For recent communal violence and atrocities around the country, the question of the protection of victims and witnesses has been discussed and focused for ensuring the justice completing investigation and trial. It is presumed that for security, no one is deposed in the court in case of communal violence in the last years. For such scenario, there is no case convicting the accused in terms of atrocities and violence on the minority. Our Minister of Law, Justice & Parliamentary Affairs assured and promised (October 24, 2021) to enact the law on the protection of victims and witnesses within the shortest possible time [BBC Bangla]. Recently, a serious communal vandalism has been taken place in 16 Districts on the Hindu community and in the puja mandops.
Bangladesh is a common law practicing country and we follow the adversarial legal system. Constitutionally and conventionally the long well established rule is “everyone is presumed innocent until and unless he is convicted beyond all reasonable doubts.” The Article 35(3) of our Constitution provides fundamental rights to the accused. So the burden of proof is primarily upon the prosecution and victims. According to section 101 to 106 of the Evidence Act -1872, the burden of evidence can be shifted but initially and solely it is up to victims and prosecution.
The victim of a crime plays a very important role in the administration of criminal justice both as complainant/informant and also as a witness for the prosecution. But these victims are nowadays seriously vulnerable to threats, intimidation, coercion and harassment by the offenders or their associates who try prevent the victims from testifying before the investigating officer at the stage of investigation or from giving evidence before the courts and tribunals at the trial of the case.
Now crimes have been syndicated and organised posing a challenge to the existing administration of law and order. Particularly, murder, kidnapping, abduction, rape, human trafficking, acid throwing against women and children and narcotics cases have considerably increased and are being organised on a well co-ordinated basis. It is essential that the victim should be able to give his/her testimony in court or tribunal freely and without any fear or pressure for the purpose of securing the ends of justice.
In our subordinate court, it is very normal scenario that the witnesses are not spontaneous to come in the courts for giving evidences only for fear, intimidation, and threat from accused and in absence of any protection measure. The well-known case of Nusrat Jahan Rafi is also a symbol of lack of protection of victim. Sometimes, the crime is committed by the law enforcement agency’s personnel when the victim is in their custody. In this connection Yesmin murder case, Pollobi Police Station Case, Sheema murder case and Narayanganj seven murder case can be stated. The case of Tupan Chowdhury of Bogura is also a tragic example of lack of protection towards victims.
The Police Bureau of Investigation (PBI) conducted a research and published a report in July, 2019 on the banditry cases of the country. PBI stated in their report clearly that 50% of dacoity cases failed in the courts for hostile witnesses. The Narcotics Control Department admitted that 48.45% of case was failed and the accused was acquitted in last 10 years because of the witnesses.
High Court Division (HCD) in few cases sets some guidelines to speedy trial and ordered to formulate monitoring cell and monitoring committee for ensuring the production of witnesses in the courts, especially in the case of the Women and Children Repression Prevention Tribunal cases. The HCD expressed in some orders and judgments that the government will take proper initiative to make law on the protection of victim and witness.
In our legal system, there are a few laws which provide the provision of the protection of victim and witness. One of the finest Acts is the Prevention of Torture and Custodial Death Act of 2013. It provides a comprehensive protection in the custody of the law enforcement force or authorities. Another statute is the Women and Children Repression Prevention Act-2000. Section 9 (5) and 14 deal with interest and protection about the victim. To be mentioned here, section 14 of the Prevention of the Human Trafficking Act-2012 provides a separate offence to give any threat, intimidation to victim and witness as well as create any barrier to investigation and trial of the offence, and punishment is up to 7 years. In 2013, the Parliament enacted a new Children Act that comprehensively covers the protection and legal rights of the children in the light of International standard. The International Crimes Tribunal Rules of Procedure, 2010, has a separate section 58A to deal with the witness and victim comprehensive protection.
The law on the protection of victim and witness was enacted in many countries; for example the USA in 1982, the UK in 1999, Australia in 1994, Hong Kong in 2000, Colombia in 1997, Germany in 1998, South Africa in 1998, Italy in 2001, Pakistan in 2017 and Sri Lanka in 2015. India has taken initiative to formulate law and draft as “The Witness Protection Scheme 2018” and the Delhi Provincial Government enacted law in 2015. In 2008, United Nations on the Drug Convention had made a standard model protection of witness. UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 is also a milestone for making such laws.
Recently a writ petition has been filed in HCD by Children Charity Bangladesh (CCB) on 24 February, 2021, seeking to formulate laws and scheme for the protection and compensation towards victims of rape and sexual assault. Interestingly in India, compensation for victims is ensured through a national scheme formulated by the Supreme Court of India in 2018. In conclusion, I would say that a comprehensive victim and witness protection law is now a need of the hour. The aim should be to protect the victims and witnesses and grant them certain rights and benefits to ensure their appearance before the investigative bodies and the courts or tribunals to give their evidence in respect of the alleged crime without fear of threat or intimidation of the accused.
The writer is a Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni