspective from the Banking Sector in Bangladesh’ (2006) 7(1) Journal of Banking Regulation 94, 101.
87.
Siddiqui, above n 6, 257; Uddin and Choudhury, above n 10, 1034.
88.
Farooque et al., above n 76, 1455; for details of the influence of ownership structure on corporate disclosure practices, see Gerald Chau and Sidney Gray, ‘Ownership Structure and Corporate Voluntary Disclosure in Hong Kong and Singapore’ (2002) 37(2) International Journal of Accounting 247; Simon Ho and Shun Wong, ‘A Study of the Relationship Between Corporate Governance Structures and the Extent of Voluntary Disclosure’ (2001) 10(2) Journal of International Accounting, Auditing and Taxation 139.
89.
This code is the sole comprehensive set of guidelines for CG and resembles the Cadbury Code or the Combined Code in the UK. The Cadbury Code has been adopted by the London Exchange Commission.
90.
In April 2010, this sector earned US $922.16 million. For details, visit Bangladesh Bank, Economic Data at http://www.bangladesh-bank.org/econdata/openpdf.php?i=6 at 2 July 2011.
91.
Some ILO Conventions that Bangladesh has ratified are: Convention No. 29 on no forced labour, No. 87 on the freedom of association, No. 98 on the right to organise; No. 100 on equal remuneration, No. 105 on the abolition of forced labour, No. 111 on no discrimination in employment and occupation; No. 182 on the abolition of the worst forms of child labour. This country has not ratified Convention 138 on respect for the legal minimum age.
92.
Islam, above n 40, 385.
93.
Ammena Chowdhury and Hanna Denecke, ‘A Comparative Analysis Between the Bangladesh Labour Law 2006 and 7 General Codes of Conduct’ (German Technical Cooperation 2007).
94.
Before the enactment of this Code in 2006, there were about 44 labour laws, dealing with four broad categories of labour issues: (a) wages and employment; (b) trade union and industrial disputes; (c) working environment and occupational health and (d) labour administration and industrial relations. This law has repealed almost all of these laws and consolidated the matters of all these four groups of issues within its ambit.
95.
Section 26 of the Bangladesh Labour Law 2006 (Bangladesh).
96.
Ibid.
97.
Section 123 of the Bangladesh Labour Law 2006 (Bangladesh). According to Section 122, a fixed period for regular pay cannot be more than 30 days.
98.
Section 115, 116 of the Bangladesh Labour Law 2006 (Bangladesh).
99.
Section 108 of the Bangladesh Labour Law 2006 (Bangladesh).
100.
Section 117 of the Bangladesh Labour Law 2006 (Bangladesh).
101.
Section 183(2) of the Bangladesh Labour Law 2006 (Bangladesh).
102.
Hamida Hossain, Roushan Jahan and Salma Sobhan, ‘Industrialisation and Women Workers in Bangladesh: From Home-based Work to the Factories’ (1988); Daughters in Industry, Kuala Lumpur: Asian and Pacific Development Center 107 in Noeleen Heyzer, Daughters in Industry: Work, Skills, and Consciousness of Women Workers in Asia (1988); Repon Chawdhury and Sayeed Ahmed, Social and Economic Costs of Post-MFA Phase Out: Workers’ Perspective, in RMG Industry, Post MFA Regime and Decent Work: The Bangladesh Perspective (2005); Kevin Kolben, ‘Trade, Monitoring, and the ILO: Working to Improve Conditions in Cambodia’s Garment Factories’ (2004) 7 Yale Human Rights and Development Law Journal 79; Salma Chudhury Zohir, ‘Emerging Issues in the RMG Sector of Bangladesh: Insights from an Company Survey’ (Bangladesh institute of Development Studies and OXFAM, 2003).
103.
The ILO, Decent Work, http://www.ilo.org/global/topics/decent-work/lang--en/index.htm at 23 June 2011.
104.
Dharam Ghai, ‘Decent Work: Concept and Indicators’ (2003) 142(2) International Labour Review 113.
105.
The ILO considers ‘decent work’ as an agenda for development. The incorporation of this concept in labour regulation was tested between 2002 and 2005 under the Decent Work Pilot Program in eight economies, including Bangladesh. For details of the ILO’s views on this agenda, see http://www.ilo.org/global/topics/decent-work/lang-en/index.htm at 23 June 2011.
106.
For a detailed study on how the role of state in corporate regulation might explore the connection between development within companies and the labour market, see Christopher Arup, innovation, Policy, and Law: Australia and the International High Technology Economy (1993); Christopher Arup, ‘Labour Law as Regulation: Promises and Pitfalls’ (2001) 14 Australian Journal of Labour Law 229, 243.
107.
ILO, ‘Decent Work, Report of the Director General’ (International Labour Organization, 1999)2.
108.
Gray S Fields, ‘Decent Work and Development Policies’ (2003) 142(2) International Labour Review 239, 240.
109.
Ibid.
110.
Ibid.
111.
Muhammed Muqtada, ‘Promotion of Employment and Decent Work in Bangladesh: Macroeconomic and Labour Policy Considerations’ (Employment Strategy Department, ILO, 2003)2.
112.
Article 20 of the United Nations Millennium Declaration http://www.un.org/millennium/declaration/ares552e.htm at 1 July 2011.
113.
ILO, Reducing the Decent Work Deficit: A Global Challenge (2001)12.
114.
UNDP, ‘Human Development Report 2000’ (UNDP, 2000)1 http://hdr.undp.org/en/media/HDR_2000_EN.pdf at 1 July 2011.
115.
Ibid.
116.
Tasneem Siddiqui, ‘International Labour Migration from Bangladesh: A Decent Work Perspective’ (Policy Integration Department, National Policy Group, ILO, 2005)2.
117.
Employment Policy Convention 1964 (ILO Convention No. 122).
118.
Jill Murray, ‘Corporate Social Responsibility: An Overview of Principles and Practices’ (2004)123.
119.
Muqtada, above n 107, 31.
120.
Fair Labour association (FLA), 2006 Annual Public Report, http://www.fairlabor.org/2007report/ in Gunseli Berik and Yana van der Meulen Rodgers, ‘The Debate on Labour Standards and International Trade: Lessons from Cambodia and Bangladesh’ (Department of Economics of the University of Utah, 2006)39.
121.
Labour Force Survey 200, in Muqtada, above n 107, 24.
122.
Berik and Rodgers, above n 116, 22.
123.
See ‘Ministry of Fisheries and Live Stock of Government of the Peoples’ Republic of Bangladesh’, a handout answering allegations in the petition (manually collected).
124.
See, US Department of State, United States Trade Representative Considers Withdrawing Bangladesh’s Trade Preference (13 April 2004, updated 30 July 2008) http://www.america.gov/st/washfile-english/2004/April/20040413173337ndyblehs0.3866541.html at 29 March 2011; in the last two decades, at least 13 major incidents occurred in garment factories, which claimed the lives of more than 1,300 workers. Among them, two recent major incidents, the fire in the KTS garment factory in Chittagong and the collapse of the nine-storey Spectrum Garment Building, have caused widespread shock and showed the state of vulnerable situations in the workplace. See New Steps, Workers’ Rights and Working Conditions in the Export-oriented Garment Sector in Bangladesh: A Review (2006) http://www.newsteps.info/workers_rights.php at 26 March 2011. For a detailed picture of labour casualties due to the lack of proper implementation of this Code, see Part III of Chapter II of this study.
125.
Sections 20, 180 and 221 of the Bangladesh Labour Law 2006 (Bangladesh).
126.
There are six EPZs in Bangladesh. They are governed by the Bangladesh Export Processing Zones Authority Act, 1980 (Bangladesh). Section 11A of this Act empowers the government to exempt EPZs by notification in the official Gazette from the operation of all or any of the following enactments: The Boilers Act 1923 (Bangladesh), the Employment of Labour Act 1965 (Bangladesh), the Factories Act 1965 (Bangladesh) and the Industrial Relations ordinance 1969 (Bangladesh). on 6 March 1986, the Government of Bangladesh issued a notification under Section 11A of the Bangladesh Export Processing Zones Authority Act exempting the EPZs created under the Act from the application of the Industrial Relations Ordinance, 1969 (Bangladesh), and the Employment of Labour (Standing orders) Act 1965 (Bangladesh). On 9 January 1989, the Government issued another notification exempting the EPZs from the application of the Factories Act 1965 (Bangladesh). As a consequence, EPZ workers in Bangladesh had been deprived of the rights mentioned in the Bangladesh Labour Law 2006 (Bangladesh) to form and join trade unions and to bargain collectively with their employers. For details see Ramapriya Gopalakrishnan, Freedom of Association and Collective Bargaining in Export Processing Zones: Role of the ILO Supervisory Mechanisms (2007)15.
