Crimes against women in Bangladesh, law and its implementation
According to Ain o Salish Kendro, 128 women were raped, 12 were killed after being raped, 26 were attempted to rape and 2 committed suicide after rape in the month of January and February in 2019. The last murder of Nusrat reveals how inhuman and heinous crimes commit against women in Bangladesh. Obviously this is a very much concerned for all!
Bangladesh passed a special law to control and supress the crimes against women and children in 2000. After 20 years of passing of the special law, the question is raised how much effective the existing special law and related other laws are. The reason is to raise this issue is the purpose of passing of those laws was to supress the crimes in our society. The rate of the reduction of crimes against women could be relative but it shows that the rate of commission of crimes is decreasing day by day. Therefore the question has been raised that the existing laws are not working effectively to serve the purpose.
The title of the Act in Bangla "Nari O Shisu Nirjaton Daman Ain 2000" is a special law. It is both of substantive and procedure law. Therefore many provisions are not adequate. Even the crimes against women are not defined properly. Like the rape is not defined in this Act. Even more, the sexual oppression is defined in narrow manner. Therefore, hurt, grievous hurt, attempt to murder and so on are not defined in this Act. In these situations, this special law depends on the Penal code 1860 of Bangladesh.
The procedure part of this law is too much inadequate. There are many procedural matters related to crimes against women such as medical test, investigation by the law enforcement agency, evidence etc. These are the crucial stages for the conducting of a trial. The special law does not address these all procedural matters properly.
The constitution of Bangladesh provides that law means any Act, Ordinance, Order, Rule, Regulation, Bye-Law, Notification, or other legal instrument and any Custom or Usage, having the force of law in Bangladesh. This definition of law implies that Bangladesh follows the positivism school of law. Though any custom or usage can be the source of law, there needs the force of law. In other word, the Parliament of Bangladesh must make the custom or usage enforceable in Bangladesh as law.
The power of judge for the interpretation of law is also important which school of law Bangladesh follows. Only the Supreme Court of Bangladesh can give an interpretation to the law. The Supreme Court of Bangladesh does not go beyond the law what it is. In other word, the Court does not consider the social interest or demand in the giving of interpretation of law.
So the relationship between the law and the society of Bangladesh can be articulated and seen in the examination of effectiveness test. First one is the effectiveness of law in serving the purpose in the society. Many Acts does not have the effectiveness into the society to control the crimes. For example the special law is not working properly to serve the purpose. What could be the reasons why the special is not effective? First is the law is one of the element of the society. Therefore other existing elements of the society do not help the law to serve the purpose for what it is made. It can be said that Bangladesh legal system thinks that the law shall be understood apart from the social norms.
This view of positivism separates the law of Bangladesh from the society. As the special law is not working properly, the negative impact of other societal factors on law is so high. So there is negative relation between the law and the society. If the other social factor would help the law to serve the purpose, there would have a positive relationship between the law and the society.
Law must adapt itself to the constantly changing conditions of civilization and it is the duty of society, from time to time, to shape the law in conformity to new conditions. The need of change of law is very important time to time. Special law for the prevention of oppression against women and children was passed in 2000.
Many things have been changed over a period of 19 years. Because the globalization impacted on our society to at large extend and the advance technology and social network which came in Bangladesh post 2009. The permanent cultural values need to further be created to control crimes against women in Bangladesh. This Sociological law thinker thought that law can play important role to create that value to certain extend.
The centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself. As Bangladesh has special law in controlling and preventing crimes against women and children, we find that this is not working properly. The enforceable law such as special law and living law in our society are different. The living law dominates the societal life vastly. If the living law of our society is not working properly, how we expect that the special law can be effective. So the explanation of living law is also important to address the problem of women oppression in our society.
Law as a social institution to satisfy the social wants- the claims and demands and expectation involved in the existence of civilized society- by giving effect to as much as we may with least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society and through social control.
A more embracing ad more effective securing of social interest- claims or demands or desires involved in social life in civilized society and asserted in title of that life. As law is a social institution, it must secure social interest and satisfy the social wants through the social control. To control the human conducts in our society, the existing is not sufficient. There needs more than law which are political organized society and social control. These two factors are very important beside the law. So what do we think about the two factors of society of Bangladesh?
The interpretation of the special law needs the social factors to give the definition of crimes against women and to give punishment the accused. Therefore the judges of Bangladesh should have the discretionary power to take into account those societal factors during the interpretation of special law for preventing the crimes against women in Bangladesh.
The special law is not sufficient to control the crimes committing against women in Bangladesh, the judges, lawyer, lawmaker and policy maker should think beyond the law in our society which are also playing a role to control the human conduct.
The writer is a Lecturer in Law at EXIM Bank Agricultural University Bangladesh