Fast-track trial along with confidence on judiciary is now public demand in Bangladesh. Recently the citizens call for speedy justice for securing their rights. 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 mandate 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’.
To response outcry for justice, Judiciary has been relentlessly working and delivering service to ensure justice speedily and sincerely crossing COVID-19 pandemic and other existing problems. Now justice towards rape victims is an expounding issue in the country. Judiciary tries to resolve the pending cases speedily. In Bagerhat District, concerned Tribunal of the Women & Children Repression and Prevention disposed of two rape cases within seven and ten days from the framing of charges. In Kustia, the concerned Tribunal disposed of a sensitive rape case within three working days from framing of charge. This judgment is the first case disposing in the shortest time in the country.
There is another important development and achievement in the above three cases, all cases were investigated quickly and two of those police reports were filed within 7 days which are rare in rare in Bangladesh. A tribunal of Dhaka has disposed of and delivered judgment on the sensational rape case of DU Student on November 19, 2020 within 13 working days. In all stated cases, the accuseds were convicted as life imprisonment after following all procedures. To be mentioned here, a number of cases on murder, rape and other sensitive matters has been disposed of across the country in every day.
In 2019 and 2020, Judiciary has been working with due diligent and care to ensure justice speedily. Hundreds of sensitive cases have been disposed of within shortest time in this passage of time. The reflection of pro-people drive by the judiciary is remarkable and eventual in our criminal justice system to make a change. Our subordinate judiciary has some glorified and eventual works on some sensational and significant cases such as BDR mutiny case, seven murder case of Narayonganj, Nusrat Jahan Rafi case, Khadija case of Sylhet, Rajon murder case of Sylhet, Rupa gang rape case of Tangail, Holy Artisan Attack case, Banani Accident case, MP Liton Murder case, Rifat murder case, Piyel murder case etc. Judiciary sets a revolutionary example and shows a ray of hope for justice to people that this institution can perform well and deliver speedy and fair justice when all concerned stakeholders aid and work effectively according to the law.
In our criminal justice system, fair and speedy trial is fundamental right which is recognized in Article 35(3) of the Constitution. We have almost 32 lac cases in the subordinate judiciary and almost 18 lac criminal cases out of them with almost 1800 judges and magistrates in the courts. From 2008 to 2018 in 11 years, the filing of cases in subordinate courts is 14,599,437 and the disposal of cases is 11,391,690. In 2008 the filing of cases was 10, 87,559 and it was 16,95,305 cases in 2018. The filing rate of cases is now almost double but the capacity of the strength of the judiciary has not been extended with the demand of justice. In 2007 the magistracy was separated from executive to Judiciary. In the last 12 years, about 88,47,168 cases have been lodged in the courts of magistrate. The rate of disposal of cases is 96.58% on average. The Law Commission expressed and recommended in their report to appoint 5000 Judges to dispose of the backlog of cases speedily.
The Supreme Court of Bangladesh and the Ministry of Law, Justice & Parliamentary Affairs have taken some effective initiatives to ensure quick trial and ensure justice. Newly 47 Women & Children Repression Prevention Tribunals, seven Human Trafficking Prevention Tribunals, Six Cyber Crimes Tribunals & two Anti-Terrorism Tribunals were set up in 2018 to 2020. In comparison of the existing courts, tribunals, filing of cases and ongoing dimensional crimes, to secure fair and speedy trial is very challenging keeping existing system, courts, laws and facilities. The aid of all quarters in relation with justice is a key remedial approach for a fair, speedy and acceptable manner.
Production of witness in Courts for trial and protection of victim and witnesses are the basic part to conduct speedy trial. In Bangladesh, there is no law for the protection of witness and no stringent detail law for the management of witness in the Courts. In 2006 Bangladesh Law Commission placed a report regarding recommendation for enacting legislation on ‘the protection of victim & witness’ along with a draft Act and in 2011 the commission also filed another report to enact the said law. But after 13 years have been passed, the law has not been finalized to enact.
For the proper witnesses in the trial, the most of the old cases are pending for long time. For the lack of evidence of the proper witnesses, the conviction rate in Bangladesh is one of the lowest positions of the world. Recently honorable High Court Division (HCD) has intervened in the case of ‘Rahel @ Raihan vs State’ (Criminal Case no 7253 of 2019) 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 in this judgment.
In the Evidence Act 1872 which is core law for evaluation of evidence, there is no clear provision to accept digital, audio and visual evidence. For fast-track trial, recording digital evidence and digital court system are essential to accelerate the justice in Bangladesh. To introduce an effective law on taking digital evidence, recently honourable HCD directed to enact legislation for taking digital evidence to the government in the judgment of ‘the State vs Oli’ (Death Reference no 61 of 2011 & Criminal Appeal no 6592 of 2011). The HCD stated that “we have already pointed out that no amendment to the Evidence Act or any supplemental law providing the manner of proving the contents of electronic record/document and its generation into printed material and certification has yet been made for the purpose of regular proceedings under the general laws. It is, therefore, expected that the Legislature would take initiative for amendment of the existing Evidence Act or new legislation to address the issues.”
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. Most of the cruel murders and heinous crimes got clemency for the defect of evidence and witnesses in the courts. 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.
To introduce speedy and fast track trial, the Government of Bangladesh enacted the Speedy Trial (Bichar) Tribunal Act 2002 and set up some tribunals across the country in divisional districts. According to section 10 of the Speedy Trial Tribunal Act 2002, the tribunal must dispose of cases within at best 135 working days. According to section 16, the tribunal can accept the audio, video, digital record, CD, DVD, still photo and video footage as evidence in the trial. To expedite the justice on the sensitive and heinous crimes’ cases, this is the time to set up more Speedy Trial Tribunals in all old districts specially.
It is pertinent that the Law and Order Disruption (Speedy Trial) Act 2002 was enacted for taking speedy action on some aggravated crimes through Magistrates. Unfortunately no magistrate court under this Act has been established yet though the age of Act is 18 years. It is an effective tool to deliver fast-track justice through magistrates.
In some special Acts where the law sets time frame for trial but for huge backlog, inactive participation of prosecution and insufficient facilities, the concern courts or tribunals do not complete the trial within that stipulated time. The HCD on July 18, 2019 issued seven directives to accelerate trials of the cases filed under the Women and Children Repression Prevention Act 2000.
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 for the fast track special courts (FTSCS) to expedite trial of rape and protection of children against sexual offences (POCSO) cases. In 2019 after the rape and murder of veterinarian doctor who was named as Disha in November 27, 2019, the State of Andhra Pradesh (AP) introduced two special legislations which are known as Disha Acts. The Disha Act of AP makes the investigation within 7 days and trial within 21 working days as stringent and fast-track for setting justice in sexual offences.
To establish rule of law and root out culture of impunity, a fast-track trial and fair justice system are integral part of justice. For such effective action, the Government should set up new courts and tribunals as per the ratio of the cases. The Judiciary is now trying to ensure speedy and fair trial with existing facilities and lowest number of Judges in South Asia comparing population.
The writer is Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.