127.
Gray S Fields, ‘Decent Work and Development Policies’ (2003) 142(2) International Labour Review 239, 240.
128.
These rights are mentioned into the ILO Declaration on Fundamental Principles and Rights at Work adopted by the international Labor Conference at its 86th session, Geneva, 18 June 1998. This Declaration is available at http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang--en/index.htm at 5 July 2010.
129.
Berik and Rodgers, above n 116, 23.
130.
Bangladesh has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) on 22 June 1972. For the list of the ILO conventions that are ratified by this country, visit http://webfusion.ilo.org/public/applis/appl-byCtry.cfm?lang=EN&CTYCHOICE=3090&hdroff=1 at 2 July 2011.
131.
Ministry of Labour and Employment of Bangladesh in Karen Dunn and Abdul Hye Mondal, ‘Report on the Review of the Decent Work Country Program: Bangladesh 2006–2009’ (ILO Regional office for Asia and the Pacific, 2010) 12.
132.
An interesting point in the trend of unionisation in this country is that the rate of increasing of the registered labour unions is higher than the rate of registered members in the unions. The number of registered trade unions increased by 5.3 % and the registered members of this unions increased by 1.8 % in 2009. This indicates that there is increasing fragmentation in the trade union movement in this country. For details, see Dunn and Mondal, above, 12.
133.
BGMEA, BGMEA at a Glance (2009) Bangladesh Garment Manufacturers Association http://www.bgmea.com.bd/home/pages/aboutus at 24 May 2011.
134.
Jenefar Jabbar, Ready Made Garment Sector in Bangladesh: A Study from the Employers’ Perspective, RMG Industry, Post MFA Regime and Decent Work: The Bangladesh Perspective (2005)55, 63.
135.
Section 345 is the only section in this Code that deals with discrimination in workplaces. It mentions that the employer must ensure equal wages for equal work. For details, see Naila Kabeer and Simeen Mahmud, ‘Globalisation, Gender and Poverty: Bangladeshi Women Workers in Export and Local Markets’ (2004) 16(1) Journal of International Development 93.
136.
Steven Capsas, ‘The Gender Wage Gap in Bangladesh’ (ILO, 2008).
137.
This report is based on the Labour Force Survey of 2002–2003 for this data. For this survey, visit http://www.bbs.gov.bd/WebTestApplication/userfiles/Image/Wing/labour_indus.pdf at 28 November 2011.
138.
Berik and Rodgers, above n 116, 23.
139.
Chawdhury and Ahmed, above n 98, 100, 108.
140.
Masuda Khatun Shefali, ‘Social Compliance in Textile and Garment Sector in Bangladesh’ (Textile Cell, Ministry of Commerce, 2005).
141.
Berik and Rodgers, above n 116, 22.
142.
Section 309(1) of the Bangladesh Labour Law 2006 (Bangladesh). For a comprehensive a list of different offences and criminal punishment for the offences under this Code, visit http://www.corporateaccountability.org/dl/international/bang/briefing/enforcementfeb08.doc at 6 January 2011.
143.
A 2009 ILO-supported study by the Centre for Policy Dialogue (2009).
144.
Employees in the public sector constitute only 4 % of the total labour force of this country where employees in the formal private sector constitute 17 %, and workers in the informal economy the remainder. For details, see Dunn and Mondal, above n 127, 8.
145.
Berik and Rodgers, above n 116, 24.
146.
According to the Second National Child Labour Survey conducted by the Bangladesh Bureau of Statistics in 2002–2003, there were 4.9 million working children, or 14.2 % of the total 35.06 million children in the 5–14 years age group. The total population of working children aged between 5 and 17 years is estimated at 7.9 million. Another survey in 2006 revealed that among these child labourers, the agriculture sector accounts for 62 %, while the service and industrial sectors account for 23 % and 15 % respectively. For details see the Multiple indicators Cluster Survey 2006 and the National Child Labour Survey 2002–2003; for a general view on this issue, visit ILO, Sub-regional Information System on Child Labour http://www.ilo.org/legacy/english/regions/asro/newdelhi/ipec/responses/Bangladesh/index.htm at 1 July 2011.
147.
Khatun et al., above n 28, 50.
148.
Ibid 27.
149.
Dunn and Mondal, above n 127, 12.
150.
Bangladesh has ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). This country has a Tripartite Consultative Council as its highest tripartite body. However, the Bangladeshi government rarely follows the provisions of this convention and the recommendations of this committee. As mentioned earlier, the Code was passed without full consultation between the tripartite partners. For details, see Dunn and Mondal, above n 127, 12.
151.
Belinda Smith, above Chapter I n 16.
152.
Act No. 1 of 1995.
153.
Salahuddin M Aminuzzaman, ‘Environment Policy of Bangladesh: A Case Study of an Ambitious Policy With an Implementation Snag’ (2010) www.monash.edu.au/research/…/asia…/paper_salahuddin_aminuzzaman.pdf at 14 December 2010, 12.
154.
For details, see Asian Development Bank, ‘Country Environmental Analysis Bangladesh’ (Asian Development Bank, 2004), www.adb.org/Documents/CEas/BAN/BAN-CEA-Jul2004.pdf at 14 December 2010.
155.
The Environmental Impact Assessment of Development Projects Notification 1994 (as amended in 1997) under the Environment (Protection) Act 1986 (Bangladesh). For details, visit http://envfor.nic.in/divisions/ic/wssd/doc2/ch2.html at 13 January 2011.
156.
The Environmental Protection Rules 1986 (India) have detailed these issues. see http://india.gov.in/allimpfrms/allrules/264.pdf at 19 August 2011. For a comparative study, see IUCN-Bangladesh (2000), Review of the Laws and Policies Concerning Natural Resources Management in Bangladesh; Aminuzzaman, above n 149.
157.
The comment of Niaz A Khan and Ataur Rahman Belal would be worth mentioning here. To them, the ‘rhetoric purposes only for the central politicians and bureaucratic leadership.’ For details, see Niaz A Khan and Ataur Rahman Belal, ‘The Politics of the Bangladesh Environmental Protection Act’ (1999) 8(1) Environmental Politics 311, 316; Aminuzzaman, above n 149.
158.
Bangladesh first prepared a Guideline for Environmental Impact Assessment (EIA) in 1992 under the Flood Action Plan. Afterwards, a Manual for Environmental Impact Assessment was prepared in 1995 to clarify the technical aspects of EIA. There is another instrument, namely the Guidelines on Environmental issues Related to Physical Planning, developed by the Local Government Engineering Department in 1994. The Environmental Conservation Rules 1997 (Bangladesh) requires all that projects have their environmental impact assessment made following these guidelines and manuals. For details, see Khorshed Alam, The Environment and Policy-Making in Bangladesh (2007) 255.
159.
This makes the task difficult for the environmental policy-makers. It becomes hard for them to decide whether the welfare gains of a project will outweigh the ensuing loss (i.e., cost). If the projection of this impact were to be valued in monetary terms, it would be easier for them to project this impact more clearly. For details, see Alam, above 255.
160.
Peigi Wilson et al., ‘Emerging Trends in National Environmental Legislation in Developing Economies’ (1996) UNEP’s New Way forward: Environmental Law and Sustainable Development 185, 186.
161.
Section 12 of the Bangladesh Environmental Conservation Act 1995: ‘Environmental Clearance Certificate. No industrial unit or project shall be established or undertaken without obtaining, in the manner prescribed by rules, an Environmental Clearance Certificate from the Director General’.
162.
Wolfgang Wiegel, ‘Compliance with Environmental Regulations in the Textile Industry (2008).
163.
According to Schedules 2–11 of the Environmental Conservation Rule 1997 (Bangladesh).
164.
Pinaki Roy, ‘All Dhaka Rivers Left “Dead”: Industrial Pollution Goes Unabated on Docile Action’, The Daily Star (Dhaka), 27 April 2009.
165.
