Now Justice against rape is a crying demand in Bangladesh. Recently a student of University of Dhaka was raped recklessly at the capital just at evening. The matter indicates that our security system is highly vulnerable and alarming to women and children. Moreover the offence of rape was almost doubled in 2019 comparing to other years’ statistics. Now people want a speedy justice and exemplary punishment to the rapist. According to Ain O Shalish Kendra (ASK), 1413 women and children were raped and 76 were murdered after rape, 224 were attempted to rape and 10 women were committed suicide for justice in 2019. The ASK depicts also that 1696 children were victims of violence and 996 cases were filed for justice in 2019.
The report of Bangladesh Mohila Parishad buzzes that in 2019, 4622 women and children were victimized for rape and sexual harassment in Bangladesh. 1703 women and children were raped across the country. 237 were gang raped and 77 were murdered after rape. 19 women were hanged by themselves after rape for their modesty and justice. According to Bangladesh Shishu Adhikar Forum (BSAF), at least 1,005 children were raped in the country in 2019. The incidents almost doubled compared to 2018, when about 571 children were raped. As per the statistics of BSAF, the rape of children was increased 76.01% in 2019 from 2018. 84 children were raped per month in the year of 2019 and 4381 children were victims of sexual harassment and different types of torture.
Odhikar, a human rights watchdog, reports that 635 women and children were raped in 2018 and 47 were murdered after rape. The said report also stated that the women and children of 783 in 2017, 757 in 2016, 789 in 2015 and 666 in 2014 were raped in Bangladesh. These figures indicate that the state of women and children security is just alarming and the rape and sexual offences have not been controlled within the normal law and order process. Social awareness and justice against the perpetrators can be the solution to get rid of it.
In our judicial process fast-track justice is not an easy matter crossing all barriers to the ways of justice. A court works as per the direction of law taking evidences and giving legal privileges to both parties of the case. Moreover Bangladesh follows adversarial legal system where the victim party is to prove, producing evidences and witnesses in the court, allegation against the accused. The charge must be proved beyond reasonable doubt to convict the accused. The two old sayings are ‘Justice delayed, Justice denied’ & ‘Justice harried, Justice buried’. In 2019 Bangladesh judiciary has performed well showing its capacity to ensure fast-track trial in many sensitive cases of the country keeping huge problems and barriers in the courts.
According to a Supreme Court study report, more than 38,000 cases filed under the Women and Children Repression Prevention Act-2000 (Act of 2000) have been pending with lower courts for more than five years. As of March 31, 2019, a total of 1,64,551 cases under this law were pending with tribunals across the country, the report says. Supreme Court and Ministry of Law, Justice & Parliamentary Affairs have taken some effective initiatives to ensure speedy trial and justice in women and children violence cases. 41 Women & Children Repression Prevention Tribunals were set up in 2018. Now 95 tribunals are working under the Act of 2000 with on an average almost 1700 cases are pending before every tribunal. It is almost impossible to dispose of cases within 180 working days from framing of charge for tribunals as per the mandate of the Act of 2000.
In 2000, the government enacted a very special law, which was amended in 2003 for upgrade, to ensure justice against violence towards women and children. This Act redefines the definition of rape along with section 375 of the Penal Code – 1860 and increased the punishment up to death penalty. Bangladesh is one of the pioneer South Asian Countries who introduced death penalty in the law on rape. Section 9 of the Act of 2000 deals with the punishment of rape which states in section 9(1) “Whoever commits rape with a woman or a child, shall be punished with rigorous imprisonment for life and with fine.” Section 9(2) states that “If in consequence of rape or any act by him after rape, the woman or the child so raped, died later, the man shall be punished with death or with transportation for life and also with fine not exceeding one lac taka.” Section 9(3) postulates about gang rape and states that “If more than one man rape a woman or a child and that woman or child dies or is injured in consequences of that rape, each of the gang shall be punished with death or rigorous imprisonment for life and also with fine not exceeding one lac taka.” Section 9(4) deals with the attempt to rape and provides punishment 5 years to life imprisonment. From the bare reading of the section, it is aptly explicit that the punishment regarding rape, gang rape, murder with rape and attempt to rape is stringent and hard. Even it is much rigorous from that of India.
