Now Justice against rape is a crying demand in Bangladesh. Recently gruesome gang rape incidents in Sylhet MC Collage & Khagrachori Hill District where a married woman and a tribal disabled girl were raped by some barbaric and ferocious rapists. Demand for fast-track trial in rape cases is a need of hour. In last year a student of University of Dhaka was raped recklessly at the capital just at evening which was highly discussed across the country. Moreover the offence of rape was almost doubled in 2019 comparing to other years’ statistics.
Now people want a speedy justice and punishment to the rapist. According to Ain O Shalish Kendra (ASK), 975 women and children have been raped till September, 2020 and 363 victims were children among them whereas 43 women and children were killed after rape. On average 108 women and children were raped in each month in this year. According to the finding of the research of ASK, 80% rapists are the known persons of the victims. 1406 victims have been admitted in 11 one stop crisis centres (OCCs) because of rape and sexual assault till August, 2020. [Prothom Alo, September 30, 2020]
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. 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. The two old sayings are ‘Justice delayed, Justice denied’ & ‘Justice harried, Justice buried’. In 2019 and this year, Bangladesh judiciary has performed well showing its capacity to ensure fast-track trial in many sensitive cases of the country Nusrat Jahan Rafi case, Rifat Murder Case and others 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. Now almost 1, 70,000 cases have been pending in 101 Tribunals across the country. In corona pandemic, the Tribunals were closed for almost five months and the backlog of cases has been increased. On an average almost 1683 cases are pending before every tribunal. Moreover the Women & Children Repression Prevention Tribunal is in charge of the Human Trafficking Tribunal and the Children Court too. For such huge burden and backlog, the Tribunal can’t dispose the cases speedily. It is almost impossible to dispose of cases within 180 working days from framing of charge for tribunals.
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. Section 9 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 very much explicit that the punishment regarding rape, gang rape, murder with rape, custodial 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. This provision is effective and there is no way to hang up the investigation for undetermined period.
The tribunal has to maintain certain rules or procedures in execution of its trial. Section 20 of this Act 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.
In comparison of the existing tribunals, filing of cases and ongoing crimes, to ensure fair and speedy trial is very challenging decision keeping existing system, courts, 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 law for the management of witness. For the proper witnesses, a lot of 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. 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.
It is highly pertinent to state that the High Court Division (HCD) on July 18, 2019 issued seven directives in the case of Md. Rahel @ Raihan Vs State [Criminal Appeal no 7253 of 2019] with some epoch making guidelines to produce witness, set up monitoring committee and conclude trial to the frame work stipulated time of 180 days for accelerating specially trials of the rape and murder after rape cases filed under the Women and Children Repression Prevention Act 2000. The HCD also expressed to enact the witness protection law and witness management provision in the court.
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. In 2019, the central government of India sets out a national scheme guideline for the fast track special courts (FTSCS) to expedite trial of rape, sexual assault 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 1, 66,882 cases. On average 167 cases will be for one court. In December, 2019 some of states of India have taken revolutionary decision to increase the FTCs such as in Uttar Pradesh 218 more FTCs have been set up and in Andhra Pradesh 36 special courts were approved for trial under the Disha Act 2019 whereas the Odisha State has set up more 45 FTCs for rape cases.
Disha, Veterinarian who was raped and murdered on November 27 in 2019 in Hyderabad. For such incident the Andhra Pradesh government enacted two separate Acts to ensure fast-track trial and investigation. 36 special courts have been established for trial of rape and sexual offences. A special Police unit has been introduced to conduct investigation and file report within 7 working days. The court will conclude trial within 14 working days.
To establish rule of law and root out culture of impunity in rape and sexual harassment cases, a fast-track trial and fair justice system are integral part of justice towards women and children. For setting fast-track trial, the government can specially set up some tribunals only for rape cases in all divisional districts and metropolitan cities. Moreover the Government should set up new tribunals as per the ratio of the cases. It is to be mentioned that professional and skilled investigating agency, accountable prosecution to the court and authority, effective witness management and protection system, monitoring of the cases in locally and centrally are also vital and core parts of the fast-tract trial.
The writer is a member of Bangladesh Judicial Service & Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.