BGMEA, above n 129.
166.
Shakhawat Hossain, ‘Most RMG Factories Not Fully Compliant, Survey Finds’, The New Age 18 April 2009.
167.
Parvez Hassan and Azim Azfar, ‘Securing Environmental Rights Through Public Interest Litigation in South Asia’ (2003) 22 Vargina Environmental Law Journal 215, 221.
168.
Jona Razzaque, ‘Human Rights and Environment: National Experience’ (2002) 32(2) Environmental Policy and Law 100, 103.
169.
Hassan and Azfar, above n 163, 222.
170.
For details, see Asian Development Bank, ‘Country Environmental Analysis Bangladesh’ (Asian Development Bank, 2004) 42–43, www/adb/org/Document/CEas/BAN/BAN-CEA-Jul2004.pdf at 14 December 2010.
171.
There are contradictory views regarding the number of factory inspectors. For instance, where a study conducted by PROGRESS (a joint program of the Ministry of Commerce of Bangladesh and the Federal Ministry of Economic Cooperation and Development of Germany) mentions that this country had only 53 factory inspectors for all sectors in 2007, A K M Nasim states that until mid-2005, Bangladesh had only 86 inspectors under the Chief Inspectors of Factories and Establishments. For details of these studies, see Chowdhury and Denecke, above n 89; A K M Nasim, ‘Occupational Safety of Formal and Non-formal Workers: Factory Act and the Roles, Advantages and Limitations of Labour Administration’ (2008) (2nd) Labour 5.
172.
For details, visit ICAB http://www.icab.org.bd/member_stat/member_stat.pdf at 22 October 2011.
173.
For details, see Shafiq Rahman, ‘Sub-Standard Standards of BSTI: Caught in the Net of Corruption and Failure, the Bangladesh Standards and Testing Institution Fails to Protect Consumers from Sub-Standard Products’ (2011) 10(16) PROBE News Magazine http://www.probenewsmagazine.com/index.php?index=2&contentId=2989 at 22 October; Recently, this body has won accreditation from the Indian National Accreditation Board for Calibration and Testing Laboratories (NABL). For recent developments, see Monira Minni, ‘BSTI Gets NABL Accreditation’, The Financial Express (Dhaka), 25 March 2011.
174.
Currently the total number of Judges in this apex Court is 98. For details, Mizanur Rahman Khan, ‘Question Raised in Judges Appointment’ The Prothom Alo (Dhaka), 21 October 2011; Bangladesh Supreme Court http://www.supremecourt.gov.bd/scweb/contents/Judiciary_2010.pdf at 22 October 2011.
175.
Other economies at the 13th position are Ecuador, Ethiopia, Guatemala, Iran, Kazakhstan, Mongolia, Mozambique and the Solomon islands. Of 183 economies, Bangladesh ranks 120th on Transparency international’s Corruption Perception index 2011. For details, see Transparency International, ‘Corruption Perception index’ http://cpi.transparency.org/cpi2011/ at 2 December 2011.
176.
For details, see Transparency International Bangladesh http://www.ti-bangladesh.org/research/TIB%20%25Annual%20Report%202010.pdf at 22 October 2011; Iftekharuzzaman, ‘Corruption Perceptions Index 2010: Why Have We Failed to Improve?’, The Daily Star (Dhaka), 27 October 2010.
177.
Darren Sinclair, ‘Self-Regulation Versus Command and Control? Beyond False Dichotomies’ (1997) 19(4) Law & Policy 537.
178.
See generally, Collin Scott, Regulation in the Age of Governance: The Rise of the Post-Regulatory State, the Politics of Regulation: Institutions and Regulatory Reforms for the Age of Governance (2004), 145; Christine Parker, ‘Meta-Regulation: Legal Accountability for Corporate Social Responsibility?’ in Doreen McBarnet, Aurora Voiculescu and tom Campbell (eds), The New Corporate Accountability: Corporate Social Responsibility and the Law (2007) 5, 218; for recent developments in this legal approach within the health sectors in the UK and Canada, see F McDonald, ‘Patient Safety Law: Regulatory Change in Britain and Canada’ (2010).
179.
M Lahdesmaki, ‘When Ethics Matters–interpreting the Ethical Discourse of Small Nature-Based Entrepreneurs’ (2005) 61(1) Journal of Business Ethics 55; L J Spence, ‘Does Size Matter? The State of the Art in Small Business Ethics’ (1999) 8(3) Business Ethics: a European Review 163.
180.
Michael Peters and Kerry Turner, ‘Small and Medium Company Environmental Attitude and Participation in Local-Scale Voluntary Initiatives: Some Practical Applications’ (2004) 47(3) Journal of Environmental Planning and Management 449.
181.
Michael Jensen advocates for Enlightened Shareholder Value as follows: ‘it is obvious that we cannot maximise the long-term market value of an organisation if we ignore or mistreat any important constituency. We cannot create value without good relations with customers, employees, financial backers, suppliers, regulators, communities, and so on.’ Michael Jensen, ‘Value Maximisation, Stakeholder theory and the Corporate Objective Function’ (2001) 7(3) European Financial Management 297, 309.
182.
For the Companies (Amendment) Bill 2009, visit http://www.prsindia.org/uploads/media/Company/Companies%20Bill%202009.pdf at 8 June 2011.
183.
India CSR, New Mining Bill Proposes 26 % Profit to Share, http://www.Indiacsr.in/article-1517-New-Mining-Bill-proposes-26-percent-Profit-to-share.htmlat 8 June 2011.
184.
Christine Parker and Olivia Conolly, ‘Is there a Duty to Implement a Corporate Compliance System in Australian Law?’ (2002) 30(4) Australian Business Law Review 273,288.
185.
The decision of the House of Lords in this appeal can be found at http://statutelaw.blogspot.com/2011/04/tesco-supermarkets-limited-vnattrass.html at 27 July 2011.
186.
The Trade Descriptions Act 1968 (UK) can be found at http://www.legislation.gov.uk/ukpga/1968/29 at 27 July 2011.
187.
For a detailed discussion on this case see Celia Wells, ‘Corporate Liability and Consumer Protection: Tesco v Nattrass Revisited’ (1994) 57(5) the Modern Law Review 817; for other cases on corporate liability and consumer protection see Warwickshire County Council v Johnson [1993] I All ER 299. the Divisional Court decision was noted in 56 MLR 227, Tesco Stores Ltd v Brent London Borough Council [1993] 2 All ER 718 (QBD, DC), Seaboard offshore Ltd v Secretary of State [1994] 2 All ER 99 (HL).
188.
See Colin Scott, ‘Criminalising the Trader to Protect the Consumer: The Fragmentation and Consolidation of Trading Standards Regulation’ in Loveland (ed), Frontiers of Criminality (1995) 165 on recent British legislation.
189.
Joanna Gray, ‘How Regulation Finds its Way through the Corporate Veil’ (1997) 4 European Financial Services Law 254, in B Rider (ed), the Corporate Dimension (1998) 266. Gray cites the following cases: Re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500.
190.
Division 12.3(6).
191.
New Zealand Securities Commission, Corporate Governance in New Zealand: Principles and Guidelines–a Handbook for Directors, Executives and Advisors (2004), 2. Available at www.ecgi.org/codes/documents/cg_handbook2004.pdf at 14 December 2010.
192.
Australian Stock Exchange Corporate Governance Council and Australian Stock Exchange, Principles of Good Corporate Governance and Best Practice Recommendations (2003). Available at http://www.csaust.com/AM/Template.cfm?Section=ASX_Corporate_Governance_Council_guidelines&Template=/CM/ContentDisplay.cfm&ContentID=7504 at 14 December 2010.
193.
For the text and its application, visit http://www.business-humanrights.org/Home 17 June 2012.
194.
Some of these companies are Cisco Systems, Barclays, Credit Suisse, Asia Pulp & Paper, adidas Group ets. For details, visit http://business-humanrights.org/Links/Repository/1009990 17 June 2012.
195.
It was passed by the East Pakistan Provincial assembly on September 19, 1956.
196.