Section 18 of the Act of 2000 deals with the investigation process which provides special provision to submit the police report (PR) in the Tribunal. The investigating officer (IO) shall submit report within 15 working days when the accused arrested at the time of offence. If the accused is not arrested on spot then the IO shall submit report within 60 working days. If the IO can’t file report, then IO can seek time to the Tribunal and the Tribunal can allow additional 30 days. In such interpretation the IO can get highest time to submit PR within 90 working days at best. This provision is effective and there is no way to hang up the investigation for undetermined period. Section 22 of the Act of 2000 is also effective one which makes mandatory to produce victim before concern Magistrate to record the statement and the said statement will be part of record and evidence to consider the offence in the trial.
The tribunal has to maintain certain rules or procedures in execution of its trial. Section 20 of the Act 2000 provides those procedures of trial. Section 20(1) and (2) state that If the hearing begins in the tribunal, then without break that will run on every working day till the termination of judgment. The tribunal shall complete the proceeding within 180 days from the date of receipt of the case for trial. For our huge backlog and inactive prosecution, the tribunal can’t follow this direction of law in the trial in most of the cases. The High Court Division (HCD) on July 18, 2019 issued seven directives to accelerate trials of the cases filed under the Women and Children Repression Prevention Act 2000. The HC bench of honorable Justice M Enayetur Rahim and Justice Md Mostafizur Rahman ordered the judges of women and children repression prevention tribunals across the country to complete within six months the trials of cases filed for rape and murder after rape. The HCD ordered the tribunal judges to hold continuous hearing of the cases on every working day as per law.
In comparison of the existing tribunals, filing of cases and ongoing crimes of rape and sexual offences, to ensure fair and speedy trial is very challenging decision keeping existing system, tribunals, laws and facilities. The aid of all quarters in relation with justice is a core remedial approach for justice in a fair, speedy and acceptable manner. Trial is the basic part of a case to ensure the justice between victim and accused. There is a saying, it must be seen that Justice has been done. In Bangladesh, there is no law for the protection of witness and no stringent detail law for the management of witness. For the proper production of witnesses in the court, the most of the old cases are pending for trial for long time and the lack of evidence of the witnesses the conviction rate in Bangladesh is one of the lowest of the world.
Recently honorable HCD has intervened in some cases and provided guidelines to produce witness, set up monitoring committee and conclude trial to the frame work stipulated time. The HCD also expressed to enact the witness protection law and witness management provision in the court. Our prosecution who represents the state in the criminal cases is not properly accountable to the authority. Moreover they have no visible accountability and management to aid to the courts for expediting the trial. Even most of the old cases are pending for the production of witnesses in the courts which is exclusively the responsibility of the prosecution and police.
In India, the central government introduced Fast Track Courts (FTC) in 2001 for expedition of trial of severe crimes. In 2013 after rape and murder of Nirbhaya in 2012, the government set up huge FTCs in whole India for ensuring ends of justice. In 2019, the Supreme Court (SC) of India ordered to government to sanction necessary courts for a court on every 100 cases regarding trial of rape and sexual offences. In response of SC in 2019, the central government of India has set out a national scheme guideline for the fast track special courts (FTSCS) to expedite trial of rape and protection of children against sexual offences (POCSO) cases. In this scheme for whole India, 1023 special courts will be set up for trial of 166,882 cases. On average 167 cases will be for one court. In this scheme, for West Bengal 123, Uttar Pradesh 218 and Maharastha 138 courts are approved for speedy trial. In December, 2019 the State of Andhra Pradesh (AP) also enacted two Acts called Disha Act to expedite the rape and sexual offences cases specially in response of cruel rape and murder to a doctor. The AP also introduced death penalty provision in rape cases. The State of AP approved 36 special courts for trial under the Disha Act 2019.
To establish rule of law and cut off culture of impunity in rape and sexual harassment cases, a fast-track trial and fair justice system are integral part towards women and children. For such effective action, the Government should set up new tribunals as per the ratio of the cases following Indian experience. Government should set up high profile effective monitoring cell to watchdog the rape and murder after rape cases specially. Moreover professional and skilled investigating agency, accountable prosecution, witness management and protection, monitoring of the cases are also vital and core parts ensuring justice in rape cases.
The writer is a member of Bangladesh Judicial Service & Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.