Most of the developed and developing economies have legal frameworks to encourage grassroots participation in corporate regulation. The Environmental Defenders’ office in Australia supports different stakeholders with the aim of associating community and environmental groups with development projects, resource exploitation activities and corporate and governmental strategies. For details, visit http://www.edo.org.au/ at 21 November 2011; The Resource Management Act 1991 (New Zealand) provides opportunities to community stakeholders and interest groups to interfere in business and governmental organisations’ strategies related to social and environmental issues. For details, see Philip John Gendall, Jessie E Hosie and D F Russell, The Environment: International Social Survey Program, International Social Survey Program (1994).
197.
A Farouk, Commodity Distribution System in Bangladesh (1983) 189 in Mizanur Rahman, ‘Consumer Protection in Bangladesh: Law and Practice’ (1994) 17(3) Journal of Consumer Policy 349, 352.
198.
M Ali Quazi, ‘Consumer Protection: An Evaluation’, The Daily Khabor (Dhaka), 15 March 1986, in Rahman, above 352.
199.
Quazi, above 15.
200.
Mizanur Rahman, ‘Consumer Protection in Bangladesh: Law and Practice’ (1994) 17(3) Journal of Consumer Policy 349, 351.
201.
Quazi, above n 21, 12.
202.
Rahman, above n 20, 353–354.
203.
Rahman, above n 20, 354.
204.
Imposing high taxes on tobacco products is a commonly used indirect way to curb tobacco consumption. Apart from this, another effective indirect means of curbing this consumption is the banning of tobacco-related advertisement. Developing economies like China, India and South Africa have legal provision as stringent as the legal provisions for the banning of this type of advertisement in the strong economies.
205.
An effective strategy to this end would be the development of civil society and NGOs actions against this business. With the support of legislative provisions, these non-legal drivers could play an active role against the promotion of this business. For instance, the Action on Smoking and Health in Thailand has successfully spread the drawbacks of this business amongst potential entrepreneurs considering this business. This NGO played an active role in the development and implementation of Thailand’s tobacco control policy. Its action serves as a model for others. For details, visit http://www.enotes.com/public-health-encyclopedia/tobacco-control-advocacy-policies-developing at 16 November 2011.
206.
India has created some indirect but substantive programs to enforce the provisions of the Consumer Protection Act 1986 (India). Under the Department of Consumer Affairs, this country has created a national committee with sufficient regional committees to monitor these programs. These programs include: increasing consumer awareness, strengthening the consumer grievance redressal machinery, developing standards laboratories for weights and measures, strengthening consumer forums, developing the infrastructure of the national commission etc. For details, visit http://fcamin.nic.in/Events/Eventdetails.asp?EventId=1471&Section+Consumer%20welfare%20Fund& ParentID=0&Parent=1&check=0# at 15 November 2011.
207.
United Nations Economic and Social Commission for Asia and Pacific, ‘Regional Action Program for Environmentally Sound and Sustainable Development, 2001–2005’ (2006) available at http://www.unescap.org/mced2000/rap2001-2005.pdf at 22 November 2011; Koh Kheng-Lian and Nicholas A Robinson, ‘Strengthening Sustainable Development in Regional inter-Governmental Governance: Lessons from the ‘ASEAN Way’ (2002) 6 Singapore Journal of International and Comparative Law 640.
208.
The Special Powers Act 1974 (Bangladesh), the Trade Mark Act 1940 (Bangladesh), the Dangerous Drug Act 1930 (Bangladesh), the Standards of Weights and Measures ordinance 1982 (Bangladesh) are other legislations that have provisions related to consumer interests. These laws are based on pecuniary and physical punishments. The coercion detailed in the consumers’ interest related provisions in these laws could be used as meta-regulating objects in the Consumer Protection Act 2009 (Bangladesh) if these provisions are acknowledged in this Act.
209.
R Chaganti and A Phatak, ‘Evaluation and Role of the Corporate Environmental Affairs Function’ (1983) 5 Research in Corporate Social Performance and Policy 183,187.
210.
Parker, above n 3, 57.
211.
Ibid.
212.
Christine Parker, Is There A Reliable Way to Evaluate Organisational Compliance Programs? Regulation: Enforcement and Compliance (2002) 107, 108.
213.
Michael Hopkins, Corporate Social Responsibility and International Development: Is Business the Solution? (2007) 174.
214.
Ibid.
215.
Ibid.
216.
See Neil A F Popovic, ‘The Right To Participate in Decisions That Affect the Environment’ (1992) 10 Pace Environmental Law Review 683, 684–85. The recently introduced the Right to Information Act 2009 (Bangladesh) is a strong step towards ensuring the right obtain information from public organisations in this country. However, this legislation does not have adequate provisions to facilitate public participation in public and private programs; it has simply provided scope for the public to apply for access to certain types of information, and the whole regulation is under the bureaucratic control. For a synopsis of this Act, visit http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/Bangladesh/Bangladesh_rti_act_2009_summary.pdf at 2 November 2011. This is also the case for the Enactment and Conservation of National Environmental Quality Act 1992 (Thailand). For details on the bureaucratic culture that hampers the free flow of information in the Asia-Pacific region, see Elena Petkova, Closing the Gap: information, Participation, and Justice in Decision-Making for the Environment (2002). The Environmental Protection Regulation 1997 (Nepal) provides the right to relate both public and private projects that concern their interests. The objective of this legislation is to ensure that ‘anybody and everybody concerned about a proposed project shall be given an opportunity to voice their concerns.’ Surya P Subedi, ‘Environmental Inputs Into the Planning Process and Access to Justice’ (1998) 28 Environmental Policy and Law 96, 99; the recent step taken by China for releasing weekly reports of the air quality of major cities is worth mentioning here. The Air Pollution index of Hong Kong and Monthly Environmental Information Bulletin of South Korea are two more instances that show the use of information for developing stakeholders’ ability to impact on polluters. For more information, visit http://epd.gov.hk/epd/eindex.html at 22 November 2011; http://eng.me.go.kr/main.do at 22 November 2011.
217.
For details on asymmetric information see N Gregory Mankiw, Principles of Economics (2005) 479.
218.
This corporation, along with the entrepreneurship development training activities, is responsible for (i) allotment of developed industrial estates (ii) credit arrangement and end use supervision (iii) design, development, and distribution of prototypes through its design centre (iv) research and development activities (v) management and skills development; and (vi) market study and marketing assistance (e.g., trade fairs). With these core objectives, CSR practices as a tool for extending the business case for small and medium companies could be incorporated as another objective of this corporation. It is worth noting that this corporation has immense impact on the development of small and medium companies.
219.
In 2008–09, BSCIC established 6,020 and 4,691 small companies and the total investment in these units is Tk. 2,445.99 crores. In this financial year, 9,168 industrial units in its 74 industrial estates have produced products worth Tk. 24,683.67 crores of which products worth Tk.13,325.80 crores have been exported. It is establishing a new tannery industrial estate and has taken an initiative to establish a pharmaceutical industrial park in Bangladesh. For details, see the Ministry of Finance of the Government of Bangladesh, Bangladesh Economic Review (2009) Finance Division, Ministry of Finance http://www.mof.gov.bd/en/budget/er/2009/c8.pdf at 25 November 2010.
220.
Wilfred Luetkenhorst, ‘Private Sector Development: The Support Programs of the Small and Medium Companys Branch’ (Working Paper No 15, UNIDO, 2005)18, 21. For more information, see, http://www.unido.org/cluster 18 November 2011. In corporate regulation, the use of ‘clustering’ approach could be a vital meta-regulating strategy to raise CSR. The crux of this strategy is that the incorporation of CSR principles into companies would be easier if these are related to other facilitative services to businesses. The clustering approach is meant to minimise unnecessary delay, cost and ambiguity and hence, the incorporation of CSR issues in business would not be considered as a burden if these could be included in this approach. Another dimension related to this strategy, especially in weak economies, is that this approach helps to minimise the number of procedures involved in starting a business, to minimise the correlation between high levels of regulation and perceived corruption. To illustrate the nexus of this approach and strategy, the case of adding CSR issues with corporate license and registration, taxation and custom regulations of few East African economies is an important mention here. For details, see the Ministry of Planning and National Development, Improving the Legal and Regulatory Environment Through Trade Licensing Reform (1997) in Fiona Macculloch, ‘Government Administrative Burdens on Small and Medium Companys in East Africa: Reviewing Issues and Actions’ (2001) 21(2) Economic Affairs 10,11; World Bank, Doing Business in 2007: How to Reform (2006) 12.
221.
This legislation is available at http://www.legislation.govt.nz/act/public/1991/0069/66.0/DLM230265.html at 21 November 2011.
222.
For this legislation, visit http://www.env.go.jp/en/laws/policy/basic/index.html at 21 November 2011.
223.
Shiro Kawashima, ‘A Survey of Environmental Law and Policy in Japan’ (1994) 20 North Carolina Journal of International Law and Commercial Regulation 231, 252.
224.
Ibid 248.
225.
Economic and Social Commission for Asia and the Pacific, State of the Environment 1995 (1995) 473 in Roda Mushkat, International Environmental Law and Asian Values: Legal Norms and Cultural Influences (2005) 41.
226.
P Brew and F House, ‘The Business of Company: Meeting the Challenge of Economic Development Through Business and Community Partnerships’ (Paper presented at 2002) 26.
227.
Joaquin L Gonzalez, Corporation–Community Collaboration for Social Development: An Overview of Trends, Challenges, and Lessons from Asia, Corporate Social Responsibility In the Promotion of Social Development: Experiences from Asia and Latin America (2004), available at http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=2220311 at 29 March 2011.
228.
Ibid.
229.
The Vietnam Chamber of Commerce and industries is a national organisation that assembles and represents companies and associations from all economic sectors across Vietnam. The Prime Minister’s Research Commission is a think-tank that provides advice and proposals to the Prime Minister and leaders of the Vietnamese Government on economic, social and administrative reforms. The Central institute of Economic Management is a research institute that advises the Vietnamese government on economic laws and policies.
230.
Under the Environmental Protection Agency Act 1994 (Ghana) has established the Environmental Protection Agency, a body corporate endowed with the power to prescribe and enforce environment standard. A major task of this agency is to incorporate some of the norms that were crystallised at the 1992 Rio de Janeiro Earth Summit. Among the norms this agency is trying to incorporate is the environmental impact assessment. The powers of enforcement of environmental impact assessments and that of the Environmental Protection Agency have been enhanced by the enactment of the Environmental Assessment Regulation 1999 (Ghana). This regulation is a ‘comprehensive peace of legislation that deals with procedures and other matters appertaining to environmental impact assessments, environmental audits and management plans; such as public hearings, complaints and penalties.’ G A Sarpong, ‘Environmental Law and the Ghanaian Court’ in Michael R anderson and Paolo Galizzi (eds), International Environmental Law in National Courts (2002) 113.
231.
For details, see Tamara Bekefi, ‘Vietnam: Lessons in Building Linkages for Competitive and Responsible Entrepreneurship’ UNIDO and the Kennedy School of Government, Harvard University, 2006.
232.
Access to required information helps to overcome the information failures that are particularly common in LDCs. Without an adequately enabling environment, it is difficult for any type of support program to have much impact. For details see Luetkenhorst, above n 42, 15.
233.
For details of this law, visit http://www.bangladeshbank.org.bd/aboutus/bankregulations/bbankorder.pdf at 4 September 2010.
234.
Department of Off-site Supervision (Bangladesh Bank) Circular No. 1 of 1 June 2008. this circular can be found in Appendix 1 in S K Sur Chowdhury, Saiful Islam and Qazi Mutmainna Tahmida, Review of Corporate Social Responsibility (CSR) Initiatives in Banks (2008 & 2009) (2010), available at http://www.bangladesh-bank.org/pub/annual/csr/csr0809.pdf at 20 May 2011.
235.
Globalscan, Press Release, GlobeScan 22 April. 2004 in Karin Buhmann, ‘Corporate Social Responsibility: What Role for Law? Some Aspects of Law and CSR’ (2006) 6(2) Corporate Governance 196; Ataur Rahman Belal and David L Owen, ‘The Views of Corporate Managers on the Current State of, and Future Prospects for, Social Reporting in Bangladesh: An Engagement-Based Study’ (2007) 20(3) Accounting, Auditing & Accountability Journal 472; M H Khan, ‘The Effect of Corporate Governance Elements on Corporate Social Responsibility (CSR) Reporting’ (2010) 52(2) International Journal of Law and Management 82.
236.
Chowdhury, above n 57, 10.
237.
S K Sur Chowdhury et al., Review of CSR Initiatives in Banks 2010 (2011) 1.
238.
Bangladesh Bank, http://www.bangladesh-bank.org at 10 December 2010.
239.
Chowdhury, above n 57, 23–24.
240.
According to the Banking Companies Act 1991 (Bangladesh), all banks are liable to report their financial performance to their shareholders.
241.
No. 5411.
242.
Ceyhun Gocenoglu and Isil Onan, ‘Turkey Corporate Social Responsibility: Baseline Report’ (European Commission and UNDP, 2008) 49.
243.
No. 193.
244.
No. 3628; Gocenoglu and onan, above n 65, 49.
245.
A UK-based consulting company working in Bangladesh for research on CSR.
246.
See Reed Consulting (Bangladesh) Ltd., Corporate Social Responsibility: An Awareness Guide for Companies Operating in Bangladesh (2008).
247.
Ibid.
248.
The commonly used legal strategy for increasing such commitment is the sanction of strict punishment measures. The Public Health Liability Act 1991 (India) holds company boards and managers personally liable for death, injury or any damages to property arising from any act or plan of the company. In M. C. Mehta v Union of India, the Supreme Court of India describes the scope of company acts for which the board of directors and managers of a company may be punished under this Act. The Court held that ‘an company, engaged in a hazardous or inherently dangerous industry and posing a potential threat to the health and safety of workers and persons residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity which it has undertaken.’ for details, see AIR (SC) (1987)1086, 1087. Hong Kong also follows this strategy. The Water Pollution Control Ordinance 1980 (Hong Kong) holds company directors, managers, partners and secretaries liable in so far as the offence is related to their consent and negligence. The Water Pollution Control Act 1991 (Taiwan), the Environmental Protection Act 1997 (Pakistan), the Labour Protection Act 1998 (Thailand), the Employment of Children Act 1991 (Pakistan) are other pieces of legislation that are largely based on the deterrent factor of punishment provisions.
249.
Sara Charlesworth and Belinda Probert, ‘Why Some Organisations Take on Family-Friendly Policies: The Case of Paid Maternity Leave’ (2005) http://airaanz.econ.usyd.edu.au/papers/Charlesworth_Probert.pdf at 23 May 2011.
250.
Ibid.
251.
Ibid.
252.
Belinda Smith, Chapter 1 n 16.
253.
There could be provisions related to the performance of companies in Sections 215, 216, 221 of the Bangladesh Labour Laws 2006 (Bangladesh). These sections mention the power of the court, arbitrator and tribunal in deciding their decisions.
254.
Ronald K Mitchell, B R Agle and Dona J Wood, ‘Toward a Theory of Stakeholder Identification and Salience: Defining the Principle of Who and What Really Counts’ (1997) 22(4) Academy of Management Review 853; M B E Clarkson, ‘A Stakeholder Framework for Analysing and Evaluating Corporate Social Performance’ (1995) 20(1) Academy of Management Review 92.
255.
Michael W Hoffman and Robert E Frederick, Business Ethic–Readings and Cases in Corporate Morality (3rd ed, 1995).
256.
Ibid.
257.
Neil Gunningham, Beyond Compliance: Next Generation Environmental Regulation, Regulation: Enforcement and Compliance (2002) 50, 58.
258.
Edward Freeman, Strategic Management: A Stakeholder Approach (2010); see also UN Norms on the Responsibilities of Transnational Corporations and other Companies with Regard to Human Rights 2003 at paragraph 22.
259.
Ibid 31.
260.
WBCSD, Corporate Social Responsibility: The WBCSD’s Journey (2002) 2.
261.
Without an adequately enabling environment, it is difficult for any type of support program to have much effect. For details, see Luetkenhorst, above n 43, 15.
262.
In Bangladesh, according to the Environment Conservation Rules 1997, all companies have to obtain an Environmental Clearance Certificate but this certificate is usually issued without adequate verification and no effective inspection is made regularly. For specific evidence, see Wolfgang Wiegel et al., Compliance with Environmental Regulations in the Textile Industry http://www.ecorys.com at 11 January 2009.
263.
S Frost, ‘Garment Factory Collapses in Bangladesh’ (2005) 1(16) CSR Asia Weekly 12–13.
264.
P Brew and F House, ‘The Business of Company: Meeting the Challenge of Economic Development Through Business and Community Partnerships’ (Paper presented in 2002). For related issues, see the United Nations Conference on Trade and Development, above n 35, 29.
265.
Bekefi, above n 54.
266.
Ibid.
267.
For an in-depth study on this issue, see Annemarie Devereux, ‘Human Rights by Agreement? A Case Study of the Human Rights and Equal Opportunity Commission’s Use of Conciliation’ (1996) 7 Australian Dispute Resolution Journal 280.
268.
For details on the Human Rights and Equal Opportunity Commission, visit http://www.hreoc.gov.au/ at 27 July 2011.
269.
The objectives of the said Act include (a) ensuring the welfare of workers and their families; (b) implementation of different welfare projects for the benefit of workers and their families; (c) providing financial assistance to workers who are physically handicapped; (d) assistance to workers for treatment; (e) assistance to the families of any deceased worker; and (f) paying stipends to the children of workers and insurance premiums from the fund.
270.
The other members are the Deputy Secretary of the Ministry of Womens’ and Children’s Affairs, the Director, Textile (EPB), A representative from the Ministry of Environment and Forest, the Chief Inspector, Factories and Establishment, The Directors of BGMEA and BKMEA; The President of Bangladesh Independent Garment Workers Union Federation (BIGUF); Representatives of Workers Unions, Director Operations, Fire Service and Civil Defence.
271.
ILO, Social Compliance and Decent Work: Bangladesh Perspective (Papers and Proceedings of the National Tripartite Meeting, 2007)16.
272.
Smith, above n 39, 721.
273.
Ibid.
274.
Committee of Experts on the Application of Conventions and Recommendations (CEACR), 2008/79th Session. Observations on the application of ILO convention 100 (Equal Remuneration Convention) and on the application of ILO Convention 111 (Discrimination—Employment and Occupation).
275.
Smith, above n 39, 722.
276.
One of the most notable steps within the reformation of the environmental regulation framework of developing economies is to frame a substantive environmental legal regulation framework. However, many of them have not been able to reach this elusive goal. The Philippines though has an arguably progressive environmental law, its environmental legal regulation heavily depends upon several other Acts and Presidential decrees. The core environmental legislation of Singapore is dependent upon more than 12 other legislations. the Enhancement and Conservation of the National Environmental Quality Act 1992 (Thailand) was created as an integrated pollution and natural resource management law, however it primarily deals with the pollution control issues. This scenario is prevalent in the case of weak economies. For instance, the Law on Environmental Protection and Natural Resource Management 1996 (Cambodia) is ‘extremely broad and diffuse in its language, and does not prescribe adequate guidance in many instances.’ the 1998 Framework Environmental Protection Law (Laos) is an exceedingly general document that does not have specific provisions to manage sectors such as water quality, air quality, waste management and natural resource exploitation. Similar frameworks in Indonesia and Vietnam are thought to be progressive but their implementation strategies are based on ad hoc and intermittent strategies. On the contrary, the New Zealand Resource Management Act 1991 and the Basic Environment Law 1993 of Japan set out comprehensive environmental management frameworks. For a detailed discussion, see Roda Mushkat, above n 48. The discussion on the scope of incorporating meta-regulation strategies in this section focuses on the development of the Code to assist the promotion of sustainable management of natural and physical resources at the manufacturing company level.
277.
It is generally agreed that ‘national court decisions can promote the implementation of international environmental law in several ways. First, by applying an international environmental norm, national courts implement the norm in the individual case. Second, if courts implement international norms with sufficient regularity, national court decisions could have a deterrent effect; they could help shape future conduct. Finally, through their decisions, national courts can help incorporate international norms into national law, thereby supplementing (or even correcting) the work of legislatures’ in D Bodansky and J Brunnee, ‘The Role of National Courts in the Field of International Environmental Law’ (1998) 7(1) Review of European Community & International Environmental Law 11,13; for a general discussion on the role of the justice delivery system on environmental regulation, see Judith Schiffer and Marion Dowling, ‘Reflections on the Role of the Courts in Environmental Law’ (1997) 27(2) Environmental Law.
278.
Lal Kurukulasuria, ‘Role of Judiciary in Promoting Sustainable Development’ (1998) 28 Environmental Law and Policy Journal 27, 28.
279.
International business and social organisations suggest business organisations ‘support a precautionary approach to environmental challenges’, ‘undertake initiatives to promote greater environmental responsibility’ and ‘encourage the development and diffusion of environment-friendly technology’. Accordingly, for example, the international Chamber of Commerce Business Charter for Sustainable Development introduced 16 principles for environmental management covering, inter alia, the establishment of environmental management on the basis of priority, integration of management systems, efficient use of energy and materials, sustainable use of renewable resources, minimisation of adverse environmental impact and waste generation, and safe and responsible disposal of residual waste. For details, see Principles 7, 8 and 9 of the United Nations Global Compact. Available at http://www.unglobalcompact.org/AbouttheGC/theTenPrinciples/index.html at 18 June 2011; ICC, Business Charter for Sustainable Development (1991) ICC http://www.bsdglobal.com/tools/principles_icc.asp at 20 June 2010.
280.
Indian judiciary played the most important role in this development. The landmark case of Rural Litigation and Entitlement Kendra v Uttar Pradesh (AIR SC 359 (1985)) laid the basis for the subsequent recognition of a constitutional right to environmental protection by judicial activism. This case has clearly established the link between the international environmental instruments and environmental protection mechanisms at the national level. in Vellore Citizens’ Welfare Forum v Union of India (AIR SC 2715 (1996)), the court declares that ‘The rule[s] of Customary international Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the court.’ this case has established that, for instance, the precautionary principle and the polluter pays principle are ‘accepted as part of the land.’ Afterwards this position was affirmed in five subsequent cases: M. C. Mehta v Union of India (Badkhal and Surajkund Lakes Case, 3 SCC 715 (1997)), S. Jagannath v Union of India (2 SCC 87 (1997)), M.C. Mehta v Union of India (Calcutta Tanneries Case, 2 SCC 87 (1997)), M.C. Mehta v Union of India (Taj Trapezium Case, 2 SCC 353 (1997)) and M.C. Mehta v Kamal Nath (1 SCC 388 (1997)). Thus, the justice delivery system has been involved in incorporating the substantive notion of sustainable development of the environment in India. For a detailed discussion on this development, see Michael R anderson, ‘International Environmental Law in Indian Courts’ in Michael R anderson and Paolo Galizzi (eds), International Environmental Law in National Courts (2002) 145–165.
281.
This has been emphasised in the Johannesburg Principles on the Role of Law and Sustainable Development. these principles set the role of the justice delivery system in weak economies as follows: ‘[T]he fragile state of global environment requires the Judiciary, as the guardian of the rule of Law, to boldly and fearlessly implement and enforce applicable international and national laws, which in the field of environment and sustainable development will assist in alleviating poverty and sustaining an enduring civilisation, and ensuring that the present generation will enjoy and improve the quality of life of all peoples, while also ensuring that the inherent rights and interests of succeeding generations are not compromised.’ for these principles, visit http://www.unep.org/dpdl/symposium/Principles.htm.
282.
The Brundtland Report defined sustainable development as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. For this report, visit http://www.un-documents.net/wced-ocf.htm at 29 March 2011. According to G Handl, the essence of this concept is living off nature’s ‘income’ rather than squandering its ‘capital’. G Handl, ‘Environmental Security and Global Change: The Challenge to International Law’ (1990) 1 Yearbook of International Environmental Law 3, 24.
283.
The concept of sustainable development is linked to other principles such as intergenerational and intragenerational equity, the principle of integration, sustainable use of natural resources and biological diversity.
284.
The 1972 Stockholm Conference acknowledges the need to provide assistance to developing economies to enable them to meet their obligations towards the environment and, on the other hand, to secure their right to development. Principle 4 of the Rio Declaration 1992 states that ‘in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.’ At the same time, it talks about the ‘right to development’ which has recently been recognised by the General assembly. For G A Resolution, see Environmental Policy and Law (28)1, 1998 at 51.
285.
AIR 1988 All 121. See P Leelakrishnan, ‘Law and Sustainable Development in India’ (1991) 9 Journal of Energy and Natural Resources Law 193, 195. 1 SCR 637 (1987) on the restriction on mining operation causing ecological hazard: (1987); AIR 1988 HP 4. KLT 580 (1990) 583 on the sustainable use of natural resources. AIR 1996 SC 2715 and (1996) 5 SCC 647 regarding leather industries that were closed in favour of environment.
286.
For an optimistic view in this regard, see A T M Afzal, ‘Country Representation-Bangladesh’ in the Report of the Regional Symposium on the Role of the Judiciary in Promoting the Rule of Law in the Area of Sustainable Development (Colombo, SACEP/UNEP/NORAD,1997) 61–72.
287.
9 SCC (1998) 250.
288.
A P Pollution Control Board v. Professor M V Nayudu (1999) SOL Case No. 53; AIR 1997 SC 221.
289.
Writ Petition No. 914 of 1991. This petition was decided on 28 August 1996 by the Supreme Court of India; AIR 1996 SC 2715.
290.
1997 SC 160.
291.
1997 SC 221.
292.
1997 SC 734.
293.
Principle 15, the 1992 Rio Declaration. Available at http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163&l=en at 29 March 2011.
294.
Generally, the onus of proof lies with the person opposing an activity to prove that it does or is likely to cause environmental damage. When the precautionary approach is applied, this would shift the burden of proof and require the person who wishes to carry out an activity to prove that it will not cause harm to the environment.
295.
Bangladesh Environmental Lawyers association, the petitioner of M. Farooque V. Bangladesh and Others (1997) 49 DLR (AD) case submitted that they represented not only the present generation but the generation yet unborn. The petitioner mentioned Minors Oposa Case in which the twin concepts of ‘intergenerational responsibility’ and ‘intergenerational justice’ were presented by the plaintiffs to prevent the misappropriation or impairment of the Philippine rainforest. According to the Bangladeshi court, standing in the Oposa Case was allowed because ‘The right to a balanced and healthful ecology’ was a fundamental right in the Constitution of the Philippines. Several laws in the Philippines also apply this principle. The Constitution of Bangladesh, expressly does not provide any such right. See especially Mustafa Kamal J in pg.16, para. 53. For the judgement of Minors Oposa Case, see 33 ILM 173 (1994).
296.
Azfal n 109, 61–72.
297.
Some Bangladeshi legislation that could hold this approach would be the Bangladesh Wild Life (Preservation) Order 1973 (Bangladesh), the Marine Fisheries Ordinance 1983 (Bangladesh), the Brick Burning (Control) Act 1989 (Bangladesh), the Public Parks Act 1904 (Bangladesh), the Agricultural and Sanitary Improvement Act 1920 (Bangladesh), the Protection and Conservation of Fish Act 1950 (Bangladesh). Some major policies are the National Environment Management Action Plan 1992, the Forest Policy 1994 and the Forestry Master Plan 1993.
298.
H Smets, The Polluter Pays Principle in the Early 1990s, The Environment after Rio: International Law and Economics (1994) 136–137; S E Gaines, ‘The Polluter-Pays Principle: From Economic Equity to Environmental Ethos’ (1991) 26 Texas International Law Journal 463, 465–467; J R Nash, ‘Too Much Market: Conflict Between Tradable Pollution Allowances and the Polluter Pays Principle’ (2000) 24 Harvard Environmental Law Review 465.
299.
AIR SC 965 (1987); 3 SCC 212(1996); AIR SC 2715 (1996); 2 SCC 411(1997). All these Indian cases dealt with the application of the pollutoer pays principle, payment of the clean-up cost and absolute liability of the polluters.
300.
State v M.D. WASA, CLC (Lahore) 471, 475.
301.
Wikipedia, ‘Public Interest Litigation’ http://en.wikipedia.org/wiki/Public_interest_Litigation at 20 May 2011.
302.
In this litigation, the claimant needs to show that there are aggrieved persons who were directly and obviously injured or would be injured by an official act; in this litigation, it is important to prove that the aggrieved person’s right recognised by statute has been infringed, and a causal relationship between the contested act and the alleged adverse effect on the aggrieved person’s legal interest. This is a strict interpretation of the requirements for public interest litigation. Some developing economies such as those of Malaysia and Thailand follow this interpretation while India and Pakistan follow a flexible interpretation. see Tsun Hang Tey, ‘Public interest Litigation in Malaysia: Executive Control and Careful Negotiation of the Frontiers of Judicial Review’ in Po Jen Yap and Holning Lau (eds), Public Interest Litigation in Asia (2011); Vipon Kititasnasorchai and Panat Tasneeyanond, ‘Thai Environmental Law’ (2000) 4 Singapore Journal of International & Comparative Law 1; Surya Deva, ‘Public Interest Litigation in India: a Quest to Achieve the Impossible?’ in Po Jen Yap and Holning Lau (eds), Public Interest Litigation in Asia (2011).
303.
A.I.R. SC. 298,317 (1981).
304.
AIR S.C. 149, 188 (1982).
305.
Established in 1992, BELA is the best known Bangladeshi NGO working with the broad objective of promoting environmental justice and contributing to the development of sound environmental jurisprudence. BELA is a member of IUCN–the World Conservation Union, Environmental Law Alliance Worldwide and the South Asian Watch on Trade, Economics and Environment. In 2003 it received the Global 500 Role of Honors of the United Nations. For details, visit http://www.belabangla.org/bela/index.php?option=com_content&view=article&id=48:introducing-bela&catid=40:belabangla at17 November 2011.
306.
Writ Petition No. 891 of 1994. Dr. Mohiuddin Farooque was the founder of BELA.
307.
Writ Petition No. 998 of 1994.
308.
The Supreme Court of Bangladesh is the highest court of this country. This court is divided into two Divisions: The Appellate Division and the High Court Division. Both these divisions sit in Dhaka. The High Court Division has some original jurisdiction and it is the appellate authority of the subordinate courts. It decides all writ petitions. Against the decision of this Division, an aggrieved person can go to the Appellate Division. The decision of this Division is final. These Divisions are safeguarded by the Constitution and they provide clarification of any issues related to the constitutional provisions. For details, see Articles 94–113 of the Constitution of the Peoples’ Republic of Bangladesh.
309.
G. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press, 1991, pp xii+425; G. Rosenberg, ‘Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann’, (1993) 17 Law & Social Inquiry 761–778; for a critique of Rosenberg’s arguments, see M. Feeley, ‘Hollow Hopes, Flypaper, and Metaphors’, 17 Law & Social Inquiry 745–760.
310.
U Baxi, ‘Preface’ in SP Sathe (ed.), Judicial Activism in India, New Delhi: Oxford University Press.
311.
L Rajamani, ‘Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability’, (2007) 19(3) Journal of Environmental Law 293, 296.
312.
It would be worth mentioning the latest reported PIL at this point. In a leave to appeal against High Court Division order in Writ Petition No. 3503 on 2009, the Appellate Division of the Supreme Court of Bangladesh has put the maxim ‘Salus Papuli Suprema lex’ in the imperative, that is, ‘Salus Papuli Suprema Lex Esto’—let the safety of the people be the supreme law. The impact of this notion taken by the apex court would be many. One of those effects would be the use of PIL as a means of getting personal redress. For details, see 62 DLR(AD) 2010, 428–435.
313.
To illustrate this, a latest High Court Division order in a PIL would be a worth mention here. Police was investigating the death of a journalist couple in Dhaka and was taking time for the sake of proper investigation. Meanwhile, Human Rights and Peace for Bangladesh (HRPB) filed a PIL asking for judicial direction for a speedy investigation of this death. On February 28, the court asked the government to explain within 2 weeks why it should not be directed to find out the motive for the murder of journalist couple and to bring the killers to justice. The court also directed the authorities concerned not to make any statement to the media without any specific development in the ongoing investigation into the double murder. For details, visit http://www.thedailystar.net/newDesign/news-details.php?nid=224312.
314.
Parvez Hassan and Azim Azfar, ‘Securing Environmental Rights Through Public Interest Litigation in South Asia’ (2003) 22 Virginia Environmental Law Journal 215, 246.
315.
H Ward, ‘Securing Transnational Corporate Accountability Through National Courts: Implications and Policy Options’ (2000) 24 Hastings International & Company Law Review 451.
316.
A Sahay, ‘Environmental Policy and Corporate Environmental Behaviour in India: Social, Economic and Legal Aspects’ (2006) 3(6) Progress in Industrial Ecology, an International Journal 559; J Nolan and LTaylor, ‘Corporate Responsibility for Economic, Social and Cultural Rights: Rights in Search of a Remedy?’ (2009) 87 Journal of Business Ethics 433.
317.
P S Sangal, Law As a Tool for Environmental Conservation and Management in India, Environmental Law in India: issues and Responses (1996); C M Abraham, Environmental Jurisprudence in India (1999); for details, see L Rajamani, ‘Public interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability’ (2007) 19(3) Journal of Environmental Law 293.
318.
Writ Petition No. 186 of 1994.
319.
The capital city of Bangladesh.
320.
Parvez Hassan and Azim Azfar, ‘Securing Environmental Rights Through Public Interest Litigation in South Asia’ (2003) 22 Virginia Environmental Law Journal 215, 246.
321.
BELA and Bangladesh Legal Aid and Services Trust (BLAST) are prominent amongst the NGOs working to expand public interest litigation in Bangladesh. Both these NGOs are dependent on the donations of foreign development agencies and international NGOs. For instance, the cost to Bangladesh Legal Aid and Services Trust for public interest litigation is covered by the donation this NGO gets from OXFAM-NOVIB, DANIDA and DIAKONIA. For details, visit http://www.blast.org.bd/who/donors at 18 November 2011; in this regard, the observation of Professor Rehman Sobhan of the Centre for Policy Dialogue is worth mentioning. He states: ‘The reality of the matter is that NGOs cannot substitute the Government any more than the private sector can…so whilst this may not have been the intention of the donor community, the objective results have been not just a downsising, but also a devaluation of the State and an increasing reliance, at least in the social sector, on NGOs which has become a counterproductive exercise.’ For details, see Richard Phinney, ‘A Model NGO ?’, Radio Netherlands, 5 December 2002, available at http://www.globalpolicy.org/component/content/article/176/31470.html at 18 November 2011.
322.
On 21 November 2011, the National Parliament of Bangladesh passed an amended version of this Act. Four Sections of the previous version of this Act have been amended as not vital. For instance, according to the amendment in Section 6, the national committee for the administration of the fund created under this Act will be presided over by the Minister for the Ministry of Law, Justice and Parliamentary Affairs. Earlier, the head of this committee was selected from the bureaucrats of this ministry by the Minister.
323.
In an adversarial system, the court’s orders for costs largely depend upon the discretion of the court. In most of the environmental cases in India, the cost was decided on a case-by case-basis. For instances of some of these cases, see S Ahuja and S Muralidhar, People, Law, and Justice: A Casebook of Public-interest Litigation (1997).
324.
The idea of the bounty hunter was presented in Chap. 5 of this book.
325.
There could be some drawbacks to this strategy. For instance, in the UK, this system is being used in personal injury cases where the injury arises from exposure to toxins, pollution or injuries resulting from an accident. Critics say that this system will destroy the chances of environmental test cases as most lawyers would not take such a risk under the conditional fees system. Moreover, the insurance companies may not be willing to provide commercial cover with reasonable premiums. Most of environmental lawyers may be unwilling to take such cases due to the high investigative costs, time taken and overall risk in terms of success.
326.
The general public prefers to resolve their problems and disputes at the community or local level in an informal way. In legal circles this way is popularly known as ‘alternative dispute resolution’ or simply ADR. The forms of these alternative methods may vary depending on the culture, practice and traditions of people in their particular contexts. While in some societies the practice has become redundant, alternative dispute resolution could provide the people of Bangladesh with a viable alternative to the formal legal system. For this, ADR needs to be institutionalised in this country. Recently, the long-practiced ADR mechanism of this country has undergone some changes and experiments and results in different outcomes. While the purpose of these experiments is for clarification of the justice delivery system, creation of more options for addressing disputes and making the formal justice delivery system cost effective; the outcomes do not always reach their targets. Rather, the experiments are facing many obstacles with different issues. There are several areas where there are no obstacles, since all parties prefer an easy and speedy trial with a non-bias verdict. Along with the positive notions in the outcomes of the experiments for institutionalising ADR in Bangladesh, there are still some factors that hinder its institution. For details, Stephen Golub, Non-State Justice Systems in Bangladesh and the Philippines (2003); Sarder Asaduzzaman, Rethinking Community-Based Justice Mechanisms: An Action Research Reflection From Bangladesh, Applied Conflict Transformation Studies (2009); Zahidul Islam Biswas, ‘The Village Court: A Neglected but Potential Rural Justice Forum’, The Daily Star 1 August 2008.
327.
The Pollution Dispute Settlement Act 1970 of Japan has provided legal expression of this practice. Vietnam offers the services of government-appointed mediators to litigants who prefer to resolve disputes through private negotiation. The Public Nuisance Disputes Mediation Act 1992 of Taiwan is another instance of legal sanction to dispute mediation and arbitration at the local level. For details, see toan, ‘Vietnam’ in Terri Mottershead (ed), Environmental Law and Enforcement in the Asia-Pacific Rim (2002)5 77; Tang, ‘Taiwan’ in Terri Mottershead (ed), Environmental Law and Enforcement in the Asia-Pacific Rim (2002) 469–71.
328.
Most of the developing economies are following this meta-regulating strategy. The South Korean government, for instance, operates an environmental improvement charge system and a deposit refund system that encourages companies to reduce their discharge of pollutants. The Malaysian government has reduced import duty, sales tax and excise duty to assist companies to purchase efficient technologies for manufacturing waste management and air pollution control facilities. In the Philippines and Thailand, companies are offered tax incentives to import industrial waste management systems and to adopt sustainable consumption and production practices. For a detailed study, see Roda Mushkat, above n 48, 47; for the latest approaches of some economies, visit http://www.un.org/esa/dsd/dsd_aofw_ni/ni_index.shtml?utm_source=OldRedirect&utm_medium=redirect&utm_content=dsd&utm_campaign=OldRedirect at 20 November 2011.
329.
Lal Kurukulasuriya, ‘Strengthening Compliance and Enforcement of Environmental Regulations in the Asia Pacific: The Role of Capacity Building and Networking’ (2000) 5(1) Asia Pacific Journal of Environmental Law 1, 3.
330.
First and foremost, this must be achieved in government agencies and policies. With the current lack of suitable policy and coordination, these agencies frequently overlap which results in the misuse of public resources. For instance, policies and programs related to land and water are run by ten ministries, seven directorates/departments and 19 statutory bodies. Environmental management programs are run by more than 16 ministries, 13 departments and 13 other subordinate organisations. In another example, in Cambodia, this lack of coordination was exacerbated by the power sharing arrangements in government, as the key personnel of the ministries are usually from various political parties and groups, some of whom are antagonistic. In Myanmar, there are significant problems in coordination among the agencies responsible for environmental development. To develop effective coordination, this country has created a National Commission for Environmental Affairs and various divisional and state authorities, but due to the lack of a guiding policy and private sector involvement with these authorities, its output remains negligible. the one-stop agency for environmental services in the Philippines, are considered as well-meaning but its outcome been less than satisfactory due to the ‘resistance of vested interests, corruption, the overriding needs of the development and the lack of financial and technical resources.’ Alan Khee-Jin Tan, ‘Recent Institutional Developments on the Environment in South East Asia-A Report Card on the Region’ (2002) 6 Singapore Journal of International & Comparative Law 891, 906. For details, see Roda Mushkat, above n 48, 43; Mohammad Alauddin and Clement Allan Tisdell, The Environment and Economic Envelopment in South Asia: An Overview Concentrating on Bangladesh (1998)108–9; APCEL Reports: Cambodia, available at http://law.nus.edu.sg/apcel/publications.html at 19 November 2011.
331.
Wilfred Luetkenhorst, ‘Corporate Social Responsibility and the Development Agenda: Should Small and Medium Companys Care?’ (Working Paper No13, UNIDO, 2004) 7.
332.
Parker, above n 35, 107, 108.
333.
Parker, above n 4, 278.
334.
Ibid 109.

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School of Accountancy, Queensland University of Technology, Brisbane, Queensland, Australia
Mia Mahmudur Rahim

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Rahim, M.M. (2013). Legal Regulation of CSR in Weak Economies: The Case of Bangladesh. In: Legal Regulation of Corporate Social Responsibility. CSR, Sustainability, Ethics & Governance. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40400-9_6

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DOI: https://doi.org/10.1007/978-3-642-40400-9_6
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